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Funeral directors and undertakers; burial and disposal of deceased persons

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Introduction

England and Wales

Northern Ireland

Scotland

Introduction

 

There is no United Kingdom-wide legislation regulating the business of Funeral directors and undertakers. There is however specific legislation in Scotland (see below).

There is legislation of general application relating to registration of deaths, burials and cremation which differ somewhat in the three jurisdictions of England and Wales, Northern Ireland and Scotland.

UK associations of funeral directors and undertakers

There are two principal associations in the UK which represent funeral directors and undertakers. Both associations provide for member firms to abide by a code of conduct which provides for a complaints procedure and dispute resolution

The National Association of Funeral Directors

The National Society of Allied and Independent Funeral Directors

 

What’s new on this topic [see What’s new page or archive for full item]:

30/01/2020: CMA publishes research papers on the funeral services market

The CMA has published a set of research papers on its work in enquiring into the funeral and crematoria services market. An overview of the work is set out in the paper Funerals market investigation: Overview of key research and analysis.

The CMA has set out a range of possible remedies that may be effective in

addressing possible competition issues which it “may” find in the provision of funeral

director services at the point of need. The four possible remedies that are being considered are:

* the introduction of a quality regulation regime;

*measures to promote greater information transparency;

* price controls; and

* local authority procurement of funeral director services.

The CMA has received evidence that some funeral directors provide poor quality with respect to their care for the deceased, which falls below commonly acceptable minimum standards, and that the existing monitoring regimes are not sufficient to prevent this.

Parties wishing to comment on any of the papers being published today

should send their comments to Funerals@cma.gov.uk by 27 February 2020.

England & Wales

There is no legislation in England and Wales regulating the business of funeral directors or undertakers.

A combination of statutes and regulations provide for the registration of a death and affect how the body of a deceased may be disposed of. The legislation is piecemeal and not in a coherent form. The Law Commission has stated its intention to create a law reform project “A Modern Framework for Disposing of the Dead” which will be commenced when resources allow,

30/01/2020

CMA publishes research papers on the funeral services market

Subject: Competition law; Funeral directors

Source: Competition and Markets Authority (CMA)

The CMA has published a set of research papers on its work in enquiring into the funeral and crematoria services market. An overview of the work is set out in the paper Funerals market investigation: Overview of key research and analysis.

The CMA has set out a range of possible remedies that may be effective in

addressing possible competition issues which it “may” find in the provision of funeral

director services at the point of need. The four possible remedies that are being considered are:

* the introduction of a quality regulation regime;

*measures to promote greater information transparency;

* price controls; and

* local authority procurement of funeral director services.

The CMA has received evidence that some funeral directors provide poor quality with respect to their care for the deceased, which falls below commonly acceptable minimum standards, and that the existing monitoring regimes are not sufficient to prevent this.

Parties wishing to comment on any of the papers being published today

should send their comments to Funerals@cma.gov.uk by 27 February 2020.

Registration of death and authorisation for burial

Relatives and failing them other persons aware of a death of an individual must notify the death to the Registrar of Births and Deaths within 5 days of the death.

A registered medical practitioner who attended the deceased during their last illness (or in his absence another medical practitioner) must sign a certificate in the prescribed form stating the cause of death to the best of his knowledge and belief and deliver the certificate to the registrar. In certain cases of unexpected or unexplained death, the medical practitioner must refer the case to the coroner.

The registrar will register particular of the death on receipt of the medical cause of death or coroner’s certificate and the required information about the deceased from the informant.

Legislation:

Births and Deaths Registration Act 1953

Registration of Births and Deaths Regulations 1987 (1987 No. 2088)

Coroners and Justice Act 2009

Notification of Deaths Regulations 2019

Disposal of body of deceased

There is no legislation requiring any person who has possession or control of a body of a deceased to dispose of the body. At common law, a dead body is not property and therefore cannot be disposed of by will. The deceased’s personal representatives (i.e. executors of the will or administrators of their estate in the absence of a valid will) have the right and possibly the duty to arrange for its proper disposal of the body: Williams v Williams [1882] LR 20 ChD 659; see https://swarb.co.uk/williams-v-williams-1882/

In practice however, the disposal of the body will usually be arranged before the executors or administrators are appointed.

Prevention of the lawful and decent burial of a dead body is an offence under the common law of England, trialable only on indictment and punishable by a maximum sentence of life imprisonment, an unlimited fine or both. See: R v Rausing Sentencing Remarks at https://www.judiciary.uk/judgments/rausing-sentencing-remarks-01082012/

The registrar will issue a certificate for disposal of the body of the deceased upon completion of the registration of the death. If the body is to be cremated, there are certain additional formalities. Any funeral director and operator of a burial ground or crematorium will require the appropriate certificate of the Registrar in order to authorise either burial or cremation to proceed.

It is an offence to dispose of the body of a deceased person except on the registrar’s certificate or coroner’s order. However, the funeral director or other person effecting the disposal by burial of the body of any deceased person may rely on a written declaration in the prescribed form by the person procuring the disposal that a certificate of the registrar or order of the coroner has been issued in respect of the deceased to proceed with the burial. The offence is punishable on summary conviction to a fine not exceeding level 1 on the standard scale.

The person effecting the disposal of the body of a deceased person must notify the disposal to the Registrar on the prescribed form within ninety-six hours of the disposal.

A local authority has a statutory duty to cause to be buried or cremated the body of any person who has died or been found dead in their area, in any case where it appears to the authority that no suitable arrangements for the disposal of the body have been or are being made by anyone else.

There is no prescribed means of disposal of a body. By custom and practice, the usual means are burial and cremation. Cremation was not regarded as lawful in England until 1902 when it was legalised and regulated. Other means, such as cryogenics, are not unlawful but are extremely rare in practice in the UK. See burial, cremation and other means below.

Legislation:

Births and Deaths Registration Act 1926

Public Health (Control of Disease) Act 1984 s.46

Registration of Births and Deaths Regulations 1987 (1987 No. 2088)

Burial and burial grounds

There is no single piece of legislation providing for the manner, place or location of the burial of a deceased individual. The following are the relevant legal aspects as far as Legaleze has been able to ascertain:

Burial grounds

Burial grounds and other places for burial consist of the following types:

* Churchyard: rights of burial and burial procedures are subject to the relevant rules of the church. Usually this will be the Church of England canon law and the regulations of the relevant Diocese and Parochial Church Council. The Anglican Church in Wales has one set of regulations. In some cases the right of burial may have been granted in the past by a Faculty granted by the church authority.

* Cemeteries (and crematoria) operated by local authorities: rights of burial and burial procedures are subject to the Local Authorities' Cemeteries Order 1977 and the cemetery’s rules and regulations.

* Cemeteries established under a (Local) Act of Parliament: burials are subject to the cemetery’s own rules and regulations;

* ‘Woodland’, ‘Green’ and other alternative burial grounds operated in the private sector: burials are subject to the operator’s rules.

* Private land: there is no legislation prohibiting burial of a body. The burial should take place with the permission of the freehold owner who should ensure there are no valid covenants preventing such a burial. No particular rules apply other than as noted below.

* Closed burial grounds: burials grounds may be closed and no further burials permitted by an Order in Council.

Environmental and planning controls: burial grounds are subject to environmental and planning legislation. In the case of a one-off burial in an alternative burial ground or on private land, a licence under the Control of Pollution Act 1974 may be required for the disposal of the body as “controlled waste” and enquiries should be made to the local authority. A criminal offence is committed if controlled waste is disposed of without a licence. Further information about location and depth of graves in relation to water pollution may be found at:

https://www.gov.uk/guidance/cemeteries-and-burials-prevent-groundwater-pollution#minimum-gw-protection

The Environment Agency has published a leaflet “Funeral practices, spreading ashes and caring for the environment”.

Registration of burial

All burials in any burial ground in England and Wales must be registered as soon as possible after the burial in a register book provided for each such burial ground by the church, operator or person who owns the land. The register is required to be kept for that purpose according to the laws in force by Church of England (CofE) law which registers are required to be kept by rectors, vicars, or curates of parishes or ecclesiastical districts in England.

Note: the relevant CofE law is the Parochial Registers and Records Measure 1978. As applied to a private land burial, the effect appears to be that the owner of the land should obtain a register book and enter in it as soon as possible after the burial has taken place enter in the appropriate register book of burials the particulars required in Form No. 2 in Schedule 1 to the Measure and to sign the register. The particulars are:  address or location, local government area, forename(s) and (in block capitals) surname of the deceased, address, date of death, age and date of burial.

Exhumation

Exhumation of a body may not be carried out without a faculty (licence) in respect of a Church of England churchyard or a licence from the Ministry of Justice.

Legislation:

Cemeteries Clauses Act 1847

Burial Acts 1852 to 1885

Registration of Burials Act 1864

Burial Laws Amendment Act 1880

Local Government Act 1972 s.214; the Local Authorities' Cemeteries Order 1977 (19777 No. 204)

Parochial Registers and Records Measure 1978

Additional sources:

Churchyard Regulations – the practicalities of enforcement; https://www.lawandreligionuk.com/2016/06/16/churchyard-regulations-the-practicalities-of-enforcement/ [accessed 19/04/2020]

Natural burial ground: guidance for operators, Ministry of Justice; https://www.gov.uk/government/publications/natural-burial-ground-guidance-for-operators [accessed `9/04/2020]

Cremation and crematoria

No cremation (i.e. burning of human remains) may take place unless the death is duly registered a certificate of disposal permitting the cremation is obtained from the Registrar of Births and Deaths.

No cremation may take place except in a crematorium the opening of which has been notified to the government. Crematoria are subject to inspection by the government. Crematoria consist of:

* Crematoria operated by local authorities;

* Crematoria operated by not-for-profit or other private organisations.

Registration of cremation

A crematorium must appoint a registrar to record cremations and within 96 hours after cremation of the remains of a deceased person, send a notification of cremation to the registrar of births and deaths.

Legislation:

Cremation Acts 1902 and 1952

Local Government Act 1972 s.214; the Local Authorities' Cemeteries Order 1977 (19777 No. 204)

Cremation (England and Wales) Regulations 2008 (2008 No. 284).

Read further: What to do when someone dies: step by step

Other means of disposal

There is no legislation preventing specifically the disposal of a body otherwise than by burial or cremation. However, the prevention of the lawful and decent burial of a dead body is an offence in English common law; see above.

Cryonic preservation: the Human Tissue Authority (HTA) does not regulate cryonics (i.e. the attempt to preserve a person’s entire body after death). There are however significant practical and financial issues to consider; see the HTA article “The law cryonics. In a case decoded in 2016, the court approved of a teenager’s desire for cryonic preservation of her body in the particular circumstances of the case (but noted the difficult ethical and practical issues which arose):

JS v M and F Re JS (Disposal of Body) [2016] EWHC 2859 (Fam) High Court of Justice Family Division: 10 November 2016.

Other alternatives: alternative means of disposal of a body such as ‘Resomation’ (Bio-Cremation), ‘Promession’ and ‘Cryomation’ are listed at https://www.funeralinspirations.co.uk/burial/

Northern Ireland

The statutory law in Northern Ireland regarding the registration of death of a deceased individual appears to be similar to that of England and Wales, though different in detail.

There is no legislation regulating the business of funeral directors or undertakers.

Registration of death and authorisation for disposal

The procedure for registering a death and authorisation of disposal is similar to that in England and Wales. See:

https://www.nidirect.gov.uk/articles/registering-death

https://www.nidirect.gov.uk/articles/arranging-funeral

The common law offence of the prevention of the lawful and decent burial of a dead body applies as in England.

Burial and burial grounds

There is no legislation providing for the manner, place or location of the burial of a deceased individual. The following are the relevant legal aspects of which Legaleze is aware.

Burial grounds and other places for burial consist of Church of Ireland and other graveyards are subject to the rules applicable to the church concerned

Local councils are empowered to operate burial grounds. Such grounds and the burials carried out are subject to the Burial Grounds Regulations (Northern Ireland) 1992 which provide for the management of grounds, rights of burial, register of burials, graves and vaults.

Environmental and planning controls: burial grounds are subject to environmental and planning legislation.

Exhumation of a body from a church graveyard will be subject to any appropriate church laws. Otherwise it must be carried out under the supervision of and subject to conditions imposed by the Director of Public Health for the area.

Legislation:

Public Health (Ireland) Act 1878 s.181

Births and Deaths Registration (Northern Ireland) Order 1976 (1976 No.1041 (NI 14)

Burial Grounds Regulations (Northern Ireland) 1992 (1992 No. 238)

Pollution Prevention and Control Regulations (Northern Ireland) 2003 (2003 No. 46) (as amended)

Cremation and crematoria

No cremation may take place unless an application is made and confirmed by statutory declaration in the prescribed form, made by an executor or by the nearest surviving relative of the deceased or by any other person if a satisfactory reason is shown.

Local councils are empowered to operate crematoria. However at present there is only one crematorium in Northern Ireland, operated by Belfast City Council. There appears to be no legal basis for a private sector entity to operate a crematorium in Northern Ireland.

Legislation:

Belfast Corporation (General Powers) Act (Northern Ireland), 1948)

Cremation (Belfast) Regulations (Northern Ireland) 1961 (1961 No. 61)

Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985 (No. 1208 (N.I. 15))

Scotland

 

The procedure for registering a death is similar to that in England and Wales. A death must be registered within 8 days of death or finding of the body.

It is an offence for person having charge of a place of interment, cremation or other means of disposal of human bodies to dispose of the body of a still-born child or a deceased person without the required, without reasonable excuse.

The law and procedure applying to burial and cremation differ from that in England and Wales. See: Scottish Government : ‘What to do after a death in Scotland - practical advice’.

The profession of funeral director and undertaker is not currently regulated in Scotland. However, in 2007 the Scottish Burial and Cremation Review Group published their report and recommendations on reform of burial and cremation legislation: see Burial and Cremation Review Group Report and Recommendations. This Report contains a discussion of current law relating to burial and cremation in Scotland.

Environmental and planning controls: may be applicable to a private burial as in England and Wales.

Exhumation

Exhumation of a body may not be carried out without a faculty (licence) in respect of a Church of England churchyard or a licence from the Scottish Government.

Burial and Cremation (Scotland) Act 2016

Following the Report and public consultation, the Burial and Cremation (Scotland) Act 2016 was passed and is being gradually implemented to provide a legislative framework for burial and cremation and the profession of funeral director. The Act provides for the repeal of all existing legislation relating to burial and cremation in Scotland. The Act provides for disposal of a body to be by either burial or cremation only. Other means of disposal would require extension of the Act which the Scottish Ministers are empowered to make.

Funeral Directors: the Scottish Government carried out a Consultation on a Funeral Director Code of Practice which closed in September 2019.

Legislation:

Registration of Births, Deaths and Marriages (Scotland) Act 1965

Burial and Cremation (Scotland) Act 2016

The Cremation (Scotland) Regulations 2019 (2019 No. 36)

Additional sources:

Graveyards of Northern Ireland, https://www.culturenorthernireland.org/article/1137/graveyards-of-northern-ireland [accessed 15/04/2020]

 

[Page created: 19/04/2020]

 

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