Dead and…buried?

In his 2019 Reith Lectures, ‘Law and the Decline of Politics,’ former Supreme Court Justice Lord Sumption argued that modern society is too keen to find a legal solution for “every human problem and every moral dilemma”, with the law now penetrating “every corner of human life.”

Enter the Law Commission which, on 4 June 2025, published its consultation paper, ‘New Funerary Methods,’ in response to views that the law governing the disposal (though this term is explicitly avoided in the consultation for fear of causing offence or being seen as ‘problematic’) of bodies is out of date and unfit for purpose. 

The consultation is part of a wider, three-part project, which is also looking at burial and cremation, and rights and obligations relating to funerals, funerary methods and remains. The deadline to respond to this consultation is 4 September 2025.

The consultation

Despite its seemingly broad remit, the project is not looking at death registration, the regulation of funeral directors or planning and environmental law. Instead, its focus is on regulating alternative means of dealing with deceased bodies beyond the established methods of cremation, burial and, to a lesser extent, burial at sea.

Tellingly, a number of professional funeral providers, including Resomation Ltd and Co-op Funeralcare, have been working to develop and establish alkaline hydrolysis in the UK.

The ‘new funerary method’ envisaged by the consultation involves a process which breaks down a body with the purpose of disposing of it as distinct from preservation (such as cryogenic freezing) or research. Two specific examples cited are alkaline hydrolysis and human composting. Burial, cremation and burial at sea are explicitly excluded from the consultation paper’s definition of a new funerary method. The Law Commission proposes that the government should have power to regulate specific new methods and that non-regulated methods should be prohibited.

A large part of the consultation paper focuses on the semantics of cremation and burial and why, therefore, methods such as alkaline hydrolysis, which ‘uses water, alkaline chemicals, heat and pressure to break down the tissue of a deceased person into liquid leaving bone fragments and teeth,’ differ. Indeed, the paper goes to the trouble of consulting the Oxford English Dictionary definition of the verb ‘to burn.’

An equally large part of the paper describes the two main methods envisaged. Scientifically, these explanations are interesting and, to some extent, warranted given the purpose of the consultation. The paper does, though, also touch on other, less common, potential funerary methods, such as freezing (in its various forms) and exposure. It invites consultees to advise of any other potential methods, with the aim of ensuring any framework for regulation is future-proofed.

Ultimately, the crux of the purpose of the consultation appears to be that it is ‘arguable’ as to whether the use of new funerary methods is prohibited by current legislation and, in any event, seeking to apply existing legislation to new funerary methods is ‘complicated and potentially confusing.’ However, the paper also comments that ‘due to the sensitivities around death, certainty is valued by those involved in the death care sector.’

The purpose

Is the real reason behind the consultation, therefore, to appease stakeholder sensitivities in a culture where an ill-chosen word can inadvertently or otherwise offend? Is it to address the wants of those lobbying for new funerary methods for commercial purposes? Or is it to provide the clarity and certainty that it purports to set out to achieve? 

The paper acknowledges that in Ireland and South Africa, for instance, there is no legislation specifically addressing alkaline hydrolysis, yet it is available in both jurisdictions. It further acknowledges that there is ‘no explicit prohibition on the use of new funerary methods in burial and cremation law or any other legislation.’ This begs the question as to why we need to legislate for this.

Academic advisor to the project, Professor Heather Conway of Queen’s University, states that “respect for the dead” is a “universal standard that permeates the law” and it is apparent that the Law Commission is very much leaning towards legislating this area and providing a framework for regulation.

One notable problem, however, is that while the paper discusses the arguable need for regulation and legislation, it does not drill down into the pros and cons of either such regulation or the known new funerary methods, beyond mentioning that burial space in England and Wales is likely to run out in the coming decades. Nor does it present a rigorous cost-benefit analysis. Of course, both may well follow in the impact assessment or, as is more likely, as part of the government’s considerations should a regulatory framework be invoked.

With all that being said, it is hard to ignore that the existing law is an uneasy mix of Victorian burial statutes and early 20th century cremation rules that leaves 21st century techniques in legal limbo. As such, this consultation can rightly be said to be achieving the Law Commission’s stated aim of keeping the Law of England and Wales under review and making recommendations where needed.