26th June 2007, 06:14 PM
The Ministry of Justice has today issued me the following advice, after a new application to remove human remains from their place of burial:
Dear Dr. Collcutt
My lawyer has just completed his consideration of your application in respect of the [human burials of late prehistoric date coming to light after soil stripping at a mineral extraction site].
According to our current understanding of the law and in the light of the information provided about the nature of the site at [...], we consider that section 25 of the Burial Act 1857 does not apply. For that reason, we are unable to issue a licence under the 1857 Act in relation to human remains buried there. So far as the burial legislation is concerned, therefore, we are unaware of any legal impediment to you proceeding to remove the remains, although you should be aware that there is a common law principle requiring human remains to be treated with proper respect.
In cases such as these we are now considering whether it might be helpful to advise what conditions would have been attached to a licence in this instance if we considered that section 25 of the Burial Act still applied. We will write separately on this point shortly.
As regards your intention to examine the remains and retain them for future study, we now take the view that the Secretary of State has no power to authorise or prevent you doing so. This is not to suggest that such examination or retention would necessarily be unlawful: the department takes an entirely neutral position on this question. There may, however, be other legal requirements (e.g. in relation to public health law) which place obligations on persons engaged in this type of activity, and you may wish to seek advice on such matters. As soon as we can provide any further information on these aspects, we will do so.
[...]
Kind regards
Brian Webb
Coroners Unit
Ministry of Justice
Just for the sake of completeness, the conditions usually applied in the past have been as follows:
(a) The removal shall be effected with due care and attention to decency;
(b) The ground in which the remains are interred shall be screened from the public gaze while the work of removal is in progress;
© The removal shall be to the satisfaction of the environmental health officer for the district in which the remains are at present interred and in accordance with any additional conditions they may impose;
(d) The remains shall, if of sufficient interest, be examined by [... the named osteologist];
(e) The remains shall be retained by [... the named museum] or reinterred in a burial ground in which interments may legally take place, and in any intervening period they shall be kept safely, privately and decently.
This advice is slightly less tentative than the previous version, although it is clear that we are still a long way from legal certainty. Both the MoJ and independent legal advisors with whom I have spoken recommend that Section 25 Applications should still be submitted for all burials (as before), so that the MoJ can be kept properly informed and can issue modified advice and/or instructions as the circumstances might require.
Dear Dr. Collcutt
My lawyer has just completed his consideration of your application in respect of the [human burials of late prehistoric date coming to light after soil stripping at a mineral extraction site].
According to our current understanding of the law and in the light of the information provided about the nature of the site at [...], we consider that section 25 of the Burial Act 1857 does not apply. For that reason, we are unable to issue a licence under the 1857 Act in relation to human remains buried there. So far as the burial legislation is concerned, therefore, we are unaware of any legal impediment to you proceeding to remove the remains, although you should be aware that there is a common law principle requiring human remains to be treated with proper respect.
In cases such as these we are now considering whether it might be helpful to advise what conditions would have been attached to a licence in this instance if we considered that section 25 of the Burial Act still applied. We will write separately on this point shortly.
As regards your intention to examine the remains and retain them for future study, we now take the view that the Secretary of State has no power to authorise or prevent you doing so. This is not to suggest that such examination or retention would necessarily be unlawful: the department takes an entirely neutral position on this question. There may, however, be other legal requirements (e.g. in relation to public health law) which place obligations on persons engaged in this type of activity, and you may wish to seek advice on such matters. As soon as we can provide any further information on these aspects, we will do so.
[...]
Kind regards
Brian Webb
Coroners Unit
Ministry of Justice
Just for the sake of completeness, the conditions usually applied in the past have been as follows:
(a) The removal shall be effected with due care and attention to decency;
(b) The ground in which the remains are interred shall be screened from the public gaze while the work of removal is in progress;
© The removal shall be to the satisfaction of the environmental health officer for the district in which the remains are at present interred and in accordance with any additional conditions they may impose;
(d) The remains shall, if of sufficient interest, be examined by [... the named osteologist];
(e) The remains shall be retained by [... the named museum] or reinterred in a burial ground in which interments may legally take place, and in any intervening period they shall be kept safely, privately and decently.
This advice is slightly less tentative than the previous version, although it is clear that we are still a long way from legal certainty. Both the MoJ and independent legal advisors with whom I have spoken recommend that Section 25 Applications should still be submitted for all burials (as before), so that the MoJ can be kept properly informed and can issue modified advice and/or instructions as the circumstances might require.