16th June 2007, 01:48 PM
The revised position of the Ministry of Justice concerning archaeological disinterments (of skeletal or cremated human remains) poses severe problems for the archaeological profession. It is not at all clear as to why the MoJ should have qualms over the points raised in their recent reply letter to applications for licenses.
Section 25 of the Burial Act 1857 is the principal statute upon which archaeologists have relied to guide their actions in the past. We must come to an understanding of this section since to transgress its provisions is an offence of strict personal liability - we cannot safely continue as before pending what may be a lengthy debate, nor can we desist from disinterments without very quickly bringing otherwise lawful developments (both private and public) all over the country to a grinding halt.
The key point in Section 25 is the phrase "interred in any place of burial". The MoJ interprets this to mean only interment (presumably deliberate) in a formal burial ground still recognisable as such at the modern surface. If they are correct, the Burial Act does not apply to the majority of archaeological cases (i.e. burials encountered during redevelopment of land other than recognisable burial grounds). However, in the first place, I would suggest that neither of the words "interred" or "burial" is semantically restricted to cases of deliberate acts; archaeologists (and all other earth scientists), as well as 'lay' people, commonly use these terms simply to refer to the state of an object as being under the land surface. Thus, in the past, any 'buried' human remains, even when demonstrably naturally or accidentally disturbed (i.e. not, or no longer, in a formal grave), have been taken to require a licence for removal (a point supported by well known publications by specialist cultural heritage solicitors, such as Dr. Neil Cookson). Second, even if one restricts the concept to deliberate human burials, "any place of burial" cannot reasonably be read to imply only formal burial grounds; individual burials, at a whole range of location types (in the foundations of a house, in a barrow, adjacent to a boundary ditch, in a rubbish pit, etc.), are common from all archaeological periods. Third, there is no wording in Section 25 which would require that the "place of burial" be visible or otherwise recognisable (i.e. through the intermediary of a written record) at the modern surface. Whilst, for the present, one must accept the MoJ's stated legal position, it would be reasonable to understand that "interred in any place of burial" would necessarily apply to most archaeological occurrences and that (absent the express exceptions given in Section 25) an archaeologist who 'removes' human remains would indeed be guilty of a summary offence. It also follows that, if this reading should be correct, the Secretary of State would indeed be empowered to 'save' the archaeologist through the issue, after appropriate application, of a burial licence. Ms. Harman (Minister of State, Department for Constitutional Affairs): âExhumation applications are processed each year by approximately three quarters of one full time equivalent official. [...]â(Hansard, 18 Oct 2006 : Column 1216W). Surely the real issue here is not just a cost-saving exercise ...?
The second point raised by the MoJ refers to the scope of conditions which may be attached to a burial licence issued under Section 25. They suggest that the Section applies only to cases of (or with the intent of) disinterment followed more or less immediately by reinterment or cremation. There is no wording in Section 25 which would support that suggestion (the exception concerning transfers between "consecrated places" being inessential to the main thrust of the Section). The MoJ add that the Secretary of State has no powers to allow, or condition, retention of the human remains for scientific study (whether non-intrusive or partially destructive). This issue revolves around the interpretation of the phrase "with such precautions as [...the] Secretary of State may prescribe". It is reasonable to argue that it is in the public interest (which clearly evolves through time, the modern interest being quite different from, say, the 19th. century interest) to allow a very wide reading of this phrase. One may ask: '"precautions" against what?' In the 19th. century, the tenets of public and religious decency would no doubt have been the primary (possibly the only) concern. Today, these tenets are still valid (and all respect should be shown and dignity allowed to the remains, both during disinterment and after) but we also recognise, as a matter of UK and European law, the concept of 'public cultural heritage'. Every step a professional archaeologist takes nowadays has the objective of retrieving information in order to connect people in the present with those in the past (there is substantial recent guidance from DCMS and English Heritage on this point). We may have lost the name of an ancient person, and many of the details of his/her life story, but, through careful scientific examination, we can often say much about the individual (e.g. geographical origin, record of disease and injury, nutritional status, age at death, cause of death, etc.) and about the group to which he/she belonged. Archaeological study shows respect for ancient human remains by the very act of adding to public knowledge of the cultural heritage. The wording of Section 25 is wide enough to allow the Secretary of State the discretionary power of granting a licence with conditions concerning retention of human remains for appropriate archaeological study. Professional archaeologists should petition the Secretary of State to exercise that power in the clear public interest.
Other topics covered by the MoJ in their letter would seem to be completely beside the point. The common law issues have always existed and are completely unaffected by the current attitude of the MoJ; these issues are therefore a âred herringâ in the present debate over whether or not licensing is required. Note, in passing, that, granted that there is reason to suppose that the remains are more than a hundred years old, there appears to be no obligation under the common law principle to inform anyone (EHO, police or coroner) that an exhumation is to take place, merely that it should be carried out in full compliance with the appropriate âdignity & decencyâ considerations. Similarly, the matter of reburial (absent a conditional licence) is irrelevant, since the 1857 Act deals with removal of remains, not with what happens to them thereafter; professionals with a valid reason to wish to retain human remains for study, sampling and/or display may presumably still rely upon the âwork & skillâ exception (in Doodeward v Spence (190:face-thinks: 6 CLR 406) to the lack of property in human remains.
Sebastian Payne (Chief Scientist, EH) has recently stated on Britarch: âIf human remains are encountered unexpectedly, it is unlikely that either Act applies; if in doubt, again MoJ are willing to adviseâ. This statement would appear to be irresponsible in the face of the law as it stands, pending authoritative legal comment or ruling. Ms. Harman (Minister of State, Department for Constitutional Affairs): âIt is an offence without authority to disturb buried human remains [...]â (Hansard 18 Oct 2006 : Column 1213W). Certainly, the MoJ did not give me any useful advice whatsoever, either written or verbal, when I consulted them over a real case, beyond âit may be ... on the other hand it may not be ...â equivocation.
The MoJâs attitude is all the more confusing given the very recent document: Burial Law and Policy in the 21st. Century: The Way Forward Government Response to the Consultation carried out by the Home Office/DCA (MoJ, June 2007). Under the rubric âExhumation or disturbance after burialâ, this document notes â15. The Government believes that it is right to continue to protect buried human remains from unauthorised disturbance. [...] [Summary of respondentsâ responses] The existing approach to the authorisation of single exhumations was generally supported, with most in favour of central licensing arrangements. [Government response] In the light of responses received, there would seem to be general agreement that the current grounds for disturbing buried remains are widely accepted and that there is no strong argument to make major changes.â But, in item 18, they write: âSeparate arrangements are proposed for the regulation of the excavation of human remains for archaeological purposes.â And at item 19, they write: âOther than in the case of remains of archaeological interest, the Government does not propose to relax the way in which the exhumation of human remains is regulated.â
Since the MoJ do not appear to have consulted widely with the archaeological profession to set alternative provisions in place before curtailing a licensing practice which has held good for decades, they leave us no option at present but to proceed without a license, especially since many Planning Permissions will involve requirements (via conditions and/or legal obligations) to retrieve human remains according to appropriate professional standards. I must say that I resent having had to put myself at personal risk of censure over this matter.
Section 25 of the Burial Act 1857 is the principal statute upon which archaeologists have relied to guide their actions in the past. We must come to an understanding of this section since to transgress its provisions is an offence of strict personal liability - we cannot safely continue as before pending what may be a lengthy debate, nor can we desist from disinterments without very quickly bringing otherwise lawful developments (both private and public) all over the country to a grinding halt.
The key point in Section 25 is the phrase "interred in any place of burial". The MoJ interprets this to mean only interment (presumably deliberate) in a formal burial ground still recognisable as such at the modern surface. If they are correct, the Burial Act does not apply to the majority of archaeological cases (i.e. burials encountered during redevelopment of land other than recognisable burial grounds). However, in the first place, I would suggest that neither of the words "interred" or "burial" is semantically restricted to cases of deliberate acts; archaeologists (and all other earth scientists), as well as 'lay' people, commonly use these terms simply to refer to the state of an object as being under the land surface. Thus, in the past, any 'buried' human remains, even when demonstrably naturally or accidentally disturbed (i.e. not, or no longer, in a formal grave), have been taken to require a licence for removal (a point supported by well known publications by specialist cultural heritage solicitors, such as Dr. Neil Cookson). Second, even if one restricts the concept to deliberate human burials, "any place of burial" cannot reasonably be read to imply only formal burial grounds; individual burials, at a whole range of location types (in the foundations of a house, in a barrow, adjacent to a boundary ditch, in a rubbish pit, etc.), are common from all archaeological periods. Third, there is no wording in Section 25 which would require that the "place of burial" be visible or otherwise recognisable (i.e. through the intermediary of a written record) at the modern surface. Whilst, for the present, one must accept the MoJ's stated legal position, it would be reasonable to understand that "interred in any place of burial" would necessarily apply to most archaeological occurrences and that (absent the express exceptions given in Section 25) an archaeologist who 'removes' human remains would indeed be guilty of a summary offence. It also follows that, if this reading should be correct, the Secretary of State would indeed be empowered to 'save' the archaeologist through the issue, after appropriate application, of a burial licence. Ms. Harman (Minister of State, Department for Constitutional Affairs): âExhumation applications are processed each year by approximately three quarters of one full time equivalent official. [...]â(Hansard, 18 Oct 2006 : Column 1216W). Surely the real issue here is not just a cost-saving exercise ...?
The second point raised by the MoJ refers to the scope of conditions which may be attached to a burial licence issued under Section 25. They suggest that the Section applies only to cases of (or with the intent of) disinterment followed more or less immediately by reinterment or cremation. There is no wording in Section 25 which would support that suggestion (the exception concerning transfers between "consecrated places" being inessential to the main thrust of the Section). The MoJ add that the Secretary of State has no powers to allow, or condition, retention of the human remains for scientific study (whether non-intrusive or partially destructive). This issue revolves around the interpretation of the phrase "with such precautions as [...the] Secretary of State may prescribe". It is reasonable to argue that it is in the public interest (which clearly evolves through time, the modern interest being quite different from, say, the 19th. century interest) to allow a very wide reading of this phrase. One may ask: '"precautions" against what?' In the 19th. century, the tenets of public and religious decency would no doubt have been the primary (possibly the only) concern. Today, these tenets are still valid (and all respect should be shown and dignity allowed to the remains, both during disinterment and after) but we also recognise, as a matter of UK and European law, the concept of 'public cultural heritage'. Every step a professional archaeologist takes nowadays has the objective of retrieving information in order to connect people in the present with those in the past (there is substantial recent guidance from DCMS and English Heritage on this point). We may have lost the name of an ancient person, and many of the details of his/her life story, but, through careful scientific examination, we can often say much about the individual (e.g. geographical origin, record of disease and injury, nutritional status, age at death, cause of death, etc.) and about the group to which he/she belonged. Archaeological study shows respect for ancient human remains by the very act of adding to public knowledge of the cultural heritage. The wording of Section 25 is wide enough to allow the Secretary of State the discretionary power of granting a licence with conditions concerning retention of human remains for appropriate archaeological study. Professional archaeologists should petition the Secretary of State to exercise that power in the clear public interest.
Other topics covered by the MoJ in their letter would seem to be completely beside the point. The common law issues have always existed and are completely unaffected by the current attitude of the MoJ; these issues are therefore a âred herringâ in the present debate over whether or not licensing is required. Note, in passing, that, granted that there is reason to suppose that the remains are more than a hundred years old, there appears to be no obligation under the common law principle to inform anyone (EHO, police or coroner) that an exhumation is to take place, merely that it should be carried out in full compliance with the appropriate âdignity & decencyâ considerations. Similarly, the matter of reburial (absent a conditional licence) is irrelevant, since the 1857 Act deals with removal of remains, not with what happens to them thereafter; professionals with a valid reason to wish to retain human remains for study, sampling and/or display may presumably still rely upon the âwork & skillâ exception (in Doodeward v Spence (190:face-thinks: 6 CLR 406) to the lack of property in human remains.
Sebastian Payne (Chief Scientist, EH) has recently stated on Britarch: âIf human remains are encountered unexpectedly, it is unlikely that either Act applies; if in doubt, again MoJ are willing to adviseâ. This statement would appear to be irresponsible in the face of the law as it stands, pending authoritative legal comment or ruling. Ms. Harman (Minister of State, Department for Constitutional Affairs): âIt is an offence without authority to disturb buried human remains [...]â (Hansard 18 Oct 2006 : Column 1213W). Certainly, the MoJ did not give me any useful advice whatsoever, either written or verbal, when I consulted them over a real case, beyond âit may be ... on the other hand it may not be ...â equivocation.
The MoJâs attitude is all the more confusing given the very recent document: Burial Law and Policy in the 21st. Century: The Way Forward Government Response to the Consultation carried out by the Home Office/DCA (MoJ, June 2007). Under the rubric âExhumation or disturbance after burialâ, this document notes â15. The Government believes that it is right to continue to protect buried human remains from unauthorised disturbance. [...] [Summary of respondentsâ responses] The existing approach to the authorisation of single exhumations was generally supported, with most in favour of central licensing arrangements. [Government response] In the light of responses received, there would seem to be general agreement that the current grounds for disturbing buried remains are widely accepted and that there is no strong argument to make major changes.â But, in item 18, they write: âSeparate arrangements are proposed for the regulation of the excavation of human remains for archaeological purposes.â And at item 19, they write: âOther than in the case of remains of archaeological interest, the Government does not propose to relax the way in which the exhumation of human remains is regulated.â
Since the MoJ do not appear to have consulted widely with the archaeological profession to set alternative provisions in place before curtailing a licensing practice which has held good for decades, they leave us no option at present but to proceed without a license, especially since many Planning Permissions will involve requirements (via conditions and/or legal obligations) to retrieve human remains according to appropriate professional standards. I must say that I resent having had to put myself at personal risk of censure over this matter.