When I appeared before the Environment Sub-committee on 23 January to give evidence in connection with your inquiry into cemeteries, I offered to write to you about our approach to cases where the disturbance of human remains was required because of necessary works at a burial ground, or where the ground was due to be developed. I understand that you would like to take up that offer.

  The general position is that buried human remains may not be disturbed without a Home Office licence or Bishop's faculty (the latter in relation to removal from one place of burial within consecrated land to another). Applications for Home Office licences are considered very carefully, and normally issued only where purpose of the removal is personal, the consent of the grave owner has been given, and the consent of the next of kin has been obtained. Few such cases are refused, but we will not normally be prepared to proceed with an application if the necessary consents cannot be provided.

  In the case of building work on a burial ground rather different considerations and legislation apply. If the burial ground is included in a redundancy scheme related to a Church of England chuch or churchyard, the Pastoral Measure 1983 requires the remains to be removed before the site can be developed unless the work will not disturb the remains and we can issue an order dispensing with the need for them to be removed. Similar provisions apply, under the Disused Burial Grounds (Amendment) Act 1981, to burial grounds owned by a church or other religious body where it is proposed to erect a building on the site. Where a local authority or similar body acquires a burial ground, regulations under the Town and County Planning Acts require buried remains to be removed before the land can be put to a different use. Under these regulations, however, there is no provision for dispensation of the need to remove the remains, even if they will not be disturbed by the work or development.

  You will appreciate from this that the legislation in relation to these situations is regulatory and there are therefore no removal applications for the Home Office to grant or refuse. The Home Office is required to consider and issue directions for the disposal of the remains where they need to be removed, and this is done diligently and sensitively, with due regard to public decency. We must also consider whether dispensation orders may properly be issued. The question here is whether the remains are likely to be disturbed by the building work. Our practice is to err towards minimising grants of dispensation since we take the view that it is better for the remains to be removed altogether rather than risk them being disturbed, or even destroyed, in the course of the building or development process.

  I know your interest in this is how we can reconcile this approach with the caution I expressed in relation to disturbing remains to allow additional burials to take place.

  There is a difference. In the case of development and building work, decisions will have been taken about the need for the work through the process of applying for a redundancy scheme, planning permission or a compulsory purchase order. The consequences of approving the developments, including the need to remove remains, will have been addressed at this earlier stage. It is not therefore unreasonable for the removal of the remains thereafter to be subject to regulation rather than to a potential Home Office veto. (The fact that the Disused Burial Grounds (Amendment) Act 1981 alone provides for objections to the development from relatives or the personal representative of the deceased in respect of recent burials only serves to reinforce my belief that burial legislation is in urgent need of review).

  In some cases, building or development work is required in relation to burial grounds to which none of the above legislation applies (for example, repair work to walls or buildings). In these cases, we will consider the issue of licences under the Burial Act 1857, but only where the normal procedures are followed to obtain the consent of the grave owner (if any) and the relatives of the deceased. Nevertheless, where the relatives or descendants cannot be traced, or where the remains are over 100 years old and objections are unlikely, it is our practice to issue a licence to enable the work to proceed. This is because the work will have received prior authorisation or because it may be needed in the interests of safety or conservation, and the balance lies with proceeding with the work. On the other hand, if valid objections are received, we would not normally issue licences.

  I should mention two other circumstances in which Home Office licences would be issued. The first is where buried remains are accidentally disturbed, perhaps in the course of digging into old burial grounds which were not known to exist.

  Provided we are satisfied that the finds do not need to be reported to the coroner, licences will be issued to legitimise the removal and disposal of the remains elsewhere.

  The second case is where ancient burial grounds are being excavated for archaeological purposes. In these cases, if we are satisfied that the remains are so old that objections cannot legitimately be registered, licences are issued to enable the remains to be removed, examined scientifically if required, and then disposed of. In both these circumstances, we have no reason to believe that our policy is regarded by the public as insensitive or inappropriate, and there is no question of the sites being used for new burials.

  I do not believe that our approach in any of these cases is inconsistent with our stance on the disturbance of remains for the purposes of maximising burial capacity. Provision (or the requirement) for the removal of remains for site development has been approved by Parliament. The number of cases where such removals take place is relatively small, and the sites are not re-used for burial purposes. By contrast, there is no Parliamentary sanction to authorise the disturbance of burials to allow them to be buried more deeply, such a provision would presumably apply to a very large number of cemeteries and churchyards (and thousands of individual graves each year), and there are no indications that there is any public demand to re-use burial grounds (the admittedly few letters and telephone calls we receive on the subject in fact suggest the reverse). It would therefore seem quite wrong to seek to exercise our existing licensing powers in order to maximise burial space in cemeteries without express statutory authority to do so. That is why I think a public consultation exercise is needed on this issue, and why we need to consider new legislation if we decide that disturbing old graves is the right way to tackle shortages of grave space.

February 2001