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Burial Act 1857

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Burial Act 1857[1]
Act of Parliament
Parliament of the United Kingdom
Long titleAn Act to amend the Burial Acts.
Citation20 & 21 Vict. c. 81
Territorial extent England and Wales
Dates
Royal assent25 August 1857
Repealed1 January 1940 (partial)
Other legislation
Amended by
Repealed byLondon Government Act 1939
Relates to
Status: Partially repealed
Text of statute as originally enacted
Text of the Burial Act 1857 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The Burial Act 1857 (20 & 21 Vict. c. 81) is an act of the Parliament of the United Kingdom. It is one of the Burial Acts 1852 to 1885. Its purpose is to regulate burial grounds. It regulates where and how deceased people may be buried, and provides for the exhumation of remains. The Act made it illegal to disturb a grave (other than for an officially sanctioned exhumation). The Act did not make it illegal to steal a dead body, and it is only the opening of the grave which constitutes an offence, not the removal of the contents.

Guidance for burial ground managers

The Department for Constitutional Affairs provides guidance for burial ground managers, and many aspect of it relate to provisions contained in the Burial Act 1857.[2]

Disturbing a burial and exhumation

Concerns arose that due to pressures of population movement to urban areas during the Industrial revolution that burial graves were reused too quickly.[3] The offence of disturbing a burial included in the Burial Act 1857 was based on the Victorian value that a burial was for eternity.[3][4] Section 25 of the Burial Act 1857 makes it unlawful in England and Wales to disturb human burials without a licence from the Secretary of State, or on ground consecrated by the rites of the Church of England, without the permission of the church.[5] The mechanisms about how the Church of England provides this permission slightly differs depending if the remains are at a church or cathedral.[6] In Scotland, the law is different and covered by the Burial and Cremations Act (Scotland) Act 2016.[5] The powers for a coroner to permit an exhumation fall outside the scope of the Burial Act 1857 and the Coroners And Justice Act 2009 allows them to authorise an exhumation for the purposes of a post-mortem and in relation to criminal proceedings.[7]

Viewpoint of licensing authorities on exhumation

The Blagdon Cemetery [2002] Court of Arches case is the basis of the Church of England exhumation guidelines. The viewpoint of the Church of England is burial is final and only grants exhumation in exceptional circumstances.[8] The Advisory Panel on the Archaeology of Burials in England is a partnership between Historic England, and the Church of England providing guidance based on the law, archaeological research, and theology.[9] In England and Wales, the Ministry of Justice holds the right to issue exhumation licence. Before issuing a licence, consent is required from close relatives of the deceased, grave owner, and burial authority.[10][11]

Modern amendments

In 2004, the government, in response to the problem of the lack of space for new burials, partly a consequence of the Burial Act 1857, held a consultation called, “Burial Law and Policy in the 21st Century”. The consultation considered how to address the problem that when a burial ground became full, it generated no income from new burials, and without income, it may become difficult to maintain and fall into neglect.[4]

London burial authorities in some instances could reclaim and reuse a grave after 75 years, under the London Authorities Act 2007. Extending this provision elsewhere in the country was deliberated.[5] The consultation considered the ‘Exclusive Rights for Burial’. When purchasing a grave, a person usually buys the right to exclusively be buried in it for a period, often 100 years, they do not buy the land. Noted was the possibility of reusing graves with the permission of the Church of England. Section 25 of the Burial Act 1857, amended by Section 2 of the Church of England (Miscellaneous Provisions) Measures 2014, permitted the disturbance of graves with Church of England permission.[5] Successive governments have considered the problem of lack of space for graves but not taken any action.[5]

The 2015 amendments to the Burial Act 1857, allowing the Church of England to reuse graves, were controversial. Such changes have been criticised as offensive and distressing to the living, and disrespectful to the dead.[12]

References

  1. ^ The citation of this act by this short title was authorised by the Short Titles Act 1896, section 1 and the first schedule. Due to the repeal of those provisions it is now authorised by section 19(2) of the Interpretation Act 1978.
  2. ^ Department for Constitutional Affairs (2006). "Guide for Burial Ground Managers" (PDF). Gov.UK. Retrieved 21 May 2018.
  3. ^ a b Edemariam, Aida (17 May 2011). "The nation's cemeteries are nearly full". The Guardian. Retrieved 21 May 2018.
  4. ^ a b Woodthorpe, Kate (2010). "Private Grief in Public Spaces. Interpreting Memorialisation in the Contemporary Cemetery". In Hockey, Jennifer Lorna; Komaromy, Carol; Woodthorpe, Kate (eds.). The matter of death : space, place and materiality. Houndmills, Basingstoke, Hampshire: Palgrave Macmillan. pp. 117–132. ISBN 9780230224162. OCLC 620092674.
  5. ^ a b c d e Fairbairn, C (2017). "Reuse of Graves. House of Commons Briefing Paper 04060" (PDF). House of Commons. Retrieved 21 May 2018.
  6. ^ Locke, Anne (2017). "Human Remains". www.churchcare.co.uk. Retrieved 21 May 2018.
  7. ^ Chief Coroner (2013). "The Chief Coroner's Guide to the Coroners and Justice Act 2009" (PDF). Judiciary.Gov.UK. Retrieved 21 May 2018.
  8. ^ The Church of England Diocese of Norwich (2018). "Exhumation". The Church of England Diocese of Norwich. Retrieved 21 May 2018.
  9. ^ Mays, Simon (2017). "Guidance for Best Practice for the Treatment of Human Remains Excavated from Christian Burial Grounds in England. Second Edition" (PDF). Archaeologyuk.org. Retrieved 21 May 2018.
  10. ^ Ministry of Justice (2012). "Apply to exhume human remains". GOV.UK. Retrieved 21 May 2018.
  11. ^ Ministry of Justice (2012). "Application for a licence for the removal of buried human remains (including cremated remains) in England & Wales" (PDF). GOV.UK. Retrieved 21 May 2018.
  12. ^ Kreft, Helen (6 March 2018). "Church to reuse old graves as it struggles for burial space". Burton Main. Retrieved 21 May 2018.
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