Burial reform set to breathe new life into funerary legislation

The end of 2023 saw the Law Commission unveil the terms of reference for a new long-term project: the oft-considered, but rarely resolved, question of what changes need to be made to the law governing what happens to our bodies after we die.

Its review into burial, cremation and ‘new funerary methods’ – which is scheduled to last until 2027 – has the potential to be a major step forward in bringing what is currently a patchwork of aged legislation up to date to reflect contemporary British society and the reality of rapidly diminishing burial ground capacity.

What will it cover, and how could it deliver?

In with the new

The Law Commission itself recognises that the current legal landscape is piecemeal and complicated, often with different rules and responsibilities for different burial authorities. It is grounded in statutes that don’t always reflect the views and preferences of a modern, more diverse and increasingly secularised Britain.

The current review is not the first time that these issues have been recognised in the UK. Some cremation reform was passed in 2017, and while the Scottish Parliament overhauled its funeral legislation in 2016, many of the above challenges remain outstanding in England and Wales.

This new Law Commission review will be split into three ‘strands’, each overlapping in order to accelerate the process and the outcomes. The first – already underway and planned to run until the end of 2025 – will look at the laws surrounding burial and cremation. This will include issues such as the opening and closing of burial grounds; the extent to which burial law applies to interred ashes; the rights of family and friends of the deceased to object to a cremation; and the reuse of graves.

Generally, the law doesn’t allow remains to be disturbed without specific permission. However, under Section 25 of the Burial Act 1857 – amended by the Church of England (Miscellaneous Provisions) Measure 2014 – church authorities can responsibly re-use graves within consecrated burial grounds without requiring the permission of the Ministry of Justice. And under the London Local Authorities Act 2007, councils in London can deepen plots to allow additional burials without license – although, currently, this isn’t an option for local authorities outside the capital.

The second strand of work – which will begin this year and run until spring 2026 – will explore the regulatory framework for so-called ‘new funerary methods’. This will ultimately aim at delivering a forward-looking regulatory framework for alternative ways of disposing of bodies, such as human composting and alkaline hydrolysis, otherwise known as ‘water cremation’.

The third and final stream – due to start at the end of 2025 and to conclude in 2027 – will look at the rights and obligations relating to funerary methods, funerals and remains. This will cover issues such as whether a person’s wishes about what happens to their body after death should be legally binding; who has the right to make decisions about bodies; and how any disputes among surviving family members should be resolved.

Progress at pace

It remains to be seen what the recommendations will be, and how many – if any – make it into law, but this review is very welcome. It has real potential to safeguard the dignity of the dead, minimise emotionally painful family disputes over funeral arrangements, and deliver a more adaptable and sustainable funerary regime through a legal framework that is fairer and more sensitive to differing views, beliefs and circumstances.

Importantly, it is commendable that the Law Commission has decided to overlap the timing of each stream – accelerating the project’s completion.

Good, thorough work takes time, but all delay to reform must be avoided. With issues like burial ground capacity growing more pressing by the day and families experiencing distress and conflict as they try to establish and execute their and their loved ones’ wishes in the face of all-too-often inflexible and complex rules, effective, long-term solutions in law are needed as soon as possible.

Matthew Morton is a partner and head of the disputed wills, trusts and estates team at Weightmans
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