Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Burial and Cremation (Scotland) Act 2016

Type Act of the Scottish Parliament

Publication 2016-04-28

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

PART 1 — Burial

Burial grounds

Meaning of “burial ground”

1

In this Act, “burial ground”—

(a) means land—

(i) used, or intended to be used, primarily for the burial of human remains, and

(ii) in respect of which a charge for such burials is made, and

(b) includes land that was, but is no longer, used primarily for the burial of human remains and that—

(i) was provided for that purpose in pursuance of a function conferred by an enactment or an obligation imposed by rule of law, or

(ii) is specified in regulations made by the Scottish Ministers.

Meaning of “burial authority”

2

In this Act, “burial authority”, in relation to a burial ground, means the person having responsibility for the management of the burial ground.

Provision of burial ground: local authority

3

(1) Each local authority—

(a) must provide one burial ground within the area of the local authority, and

(b) may provide other burial grounds within that area.

(2) In subsection (1), “burial ground” has the meaning given in section 1 except that it does not include land mentioned in paragraph (b) of that section.

Provision of burial ground outwith local authority area

4

A local authority may provide a burial ground that is situated wholly or partly outwith the area of the authority.

Joint provision of burial ground

5

(1) Any two or more local authorities may make arrangements to provide jointly a burial ground within the area of one or more of the authorities.

(2) If a burial ground which is provided jointly by two or more local authorities under subsection (1) is wholly within the area of one of the authorities, that authority is deemed to have complied with section 3(1)(a).

(3) Subsection (4) applies where a burial ground is provided jointly under subsection (1) by two or more local authorities that are burial authorities.

(4) Any functions exercisable under, or by virtue of, this Act or any other enactment by a burial authority in relation to a burial ground are to be exercised—

(a) jointly by the local authorities in relation to the burial ground, and

(b) in accordance with such arrangements as may be made between the authorities in relation to the burial ground.

(5) In this section, “burial ground” has the meaning given by section 1 except that it does not include land mentioned in paragraph (b) of that section.

Management of burial ground

6

(1) The Scottish Ministers may by regulations make provision for or in connection with the management, regulation and control by a burial authority of burial grounds.

(2) Regulations under subsection (1) may in particular make provision for or in connection with—

(a) the maintenance of—

(i) burial grounds, and

(ii) buildings, walls, fences or other structures erected on burial grounds,

(b) enclosing, laying out and embellishing burial grounds,

(c) access to and within burial grounds, including the construction, repair, maintenance and improvement of roads and paths,

(d) the maintenance and repair of memorials, buildings and other structures on burial grounds (including for the purpose of making them safe),

(e) the charging of fees by burial authorities which are local authorities in respect of such matters as may be specified in the regulations,

(f) persons employed by burial authorities (including in relation to training, qualifications and membership of professional bodies),

(g) conditions relating to the erection of a memorial, building or other structure on burial grounds,

(h) the imposition by burial authorities of such restrictions and conditions as they think necessary or appropriate in relation to—

(i) the layout of burial grounds (including in relation to the size of, and distance between, lairs),

(ii) the right to erect a memorial, building or other structure on burial grounds (including in relation to materials, construction, size, maintenance and liability for costs in respect of work carried out by burial authorities),

(i) the depth at which human remains may be buried,

(j) the designation of part of a burial ground for use by particular faiths or religious bodies,

(k) the provision of buildings for the use of persons of particular faiths or belonging to particular religious bodies,

(l) creating criminal offences to be triable summarily and punishable by a fine not exceeding level 3 on the standard scale, or

(m) defences and evidential matters relating to such offences.

Right to erect building

7

(1) A burial authority may sell a right to erect a building or other structure on a burial ground for which it is the burial authority.

(2) Any such right is exercisable only by the person in whom the right is vested.

(3) A right sold by a burial authority under subsection (1) is to be exercised subject to such terms, and on such conditions, as the burial authority may determine.

(4) Such a right is subject to, and must be exercised in accordance with, any regulations under this Part.

Burial in burial ground

Application to carry out burial

8

(1) A person may not carry out a burial of human remains in a burial ground unless—

(a) the person has submitted to the burial authority for the burial ground an application to carry out the proposed burial, and

(b) the application has been granted.

(2) The Scottish Ministers may by regulations make provision for or in connection with applications mentioned in subsection (1).

(3) In making such an application, a person must comply with any requirements imposed by or under regulations under subsection (2).

(4) Regulations under subsection (2) may in particular—

(a) specify the form and content of applications,

(b) specify persons, or a description of persons, who may issue forms on which applications are to be made,

(d) specify persons, or a description of persons, who may submit applications,

(e) make provision about documents to be submitted with applications, or

(f) make provision for reviews of, or appeals against, decisions of a burial authority—

(i) to grant an application, or

(ii) to refuse to grant an application.

Unauthorised burial: offences

9

(1) A person commits an offence if the person contravenes section 8(1) by knowingly carrying out a burial in respect of which no application has been granted.

(2) A person commits an offence if the person—

(a) provides information in, or in connection with, an application mentioned in section 8(1) which the person knows to be false or misleading in a material way, or

(b) recklessly provides information in, or in connection with, such an application which is false or misleading in a material way.

(3) A person who commits an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding level 3 on the standard scale or to both.

(4) A person who commits an offence under subsection (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Burial register

10

(1) Each burial authority must prepare and maintain for each burial ground for which it is the burial authority a register containing prescribed information about burials that have taken place in the burial ground (a “burial register”).

(2) The Scottish Ministers may by regulations—

(a) require a burial register to be in a specified form and kept in a specified manner, or

(b) make such other provision relating to a burial register as they consider appropriate.

(3) A burial authority must make arrangements for each of its burial registers to be available for inspection by members of the public on payment of such reasonable charge (if any) as the authority may determine.

(4) A burial authority must make arrangements for copies of entries in its burial registers to be supplied, on request, to members of the public on payment of such reasonable charge (if any) as the authority may determine.

(5) A burial register must be kept indefinitely.

(6) An extract from a burial register kept by a burial authority, duly certified as a true copy by the burial authority, is sufficient evidence of the burial entered in it for the purposes of any court proceedings.

(7) In subsection (2), “specified” means specified in the regulations.

Burial register: offence

11

(1) A burial authority commits an offence if, without reasonable excuse, the authority contravenes section 10(1) by failing to prepare or maintain a burial register.

(2) A burial authority which commits an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Right of burial

12

(1) A burial authority may, on the application of any person, sell a right of burial in a lair in a burial ground for which it is the burial authority.

(2) In this Act, “right of burial”, in relation to a lair, means—

(a) a right to be buried in the lair,

(b) where human remains are to be buried on or above the ground—

(i) a right to place a tomb on the lair, and

(ii) a right to erect a structure associated with the tomb on the lair, and

(3) A right of burial is exercisable only by the person in whom the right is vested.

(4) A right of burial sold by a burial authority under subsection (1) is to be exercised subject to such terms, and on such conditions, as the burial authority may determine.

(5) A right of burial is subject to, and must be exercised in accordance with, any regulations under this Part.

(6) A burial authority may refuse an application mentioned in subsection (1) if, in the opinion of the authority, it is reasonable to do so (but this subsection is subject to section 13).

Duty to sell right of burial

13

(1) Where an application under section 12(1) satisfies the conditions in subsection (2) or (3), the burial authority to which the application is made must grant the application and sell a right of burial to the person making the application (the “applicant”).

(2) The conditions are that—

(a) the application is made to a burial authority that is a local authority,

(b) the application discloses that the applicant intends the lair to be used to bury the remains of a person who, at the time the application is made, has died, and

(c) immediately before the person's death, the person was ordinarily resident in the area of the local authority mentioned in paragraph (a).

(3) The conditions are that—

(a) the application is made to a burial authority that is a local authority,

(b) the application discloses that the applicant intends the lair to be used to bury the remains of—

(i) a still-born child, or

(ii) a fetus mentioned in subsection (4), and

(4) The fetus is one which—

(a) is parted from a woman before or on completion of the 24th week of the woman's pregnancy, and

(b) after being so parted, does not breathe or show any other signs of life.

(5) In subsection (3)(b)(i), “still-born child” has the meaning given by section 56(1) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965.

Duration and extension of right of burial

14

(1) This section applies in relation to any right of burial other than one that vests in the Commonwealth War Graves Commission.

(2) A right of burial is extinguished at the end of the period of 25 years beginning with the day on which the right was sold.

(3) The burial authority may, on the application of a person in whom the right of burial is vested, extend the period for which the right subsists.

(4) An extension under subsection (3) may be granted on more than one occasion.

(5) Where an extension is granted under subsection (3), the right is extinguished at the end of the period of 10 years beginning with the day on which the right would, but for the extension, otherwise be extinguished.

(6) A burial authority may refuse an application mentioned in subsection (3) if, in the opinion of the authority, it is reasonable to do so.

(7) Subsection (8) applies where—

(a) the person in whom a right of burial is vested dies before the right is extinguished, and

(b) the right does not transfer to and vest in another person by virtue of any testamentary provision, enactment or rule of law.

(8) The right vests in, and may be exercised by, the burial authority that sold the right.

(9) For the purposes of calculating any period of time mentioned in this section, the day on which a right of burial is sold is to be taken to be the day recorded, in respect of the right, in the appropriate register under section 17.

Commonwealth War Graves Commission: right of burial

15

(1) Subsection (2) applies where a burial authority sells a right of burial to the Commonwealth War Graves Commission.

(2) The right subsists in perpetuity.

Right of burial: notification of pending extinguishment

16

(1) Subsection (2) applies where—

(a) a right of burial falls to be extinguished by virtue of section 14(2) or (5), and

(b) the burial authority that sold the right—

(i) is aware of the name and address of the right-holder, or

(ii) can, after reasonable enquiry, ascertain them.

(2) At least 3 months before the day on which the right of burial falls to be extinguished, the burial authority must notify the right-holder—

(a) of the date on which the right falls to be extinguished,

(b) of the right-holder's right to apply for an extension of the right under section 14(3),

(d) that the right will be extinguished if such an application is refused under section 14(6).

(3) In this section, “right-holder”, in relation to a lair, means the person in whom the right of burial in the lair is vested.

Register of rights of burial

17

(1) This section applies where a burial authority sells a right of burial in a burial ground for which it is the burial authority.

(2) The burial authority must, in relation to each such burial ground, prepare and maintain a register containing—

(a) information about lairs in the burial ground in which rights of burial have been sold by the authority,

(b) the date on which the rights were sold by the authority,

(d) subject to subsection (3), the names and addresses of persons in whom the right of burial vests (where such persons do not fall within paragraph (c)).

(3) If the burial authority is unaware of, or is unable after reasonable enquiry to ascertain, the names and addresses of the persons mentioned in subsection (2)(d), the authority need not comply with the duty imposed by that subsection.

(4) The burial authority may take such steps as it considers necessary—

(a) to ascertain whether the information in the register is current and accurate, and

(b) to obtain information to enable the authority to adjust the information to ensure the register is current and accurate.

(5) The register must be kept indefinitely.

(6) An extract from a register maintained by a burial authority under this section, duly certified as a true copy by the burial authority, is in relation to matters contained in the extract sufficient evidence of those matters for the purposes of any court proceedings.

Registers under section 17: offence

18

(1) A burial authority commits an offence if, without reasonable excuse, the authority contravenes section 17(2) by failing to prepare or maintain a register as required under that section.

(2) A burial authority which commits an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Right to erect headstone

19

(1) The person in whom a right of burial in a lair in a burial ground is vested may apply to the burial authority for the burial ground for the right to erect a headstone or other memorial on the lair.

(2) A burial authority may refuse such an application if, in the opinion of the authority, it is reasonable to do so.

(3) A right conferred by the granting of such an application is subject to, and must be exercised in accordance with, any regulations under this Part.

(4) Subsection (5) applies where a right of burial in a lair is extinguished (including at the end of any period for which it is extended under section 14).

(5) A right to erect a headstone or other memorial on the lair conferred by virtue of subsection (1) on the person in whom a right of burial is vested is extinguished on the extinguishment of the right of burial.

(6) More than one application may be made under subsection (1) by the person in whom a right of burial is vested.

Fees for burials

20

(1) This section applies where a burial authority is a local authority.

(2) The burial authority may charge such fees as the authority thinks fit in respect of—

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.