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Burial and Cremation (Scotland) Act 2016

Lair: restoration to use

Section 32 – Restoration to use of lair: consultation

93.Sections 32 to 44 set out the process that must be followed by a burial authority to restore burial lairs to use in particular circumstances. Section 32 sets out the initial steps that must be taken by a burial authority in choosing to restore a lair to use. Subsection (1) establishes a range of criteria that must be met to enable a burial authority to begin the restoration process. These are that it appears to the burial authority that the lair is in a poor state of maintenance and repair or that there is no indication that anyone is taking an interest in the lair; that there has not been a burial in the lair during the relevant period (i.e. 100 years where the lair contains human remains or 50 years where the lair does not contain human remains); and that it might be practicable for the burial authority to restore the lair to use. All three criteria must be met.

94.Subsection (2) allows the burial authority to carry out excavations in a lair, and to open or move any tomb or other structure in which human remains are placed above ground, to establish the feasibility of restoring the lair to use, but, by virtue of subsection (3), it may not exhume any remains buried in the lair at this point. Exhumation may take place only where the entire restoration to use process has been followed and the burial authority has decided to restore the lair to use. Exhumations for this purpose are carried out by virtue of section 37(3)(c) or section 38(3)(c).

95.Subsection (4) establishes that the burial authority must consult a range of people about the proposed restoration of the lair. The people who must be consulted at this stage are listed in subsection (5) and include archaeologists, the Commonwealth War Graves Commission and any other person the burial authority considers appropriate. Subsection (6) provides that if there is any objection from any of these persons at this stage, the lair cannot be restored to use and must not be considered again for reuse for 10 years.

Section 33 – Notification: right-holder

96.This section applies where no objection has been made to the lair being restored to use under section 32(3). Subsection (2) requires the burial authority to give notice to the person who holds the right of burial in relation to the lair of its intention to restore the lair to use (referred to for this purpose as the “right-holder”). The burial authority must do this if it knows the name and address of the right-holder or is able, after reasonable enquiry, to ascertain that information.

97.Notice given under subsection (2) must contain particular information set out in subsection (3), including the burial authority’s proposal to restore the lair to use; the right-holder’s right to agree or object to the proposal in writing within the prescribed time limit; any documents the right-holder is required to give the burial authority when consenting or objecting to the proposal; an explanation of the consequences of consenting or objecting to the proposal; the right-holder’s responsibilities in relation to the maintenance of the lair; and any costs which the right-holder is liable for in respect of any maintenance of the lair.

98.Subsection (4) provides that this notice must be given in the prescribed form and manner.

99.Subsection (5) provides that if the right-holder responds to the notice to object to the lair being restored to use, the lair cannot be reused and cannot be considered for restoration to use for 10 years from the date on which the burial authority receives the objection.

Section 34 – Notification where right-holder cannot be found

100.Where a burial authority gives notice under section 33(2) but does not receive a response from the right-holder, or where the burial authority does not have the details for the right-holder, it must follow the procedure set out in section 34(2). This requires the burial authority to give notice in the form and manner as prescribed in regulations made by the Scottish Ministers of its proposal to restore the lair to use. By virtue of subsection (3), a notice under subsection (2) must contain information as prescribed in regulations made by the Scottish Ministers, comply with requirements as prescribed in any such regulations and specify a period (as prescribed in regulations) within which a person may object to the authority’s proposal to restore the lair to use. The effect of this is that the burial authority must undertake a public notification exercise about the intended restoration of the lair.

Section 35Section 34: effect of objection

101.This section applies where a burial authority is undertaking a public notification exercise by virtue of section 34. If an objection is received during the public notification period, the burial authority must respond in different ways, depending on who submits the objection.

102.Subsection (2) provides that if the objection is from the right-holder or a relative of a person whose remains are buried in the lair, the proposal to restore the lair to use cannot proceed and the lair cannot again be considered for restoration for 10 years.

103.Subsection (3) provides that if the person is not the right-holder or a relative, the burial authority must consider the validity of the objection. Subsection (4) provides that if the burial authority considers that the objection is valid, it must not proceed with the proposal to restore the lair to use, and the lair cannot be considered again for restoration for 10 years.

104.Subsection (5) defines “relative” for the purposes of this section. Any spouse or civil partner who is permanently separated from the deceased or has abandoned or been abandoned by the deceased is excluded from the list of relatives. An objection from a person other than the right-holder or “relative” of a person whose remains are buried in the lair will be treated by the burial authority as set out at subsection (3).

Section 36 – Extinguishment of right

105.This section requires a burial authority, where certain conditions are met, to extinguish a right-holder’s right of burial in a lair. This has effect where: the right-holder has consented to the lair being restored to use (subsection (2)); no valid objection is received during the public notification period under sections 34 or 35 (subsection (3)(a)); or where an objection has been received by a person other than the right-holder or a relative of a person whose remains are buried in the lair and the burial authority has determined that there is no merit in the objection (subsection (3)(b)). Under subsection (4), the burial authority must extinguish the right-holder’s right in the lair, and is required to give notice of the extinguishment of the right in such form and manner as may be prescribed in regulations made by the Scottish Ministers.

Section 37 – Restoration to use

106.This section applies where the right-holder’s right has been extinguished under section 36(4). Subsection (2) requires the burial authority to establish whether it would be practicable to restore that lair to use. Subsection (3) permits the burial authority to excavate the lair or open or move any tomb or structure that is in or on the lair, and exhume any remains for the purpose of subsection (2). Subsection (4) requires the burial authority to exhume any remains that may be buried in the lair before it offers the lair for sale. Subsection (5) places a duty on the burial authority to rebury any remains, which have been exhumed under subsections (3) or (4), as soon as practicable. The effect of this is that any remains that are removed from the lair to enable it to be restored to use will be reburied in the same lair.

Section 38 – Restoration to use without extinguishment of right

107.This section enables a right-holder to allow a burial authority to restore a lair to use but retain the right of burial in that lair. This will allow a full lair which would otherwise be unsuitable for further burials to have the lair restored to use. This will allow the right-holder to bring the lair back into use while maintain his or her right in respect of the lair.

108.Subsection (2) provides that the burial authority must establish whether it would be practicable to restore that lair to use. Subsection (3) allows the burial authority to carry out excavations and exhume any remains that are in the lair if it is necessary to do so under subsection (2) to confirm if it is possible to restore the lair to use. Subsection (4) requires the burial authority to rebury any remains that have been exhumed under subsection (3) as soon possible after they have been exhumed. This process is the same as that set out as section 37.

109.Subsection (5) makes clear that any costs that the burial authority incurs in carrying out its functions under subsections (2) to (4) of this section are to be met by the right-holder. In addition, subsection (5)(b) requires the right-holder to pay any costs incurred by the burial authority in making the lair available for reuse under this section by the right-holder.

Section 39 – Right-holder’s right to object

110.This section allows a person who holds a right of burial in respect of a lair to object to its restoration at any point before the burial authority sells a new right in the lair or otherwise confers the right on another person. This right of objection can be exercised after the public notification period has ended, although not if the right of burial in the lair has subsequently been sold or conferred. If the right-holder objects after the burial authority has extinguished his or her right in line with section 36(4), subsection (3) of this section requires a new right to be conferred on that person in respect of the lair.

Section 40 – Restoration to use on request of right-holder

111.This section allows a person who owns a right of burial in a lair to request that a burial authority restores the lair to use even if the authority was not otherwise planning to restore the lair. The effect of this is to allow a right-holder to request restoration of use of a lair that would otherwise be unable to be used because there is no space for further interments. The burial authority must follow the same processes that are set out in section 32(2) to (5), including giving particular people the right to object to the reuse, even though the potential restoration to use is at the request of the owner. This is to ensure that heritage and archaeological issues are considered.

112.If no objections are made, the lair can be restored to reuse in line with the process set out in section 38(3) to (5). The right-holder is responsible for any costs incurred.

Section 41 – Headstones

113.This section applies in cases where a burial authority has exhumed remains under section 37, 38 or 40 and there is a headstone or other memorial in place on the lair.

114.Subsection (2) requires the burial authority to take all reasonable steps to ensure that the headstone can be retained in place, unless it is not practical to do so.

Section 42 – Register of restored lairs

115.This section requires burial authorities to keep records of all activities carried out in pursuance of the functions conferred on them by sections 32 to 41. Such records must be kept in a register in the prescribed form and manner. The register is to be kept indefinitely.

116.Subsection (2) enables the Scottish Ministers to make regulations about the form and manner in which such registers are to be maintained and about any other provisions which are considered appropriate.

117.The register is to be a public document. Subsection (3) sets out that the burial authority must provide access to the register at reasonable times and may make a reasonable charge for doing so. If a burial authority decides to charge, it must determine what the charge should be. A burial authority must provide extracts of the register, for which it may levy a reasonable charge.

118.Subsection (6) establishes that any extract from the register certified as a true copy by the burial authority is sufficient evidence of restoration to use for the purpose of any court proceedings.

119.Subsection (7) provides that the form and manner in which the register is to be prepared and maintained is that which is set out in any regulations made by the Scottish Ministers under subsection (2).

Section 43 – Register of restored lairs: offence

120.A burial authority commits an offence if, without reasonable excuse, it fails to prepare and maintain a register as required by section 42. A burial authority that commits such an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Section 44 – Guidance

121.This section requires burial authorities to have regard to any guidance issued by the Scottish Ministers about the carrying out of functions conferred on them by or under sections 32 to 42 and the restoration to use of burial lairs.

122.Subsection (2) states that before issuing any guidance the Scottish Ministers must consult with burial authorities and any other persons they deem appropriate.

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