HL Deb 05 February 1963 vol 246 cc494-509

2.55 p.m.

Order of the Day for the Second Reading read.


My Lords, in moving this Bill I should like to tell your Lordships at the very beginning that I am not, at the end of my remarks this afternoon and after all the other noble Lords have had their say, if they so wish, going to ask that this Bill should in fact be read a second time. I will explain to your Lordships why this is so. Nevertheless, since so many noble Lords have evinced an interest in it by putting their names down to speak, I think I ought to say a very brief word upon it.

I realise that it was perhaps a bold undertaking for me to attempt to consolidate a large body of law on so important a subject as this. But I did so, and the Bill was drafted almost entirely by the National Association of Parish Councils because they, in particular, have for a long time been finding that the law on this subject has become so complicated and antique that it is almost impossible to administer at all. Since the Bill was introduced into your Lordships' House I have had letters from 21 individual parish councils, four urban district councils, 12 county associations of parish councils, and I have been in touch with all the local authority organisations and many religious organisations, as well as those which deal with burial and cremation, and I think I would not be unfairly stating the case to say that, broadly, they all support some reform of the law.

However, I started by easy stages and, if your Lordships look at the consolidated body of law on this subject in Halsbury, you will find that there is an immense block of what has been described as "verbose muddle and antique legislation", and I did not attempt to deal with all of it because there are two codes and I have tried to consolidate only one of them. Your Lordships may think that I should have done more, but it would have been an extremely difficult thing to do in a Private Member's Bill, and I stuck to the older adoptive code under the Burial Acts, leaving out what is known as the Public Health and Interments Code, starting with the Act of 1879. However, as I understand it, in the Greater London Bill which is now before another place there has been an attempt to bring the two together in order to make one single code. And this I am sure is the right approach to the matter since, after all, in most cases the law of burial is administered by some of the humbler people of this country, although they do it very well. The people I mean are the countrymen in the parishes, the sextons and vergers, and people like that who cannot be expected to plough through over 100 years of legislation upon legislation and the regulations that go with it.

My Lords, it is a very important subject, but of course it does not deal with burial itself and cremation, important as they may be. It is also a vital feature in the public health legislation of this country, and it has a considerable effect upon amenity and open spaces. Your Lordships will think of the wonderful churchyards, and so on, around this country. I am therefore sure that a further attempt at clarification and unification of the law ought to be proceeded with. Your Lordships may, of course, have come across the difficulties which occur in this field. I do not know how many of your Lordships have travelled by train to Oxford and have stopped, as so often is the case, just outside the railway station, opposite what was for a long time an extremely untidy cemetery. If one might be permitted a parody to a very famous poem, somebody upon doing just that wrote in his diary: Stinking gasworks burning bright Beside the sidings half the night; What immortal hand or eye Made this awful cemetery? Your Lordships will be relieved to know this has now been cleared up, but its state, for so many years a disgrace, was entirely due to the impossibility of finding a way through the legislation as it stood.

My noble friend Lord Hastings has told me where my Bill falls short and he has most generously offered his assistance and the assistance of his Department in producing a bigger and better Bill and one which will bring in, among other things, the code I have attempted to deal with and the Public Health and Interments Code as well, so that one single clear code may apply to the whole of England and Wales. And I am sure your Lordships will welcome that.

I might just mention one thing. I have dealt with one code, and the other is to come in. As I understand it, it is the other code that is to be the basis of the new law. But that other code will have to be augmented to deal with such important matters, which do not at present appear in it, as the method of dealing with the closed and disused churchyards and the rights of bishops, incumbents, clergy, sextons and clerks in the running and administration of churchyards and that sort of thing. When my noble friend comes to reply it would be very good of him if he would give some indication that he is also thinking upon the same lines in that field and that he and his Department will be able to assist me in getting a fully comprehensive Bill on to the Order Paper within, I hope, not too great a time in the future. Therefore, I do not think I will waste your Lordships' time by going through the individual details of this Bill. I shall, of course, be delighted to hear anything the other speakers say, because I am sure their remarks will be constructive, and I am sure my noble friend will feel the same about it. But on the understanding that I am going to withdraw this Bill, I beg to move.

Moved, That the Bill be now read 2a.—(Viscount Colville of Culross.)


My Lords, I was very sorry indeed to hear that the noble Viscount is going to withdraw his Bill. I think he has done a very good job in this, and I think his little National Association of Parish Councils have done a first-class job of private enterprise in a field which is normally reserved for Government activities. I am very sorry to hear that the Government are preferring public enterprise to private enterprise on this particular occasion. Moreover, I have considerable doubts about the Government's intentions here. Good intentions in this sphere are not enough. if I may quote from the Local Government Chronicle, of December 15: At intervals someone has asked the Government to introduce a consolidation Bill"— that is, in this particular sphere— but although sympathetic"— and I have no doubt we shall have lots of sympathy from the noble Lord, Lord Hastings— …the necessary time or manpower has not apparently been available". Well, have we any guarantee that the necessary time or manpower is going to be available now? I would wager that the noble Lord, Lord Hastings, will not give us a date for the introduction for this much-needed consolidation measure which the noble Viscount has very manfully tackled himself. I would have said this is a case (to parody the Lord Chancellor) where half a loaf is better than no bread, and I would very much rather have the noble Viscount's half loaf than the Government's promise of bread at some time, where graveyards are concerned. The noble Viscount is absolutely correct when he says the law in this connection is chaotic, absolutely staggeringly chaotic. If I may quote from Dr. Davies's standard work on the subject: This particular branch of the Laws of England is indeed unrivalled in its complexity of authorities, areas, enactments, procedures and personnel. For instance, more authorities are directly or indirectly concerned with burial and cremation than any other modern public service; the relevant burial legislation is mainly to be found in nineteenth century statutes which have long been in dire need of simplification, amendment and consolidation". The noble Viscount has produced a Bill which is perfectly understandable to the average parish councillor, and I think that he and the National Association of Parish Councils have done very well indeed. It does not go as far as I am sure the Association of Municipal Corporations and the Urban District Councils would wish it to go in some respects, but I cannot for the life of me see why that should not be dealt with in Committee. I think, on balance, the noble Viscount was probably right to leave out the Public Health Act, because that introduces a number of other complexities. I think he was right; and I think the Government are wrong in suggesting that the thing be postponed until some vast, comprehensive—comprehensive and possibly incomprehensible—measure is in due course produced. It is quite extraordinary! When is a cemetery not a cemetery or when is a graveyard not a graveyard?—and the answer is, When it is a burial ground. A burial ground is not a cemetery and a cemetery is not a burial ground, although they are exactly the same. It depends on which Act of Parliament they stem from.


It is not a churchyard, either.


The noble Viscount is quite correct. In this Bill he is dealing only with burial grounds, and not with cemeteries. I think he is probably right to deal only with burial grounds, but he has in some respects assimilated burial grounds so that in fact they are brought much more in line with cemeteries. For example, in respect of whether a cemetery or burial ground can be within one hundred yards of a dwelling-place, there was a subtle difference between the two under the old Acts, and he has brought them into line: and they can now both he within one hundred yards of a dwelling-place, provided, in the case of a cemetery, that nobody is buried in the hundred yards area without the written consent of the owner of the habitation. He has also consolidated the powers of compulsory purchase so that they are both the same. He has taken out another anomaly, the anomaly which says that once a local authority has bought a burial ground the rateable value of that burial ground shall remain the same in perpetuity, though that is not the case with a cemetery. I think—in fact I am fairly sure—that he has made them the same in this respect.

There is one matter on which he has not touched, and that is in respect of bylaws. A local authority can make bylaws for a cemetery but not for a burial ground, and I think he did omit that. Had he let his Bill rip, I think that is a small point that we might have put right. I still think it is a very great shame that he is not going to let his Bill rip, and I would strongly recommend, subject to what my noble friends who are better in touch with local authority associations have to say, that we should give the Bill a Second Reading, unless the noble Lord, Lord Hastings can give us a very firm date within the lifetime of this Government—quite a short period. I think there is a great deal to be said for giving this Bill a Second Reading and getting burial grounds out of the way. I hope your Lordships will not necessarily heed the noble Viscount's misguided advice, pressed upon him by his Front Bench colleague—the noble Viscount indicates dissent; it is purely a voluntary act on his part. I think he is mistaken. I think he was right in the first place when he drafted this admirable little Bill, and I hope that it will reach the Statute Book in spite of his desire to drop it by the wayside.

3.8 p.m.


My Lords, I am sure nobody can discount the great courage and determination shown by the noble Viscount in tackling this extraordinary complex tangle of the Burial Acts. They are one of the pieces of legislation which I myself have come across on various occasions during part of my life, but I never could pretend to know what they were about. Therefore when I saw that the noble Viscount had presented this Bill I was delighted to find there was a prospect that the tangle might be cleared up. I am rather sad that the Bill is not to have a Second Reading, and I join with the noble Lord, Lord Taylor, in pressing on the Government that they will do something about this matter quickly. This Bill would have done a great deal to make life easier for many people involved in the Burial Acts, and although it is not a complete Bill I think it would be very sad if it dropped by me wayside because the Government, through no fault of their own, could not find time to implement their desire to bring in a more comprehensive measure.

There is one point about public health which has been mentioned by the noble Viscount and by the noble Lord, Lord Taylor. There has been a great deal of muddled thinking about that, and I hope that we may be able to have it cleared up when the new Bill comes along. Because, although it is obviously unattractive, obviously unpleasant, and obviously generally undesirable, that burial grounds should be placed close to a source of water used for drinking purposes—it is not pleasant to think that one may be drinking of the remains of relatives, friends or neighbours—one has to be careful before saying that this is wrong from the public health point of view. So far as I am aware, there has never been a single recorded case of disease coming from a water supply which was placed in fairly close proximity to a burial ground. That it is an extremely unattractive thing to do I agree, but I should not like it to go forth from this House that it involves any particular public health danger. It was a matter which arose from time to time when people wished, for some reason best known to themselves, to be buried not in some burial ground or cemetery but in some part of their private property or land. It is a point of view taken by some, though not many, people. There were various objections to this course, but one of the strongest was always that it might be a danger to public health: that to be buried in their garden might involve danger to the public water supply. If this new Bill does come along, I should like to feel that there will be something done to change that particular point of view, to make it into an amenity or an aesthetic point of view, but not a public health point of view.

In view of what the noble Viscount has said, I do not want to take up any more of your Lordships' time, except to say how glad I am that the noble Viscount has introduced his Bill, how sorry I am that it is not to be given a Second Reading to-day, and how much I share the view of the noble Lord, Lord Taylor, that the Government should do something quickly to bring in a Bill to take its place.

3.12 p.m.


My Lords, I should like to add my personal tribute to the heroism and initiative of the noble Viscount in introducing this Bill. My purpose in rising is to say that the Churches, as a whole, welcome any considered attempt to consolidate and bring order into the existing legislation about burials and cremations. The present state of the Burial Acts and other Statutes affecting the question is almost chaotic, and if anything could be done to put the whole legislation on a regular basis it would be a great benefit to the Churches.

Whether the present Bill is suitably framed is, of course, a question. At first sight it would appear that it would require considerable amendment, and perhaps enlargement, if it is to meet the difficulties of existing legislation to the satisfaction of the various bodies concerned. That, however, is a major point which the promoters of the Bill and Her Majesty's Government will no doubt consider. Whatever happens about proceeding with the Bill, I think there are certain points which will have to be taken into account. This is a Second Reading debate, and it is obviously not the occasion for a detailed examination of all the individual points of difficulty. There are, however, three general points which I should like to make in my capacity as Chairman of the Churches Main Committee—a body which, as your Lordships know, represents all the main Churches and other religious bodies of the United Kingdom.

First, the definition of "burial grounds" in the Bill is not wholly clear. If, for example, it covers churchyards, there is a possibility that the whole procedure for settling fees under the Ecclesiastical Fees Measure, 1962, would be jeopardised. That Measure empowers the Church Commissioners to draw up a table of fees for Church of England churchyards and, subject to the approval of Parliament, these fees have statutory effect. It would create a difficult situation if there were duplicate powers vested in a Government Department to approve fees for Church of England churchyards. Another difficulty about this lack of definition is that the Free Churches are left in doubt whether small pieces of ground adjoining chapels, mainly in country districts, but some in urban areas, are to be regarded as burial grounds and subject to the restrictions contained in the Bill.

A second point that I would mention is that in 1953 the National Assembly of the Church of England set up a Commission to consider the whole question of disused churchyards. The terms of reference for this Commission were To consider, in consultation with other appropriate authorities, what changes in the present law and practice relating to disused churchyards are desirable, and the manner in which they can best be achieved. This Commission held two conferences with representatives of the Association of Municipal Corporations, the Urban District Councils Association, the Rural District Councils Association, and the National Association of Parish Councils. As a result of these conferences, a memorandum was prepared containing draft clauses setting out its proposals, which were submitted in 1957 to the Ministry of Housing and Local Government. The Churches Main Committee were kept in touch with the work of the Commission and, in general, found themselves in agreement with the Commission's recommendations. It was realised, however, that the Commission were concerned only with the Church of England and left untouched the difficulties of the Free Churches. Obviously, in any new legislation, the recommendations of this Commission and the views of the Free Churches and others ought to be taken into account.

Lastly, there is a peculiar position, I understand, in Wales. Clause 15 of the present Bill, I am given to understand, does not apply to Wales, and apparently there would be no liability on a local authority to maintain closed churchyards for which they have already made themselves responsible. The whole position of churchyards transferred to the representative body under the Welsh Church Act, 1914, is most difficult and needs both careful study and consultation with the authorities of that body.

Your Lordships will understand that these are only a few examples of the points which arise in general consideration of the draft Bill. There are other points which will need to be considered. One cannot help feeling that it may be difficult to adopt the present draft and make it satisfactory in all respects. If it were possible I should rejoice, for the sake of the noble Viscount who has taken such infinite trouble in its drafting. But I think we have to face the possibility that the best course might perhaps be to start afresh.

3.17 p.m.


My Lords, I should like, if I may, to join in the general chorus of appreciation to the noble Viscount, not only for presenting the Bill but also for the excellent speech he made on its introduction. Unlike my noble friend Lord Taylor, I am also grateful to him for having agreed not to press the Bill, following the reply from his own Front Bench; because, while it is quite true, as the noble Viscount said, that everyone will agree that some reform is needed, some would go further and say that modernisation in the legislation, as well as consultation, is required. There is considerable room for discussion, as I am certain the noble Viscount will agree. In fact, the Urban District Councils Association and the Association of Municipal Corporations approached the Association of Parish Councils, or their representatives, with a view to delaying this Second Reading in order that there could be greater consultation on the measure. Between the local government associations and the representatives of the Church Assembly there have been discussions, as the right reverend Prelate indicated, and there is a whole field in which there ought to be discussions and agreement with the Government before they bring in their consolidating Bill. I join with my noble friend Lord Taylor in saying that this ought not to be delayed. The Government ought not to take refuge in saying that they will do something if in fact the delay is going to be considerable.

The right reverend Prelate referred to the question of church fees, but at the present time the Ministry of Housing and Local Government still have to approve a local authority table of fees. There may have been some reason for it at the time it was instituted, but there is no reason for it to-day, particularly when labour charges of grave-diggers and the rest vary considerably from time to time because of the cost of living, and so on. Equally, and more important, there is the question of the considerable sterilisation of ground—ground which ought to be brought into active use, particularly for housing—because of old regulations in regard to burial grounds.

Therefore, while congratulating the noble Viscount, I am delighted that he has agreed not to press the Bill. I think it is the wisest view to take, and I am certain that all the local government organisations will co-operate most heartily with him and with the Ministry in order that the consolidation Bill can be quickly brought forward and effective.

3.23 p.m.


My Lords, I should like to add my congratulations to the noble Viscount who moved the Second Reading of this Bill upon his decision to withdraw it. The Bill has as its object to consolidate, simplify and improve the law relating to the provision and maintenance of facilities for and places of burial and cremation by public authorities". One naturally welcomes any legislation intended to simplify and improve this part of the law, which is generally agreed to be much in need of improvement. But, while one supports the intention of the Bill, one cannot but have some reservations about some of its contents. In 1957 a committee, consisting of representatives of the Church Assembly and the local authority associations, considered a number of points upon which amendment of the law relating to burials was considered desirable. Subsequently the Disused Churchyards Commission of the Church Assembly produced a report and an accompanying memorandum making certain recommendations. It has not been possible in the time available to ascertain whether this Bill follows exactly the provisions of those recommendations.

I am informed that the Association of Municipal Corporations has made representations on several occasions to the Ministry of Housing and Local Government for the introduction of amending legislation on the lines suggested in that memorandum. The reply has always been that simple consolidation is impossible and that the burial law will have to be clarified and amended at the same time. The Ministry has said that this is a most formidable task. One cannot help wondering, then, to what extent the task has been successfully achieved in the clauses of this Bill.

The Association of Municipal Corporations would like a good deal more time to be made available for discussions with the appropriate associations of local authorities, and others, before it can say which clauses of the Bill it supports and what amendment it feels need to suggest. As the noble Lord, Lord Lindgren, has said, since the Bill was introduced the Association has had the opportunity of one discussion with representatives of the National Association of Parish Councils, and feels very strongly that a good deal of further study is desirable so that the legislation to be passed on such a difficult and complicated matter may deal effectively with the whole of this problem. Therefore, my Lords, I welcome the decision of the noble Viscount to withdraw his Bill on Second Reading.

3.26 p.m.


My Lords, may I join with those of your Lordships who have congratulated the noble Viscount in putting forward this Bill, which I think is an important contribution towards the solution of this very difficult problem—a problem which ought to be tackled and dealt with at the earliest possible moment. I would beg of the noble Viscount not to be led astray by the enthusiasm of my noble friend Lord Taylor on this matter, because, as the noble Viscount will have gathered from what has been said by the right reverend Prelate in regard to the work of the Church Commission, and by the noble Lord, Lord Milverton, and my noble friend Lord Lindgren in regard to the work of the local government associations, there is already a mass of information as to reforms which are required and which ought to be embodied in any legislation which is going to put this matter on a firm basis for the future.

While, therefore, on the face of it we seem to be losing an opportunity in not pressing forward with the Second Reading of this Bill, I am convinced that, with discussions going ahead as quickly as possible, that will be the best way of getting reform on the Statute Book; and a hundred years afterwards the noble Viscount's name may be linked with the great work done by Sir Edwin Chadwick in regard to burial grounds in London and other places. We welcome the decision of the Association of Municipal Corporations.

3.29 p.m.


My Lords, my noble friend, Lord Colville of Culross has described very well the present state of the law on burial, and in the description of the confusion that exists he has been ably assisted by the noble Lord, Lord Taylor. There is no doubt that great sympathy must be felt for all who have to administer these laws and especially for the many parish councils who are obliged to find their way through this legal labyrinth without the guidance of professional officers. My noble friend Lord Colville of Culross praised them for the work they are doing, and I should like to add an expression of my appreciation of the way in which they grapple with this complicated task.

The noble Lord, Lord Taylor, mentioned a certain text-book, published in 1956, which described the burial law as "unrivalled in its complexity" and "in dire need of simplification, amendment and consolidation"; but it also added, prophetically, that in view of the complexities involved it may well be several years before a satisfactory Bill finally receives the Royal Assent.


Several years have already elapsed.


That is what I was pointing out I feel sure that there is now not much longer to wait. Nevertheless, for reasons which have been explained to the noble Viscount, and on which he has already touched, the Government think that the present Bill, despite its merits, does less than is needed, and would not form a suitable basis for the full consolidation of the law which in any case would have to come in due course. In drafting this Bill the noble Viscount and his colleagues in the National Association of Parish Councils have, as my noble friend has pointed out, worked within certain deliberately chosen limits. Within those limits they have tackled the job, if I may say so, with admirable common sense and vigour, as I think has been testified by everybody who has spoken this afternoon. We all join in congratulating the noble Viscount and his advisers on the job they have done.

It seems to me, my Lords, that they have been concerned in the first place —and quite understandably so—to express in modern terms the existing law under which parish councils provide all their burial grounds: the adoptive provisions of the Burial Acts, 1852 to 1906. But there is, as we have heard, another and simpler code—that of the Public Health (Interments) Act, 1879, which is not available to parish councils but enables borough, urban and rural district councils to provide cemeteries. Rural district councils can use only the 1879 cemetery code, whereas borough and urban district councils may provide burial grounds under the Burial Acts, or cemeteries under the 1879 Act, or both. This unnecessarily complicated situation is not materially altered by the Bill which has been presented this afternoon by the noble Viscount. Yet the sponsors have, not surprisingly, found it impossible to exclude some matters affecting both burial authorities and cemetery authorities, as well as cemetery and crematorium companies and the Church.

The conclusion to which this inevitably leads is that we ought not to stop short of a complete consolidation of the law, in the course of which the opportunity could be taken to end the unnecessary duplication of codes for local authorities. I think this proposition has met with general agreement this afternoon, with the notable exception of the noble Lord, Lord Taylor, and possibly a certain amount of nostalgia on the part of the noble Lord, Lord Amulree. The situation is not quite as the noble Lord, Lord Taylor, imagines, because in fact the Ministry of Housing and Local Government have done a good deal of preliminary work along these lines, along the principle that the adoptive provisions of the Burial Acts—the more complicated of the existing codes—should be repealed. Instead, a set of powers, based on the Public Health (Interments) Act, 1879, would be made available to all local authorities, including parish councils. Here I am glad to confirm to my noble friend behind me that it is the intention to include within a Bill the comprehensive legislation for which he has asked. In effect, this principle of using only the one code is to be applied to London boroughs, and finds a place in the London Government Bill.

I am grateful to the noble Viscount for the readiness with which, when these points were put to him, he consented to withdraw his Bill in order to leave the way clear for a more comprehensive Bill to be prepared for him on the lines I have described. I am sure that this was the right decision. I have, as he has said, undertaken, on behalf of my right honourable friend the Minister of Housing and Local Government, that instructions to the draftsman will be prepared as quickly as possible. By that I mean without delay, though I cannot yet say definitely, as the noble Lord, Lord Taylor, knows perfectly well, when the comprehensive Bill will be ready. Therefore I cannot give a definite date, any more than he would be able to do if he were in my position.

My noble friend Lord Colville of Culross and the other interested parties will be consulted regularly and from time to time as the work proceeds, and the House may rest assured that no one will be more pleased than my right honourable friend and I when this bewildering mass of nineteenth century legislation is brought up to date. We intend to proceed on those lines, as I have said, without unnecessary delay and as soon as possible. Once again I congratulate my noble friend on his Bill, and I express my appreciation for his willingness, without being pressed, but after discussion, voluntarily to withdraw it.


My Lords, could the noble Lord say whether there is any chance of our getting the consolidated Bill before we have the London Government Bill? It seems illogical to reform London's burial laws before we have decided what the national laws should be.


No, my Lords. I am afraid that is impossible, because the London Government Bill is already going through another place, and the draftsmen have yet to work on the new Bill to which I have referred, which, as we all know, involves very comprehensive and intricate work.


Could we not hold up the London Government Bill?


My Lords, before the noble Viscount, Lord Colville of Culross, speaks, may I compliment him upon the reception which the Government have given his Bill—a Bill which apparently is capable, in their view, of some extension and widening? I myself could only wish that the noble Lord, Lord Peddie, had received the same kind of reception and approach last Thursday.


My Lords, your Lordships have been very kind and, as I had anticipated, very constructive and helpful. The noble Lord, Lord Taylor, will have realised by this time that it is not because of any pressure from those in front of me that I am proposing to take the course which I have in mind, because I was already aware of the points which other noble Lords have made this afternoon, particularly on behalf of the Association of Municipal Corporations, and also on behalf of the Churches Main Committee. What encourages me more than anything else is the promise which the noble Lord, Lord Lindgren, gave, of co-operation from all local authority associations, and also the promise of help from the right reverend Prelate the Lord Bishop of Winchester. Both of those are to help this procedure along, and I have certainly no intention whatever of abandoning it. I have already done more work on the subject since my noble friend's views were brought to my notice, and I know that my noble friend, and his Department, will proceed as quickly as possible. Therefore, your Lordships may rest assured that this is by no means the last that you will hear of this matter, and I hope that the next will be in the very near future indeed. In the meantime, I beg leave to withdraw the Motion for the Second Reading of this Bill.

Motion, by leave, withdrawn.

Bill, by leave, withdrawn.