 Archaeology News : Applications for licences under the Burial Acts |
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| Posted by ifa_alex on 20/6/2007 15:49:12 (2901 reads) | |||
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It has come to our attention that the practice of the Ministry of Justice in dealing with applications for licences under the Burial Act has changed. The statement received from the Ministry of Justice (or its predecessor department) in response to a number of applications is set out below. English Heritage in discussion with DCMS and MoJ has issued the following statement of the current position which has been posted on Britarch: http://www.jiscmail.ac.uk/cgi-bin/webadmin?A2=ind0706&L=britarch&D=1&T=0&O=D&F=P&P=8294. The IFA shares the enormous concern expressed by a large number of members and is working with a number of bodies, including English Heritage and the Church of England to resolve this issue. A letter has been sent to the Minister of State, the Rt Hon Harriet Harman QC MP expressing our concerns and requesting a speedy resolution to this matter. A copy of the letter can be downloaded below: Letter to the Minister of State Whilst the IFA has made representations on behalf of the profession, we strongly urge those who may be affected by changes in practice to write directly to the Ministry of Justice to express their concern, and detailing any specific issues as soon as they emerge. Please write to: Robert Clifford Ministry of Justice 5th Floor Steel House 11 Tothill Street London SW1H 9LH Statement received from Ministry of Justice Thank you for your application regarding the above site. This Department has been reviewing aspects of the burial legislation with our lawyers. That consideration is not yet completed, but two points in particular have arisen from the review to date. These are that disused burial grounds legislation applies to burial grounds of any age and that the Secretary of State's powers to impose licence conditions under section 25 of the Burial Act 1857 or to issue directions under the Schedule to the Disused Burial Grounds (Amendment) Act 1981 do not extend to permitting retention, testing, or examination of the remains - or indeed any intervening act which is not directly related to removal or the subsequent reinterment or cremation of the remains. There are two further points to make here. The first is that it may be that the disused burial ground legislation does not apply to burial grounds which are not on the surface of the land. If so, it may be that such grounds, and the human remains that they contain, are not subject to regulation beyond the common law offence of offering indignities to human remains (if it is the case that this common-law principle would be recognised today). The second point is that the fact that the Secretary of State cannot authorise scientific examination etc under the legislation should not be taken to imply that such examination etc would necessarily be unlawful. All these points remain under consideration, and we are considering whether to instruct Counsel to advise on this and other aspects of the burial legislation. I should stress, however, that this is all likely to take some time. You may therefore wish to take your own legal advice on these questions. In the meantime, we understand the need for your application to be dealt with expeditiously. You may wish to consider whether you can proceed on the basis that the only issue, so far as human remains are concerned, are whether the remains could be removed without committing the common law offence mentioned above. You may also wish to consider informing the Environmental Health Officer for the district of your intentions to see if they have any concerns. As for any retention, examination and testing of the remains, a possible option for the moment might be to rebury the remains in sealed containers capable of preserving them effectively for scientific examination at some later date, should that become a legal and practical possibility. We cannot guarantee, however, that such measures would necessarily amount to compliance with the law. I realise that what I have set out here marks a departure from our previous practice and introduces unwelcome uncertainty, concerns and potential for delay. Although our legal consideration of the issues is not finished, we are satisfied that we have gone into them far enough to be sure that we cannot continue with our old approach. |
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