A new consultation by the Law Commission is to review new funerary methods as part of its wider work on Burial, Cremation and New Funerary Methods in its 13th programme of law reform.
The consultation, which closes on 4th September, is asking for views on new funerary methods, acknowledging the only existing methods are burial, cremation and burial at sea. The commission says the development of new methods, which are being used in other jurisdictions, while not explicitly prohibited by law, may be not be lawful because of legislation around death registration.
The Law Commission are clear the consultation will not make any recommendations on what type of new funerary method might be appropriate, if any; rather it will make recommendations around what regulatory framework would enable the introduction of new funerary methods. In it’s consultation document the Law Commission say
“Stakeholders have told us that they want a system of regulation so that they can operate securely and conscientiously, unlock investment, and offer a greater choice of funerary methods to members of the public.”
Two such methods referred to in the consultation are
- alkaline hydrolysis, which uses water and alkaline chemicals, and heat, to break down a body into a liquid and bone fragments
- human composting, which involves keeping a body in a controlled environment so that remains are broken down into soil much more quickly than in a burial.
Funerary methods break down the body of a deceased person, so processes which preserve the body, such as cryogenics or embalming would not be considered under this definition.
Outlining the current position, the Law Commission point to the Births and Deaths Registration Act 1926 which states the body of a person may not be “disposed of” unless a certificate or order has been given to “the person effecting the disposal” – breach of this section of the act is a criminal offence. This provision does not apply to cremation, although the Cremation (England and Wales) Regulations 2008 contain a similar requirement for cremation.
The Commission go on to say
“The “person effecting the disposal”, other than in a narrow set of burials, is “the person by whom or whose officer the register of burials in which the disposal is to be registered is kept”. As there is no requirement for a “register of burials” to be kept for a new funerary method, it is likely that if a new funerary method was to be used there would be no person effecting the disposal, as defined in the 1926 Act. If so, it would be impossible for the certificate or order to be delivered as required and using a new funerary method for the body of a deceased person would therefore be a criminal offence.”
The legislation leaves the introduction of potential new funerary methods ‘unclear’ they add. The consultation paper refers to the development of regulatory frameworks in other parts of the English-speaking world including Australia, Canada and the US and Ireland. Closer to home in Scotland there has been a power in primary legislation for regulations to be made about new funerary methods since 2016; and a consultation on regulating alkaline hydrolysis has been carried out but to date no regulations have been made.
As it stands, according to the Cremation Society, around 83% of bodies in England and Wales are cremated.
The consultation is available to review on the Law Commission’s website.
