LOCAL AUTHORITIES' CEMETERIES ORDER 1974

HL Deb 28 March 1974 vol 350 cc766-74

5.8 p.m.

LORD GARNSWORTHY rose to move, That the Local Authorities' Cemeteries Order 1974, be approved. The noble Lord said: My Lords, I do not know whether it is appropriate that we should be taking an Order dealing with cemeteries immediately after the one we have just had before us, and I am not sure whether we shall have as many experts on this subject as we did on the last one. But this Order, while unsensational in its content, and undertaken in the context of local government reorganisation, constitutes something of a landmark in the history of burial law.

The law of burial has developed rather messily as a result of a long series of Acts of Parliament from the middle of the 19th century onwards. It has for many years been recognised as one of the most out-of-date and chaotic branches of the law. The most obscure and complicated aspects of it were those relating to the provision and management of burial grounds and cemeteries by local authorities, many of whom (but not all) could work either under the Burial Acts 1852 to 1906 or under the even older, but at least more concise, Cemeteries Clauses Act 1847, which was applied by the Public Health (Interments) Act 1879. The London Government Act 1963 undertook some rationalisation of the law as it related to London, but the opportunity for a more thorough overhaul of the position nationally was taken in the Bill which became the Local Government Act 1972.

The Act repeals, as from April 1, 1974, the Public Health (Interments) Act 1879 and the provisions in the Burial Acts 1852 to 1906 conferring powers to provide burial grounds. Instead, the 1972 Act starts afresh by conferring the power to provide cemeteries on burial authorities—defined so as to include all local authorities, other than county councils, down to parish and community councils and indeed the parish meetings of parishes having no parish council. And the Act (in Section 214(3)) empowers the Secretary of State to make provision, by Order subject to Affirmative Resolution of both Houses, with respect to the management, regulation and control of the cemeteries of local authorities. The first such Order is the one now before the House.

As a precautionary measure the Act applies the code of operation contained in the Cemeteries Clauses Act 1847 (except for specified sections which are not relevant to local authorities) to all burial authorities until such time as the first Order made by the Secretary of State under Section 214(3) takes effect. The object was solely to ensure that if for any reason it proved impossible to bring an Order into force by April 1, 1974, burial authorities would still have a set of detailed powers for the operation of their cemeteries in spite of the repeals in the 1972 Act. But no one could really want to complicate the administration of the new burial authorities, or of the many parish burial authorities who continue in existence, by requiring them to operate temporarily under an Act of 1847 which most of them have never seen and which it would not be easy to lay hands on—hence the importance of seeing to it that the present Order takes effect on April 1.

The Order includes such material on the management of cemeteries as it seemed necessary to preserve from the mass of 19th century legislation which is being repealed, but a number of additions and improvements have been made in consultation with the interested organisations. It is intended to deal with special subjects, like the registration of burials and the conversion of cemeteries to lawn cemeteries, in further Orders, and to consolidate them with this one so that from now on burial authorities will have a concise and up-to-date code for the operation of their cemeteries.

What cannot be done in these Orders is to deal with matters other than the management, regulation and control of local authority cemeteries, or to deal at all with matters relating to cemeteries provided otherwise than by local authorities. This leaves a number of aspects of the law of burial which could only be dealt with by Bill, for which, regrettably, previous Governments (both Conservative and Labour) have been unable to find Parliamentary time. These aspects of the law are being considered separately by the Department of the Environment. Meanwhile, my Lords, the Act of 1972 and this Order will have remedied the worst defects of the existing law of burial. I beg to move.

Moved, That the Local Authorities' Cemeteries Order 1974 be approved.—(Lord Garnsworthy.)

5.15 p.m.

VISCOUNT COLVILLE OF CULROSS

My Lords, I suppose it was rather more than ten years ago that I first drew the attention of this House to the state of the burial Jaw, and I have had the warmest support from the noble and learned Lord, Lord Gardiner, ever since in my efforts to get something done about it. I emphasise and underline every word of opprobrium that has been poured upon the previous state of the law by the noble Lord, Lord Garnsworthy. I think it concerned chapels. This Order is indeed a landmark, or, if I may change the metaphor a little, a gift horse, and I do not want to look it too closely in the mouth.

There are just one or two question I should like to ask while the noble Lord, Lord Brockway, sits patiently waiting to put his Unstarred Question. I appreciate this Order has had to be produced in a hurry, but we have here a system which, though it has great advantages, also has some minor disadvantages which I shall deal with in a moment. We had Section 214 and Schedule 26 in the Local Government Act, and already quite a number of paragraphs in Schedule 26 have been repealed and replaced in the Order. First of all, what for instance is the material difference, if any, between the paragraphs 21 and 22 in the Schedule and their reincarnation as Articles 11 and 5, sub-paragraphs 1–3 in the Order? Is there any difference at all, or is this just tidying up?

Secondly, are we in due course to have a complete re-statement of the parts of the Schedule which deal with the provision and management of cemeteries all in the same place? For instance, shall we have paragraph 11 of Schedule 26 reproduced in one of these Orders or in a consolidation Order? I ask that for this reason: much of the actual day-to-day work is going to be done by very small local authorities (previously parish councils and now local councils), and it is of the greatest importance that the clerk or other person in charge should be able to find the law in one place. The whole object of this exercise has been to get rid of the mountainous mass of prehistoric legislation which has literally hung like a tombstone round the neck of anybody trying to administer the burial law, and to give him a single, simple code to work on. The noble Lord, Lord Garnsworthy, promises this because he says there are two further Orders and then a consolidation. Will he please also consider getting rid of Schedue 26 altogether—apparently there are powers available to do this—or at any rate to get rid of as much of it as possible, so that we may have everything in one place? Then there will be just one Order, and that is all that has to be looked up by those who are running this sort of service in the local authorities.

The disadvantage of doing this by Order is rather a matter concerning those who produce textbooks or other guidance for the practitioner or the person operating a burial ground or cemetery, in that, so far as I know, one does not get any publisher to produce an annotated copy of a Statutory Instrument. It is most unusual to find the complete code of powers and provisions covering a subject like this in a Statutory Instrument. In Halsbury there is a whole section on burial and cremation. This will disappear completely, because all the Acts will be repealed and the only thing to be put in their place is a Statutory Instrument. Therefore there will be no annotated version. I hope that those who prepare the books for guidance will take account of that fact—I notice that the noble and learned Lord, Lord Gardiner, is nodding; I think he takes my point. We shall need to have some notes and cross-references, which are so helpful to us all. To my knowledge, that is the only disadvantage in doing this by way of Statutory Instrument. The advantage, of course, is flexibility and the ability to repeal, amend and consolidate without the necessity of putting a Bill before Parliament.

There is one point on consultation. As I have said, I can understand the hurry. But I am sure the noble Lord, Lord Garnsworthy, will bear in mind—and I see from the Department of the Environment some familiar faces advising him whom I remember well dealing with this subject ten years ago—that printing and posting is no longer what it was. The Government are required to consult local authorities and local authority associations on these matters; but the printing situation at the moment is so extraordinary and so slow, as is the post, that in practice what happened in this case with the local government association (the National Association of Local Councils) was that the consultative draft arrived in their office on the same day as this Order was laid before Parliament. Fortunately it did not matter, because they had already been in continuous discussion with the Department on this. The Government must realise that consultation has to make allowances for these slownesses, which I do not suppose the 4½p post is going to improve any more than the 3½p one did.

Would the noble Lord look at one detailed point? Under Article 6(1)(b) of the Order a burial authority will be able, if it chooses to be so silly, to provide, for instance, a Roman Catholic chapel on part of a cemetery which has been set apart under Article 5(1), say, for the Methodists. I do not suppose many people would do something as foolish as that, but if you have the wording as loose as it is in the Order, it is technically possible to do so. I think it needs tightening up so that you can put beyond question what the powers are once you have a particular denomination involved on a particular piece of land.

May I draw the noble Lord's attention to Article 18 of the Order. It says: Nothing in this Order shall be construed as authorising the disturbance of man remains. What about women? Might it not be better to amend the Order, if we can do so, and put in two letters, "h" and "u" making the word "human"?

5.21 p.m.

LORD GARNSWORTHY

My Lords, I am grateful to the noble Viscount, Lord Colville of Culross, for the expertise which he has brought to his consideration of this Order. It is well known, of course, that he has had a considerable interest in this matter, as he has said, spreading over a period of some ten years. I am grateful for the fact that I have been given some advice by those whom, he has recognised, because I think they have had a very good understanding of his profound knowledge, as well as of his interest, in the subject. Regarding the point which the noble Lord raised regarding Article 18, I do not think it is possible to amend an Order: I think it either ought to go through as it is, or we should have a new Order.

VISCOUNT COLVILLE OF CULROSS

My Lords, may I interrupt? That was intended to be a little light joke; but I promise the noble Lord that it can be dealt with under the printing provisions.

LORD GARNSWORTHY

My Lords, note will be taken of what the noble Viscount had to say, and if it can be done that seems to me sensible. I think I understand the points he has raised, and I am grateful to him for giving me some indication of the line he would be taking. If I may reply to the points as he raised them this afternoon, he asked what differences are there between, say, paragraphs 21 and 22 of the 26th Schedule and Articles 11 and 5(1) to sub-paragraph 3 of the Order. As regards paragraph 21 of the 26th Schedule, which relates broadly to burials taking place with or without a Church of England service, part of this paragraph is indeed reproduced in Article 11 of the Order. But paragraph 21(2) of the Schedule is dropped because it relates to words in the Burial Laws Amendment Act 1880, which are being repealed by the Order and replaced by Article 5(5).

The noble Viscount will find paragraph 21(3) of the Schedule on the registration of burials reproduced as Article 5(7) of the Order. Paragraph 22 of the Schedule relates to the setting apart of unconsecrated land in a cemetery for a particular denomination. This is integrated into Article 5 of the Order, which deals both with consecration and setting apart.

The noble Viscount inquired as to whether it was highly inconvenient to have part of the powers in the 26th Schedule and part in the Order: why not, for instance, put paragraph 11 of the Schedule into the Order? The Government accept the noble Viscount's proposition in principle, but the example he has given is one where it was consciously decided not to transfer the paragraph to the Order. Paragraph 11 of Schedule 26 confers on burial authorities the power to make or adopt by-laws. The Department of the Environment's model cemetery by-laws, with minor additions, have been included in the Order as Schedule 2, Part I; and provisions relating to proper behaviour in local authorities' cemeteries have been included in the Order as Article 14. It is hoped that these provisions will be enough to make it unnecessary for most, if not all, burial authorities to have by-laws. If experience confirms that the by-law making power is no longer needed, the Secretary of State has it in mind to use, in due course, the powers of repeal which he is given in Section 214(3) of the 1972 Act to repeal the paragraph relating to by-laws in Schedule 26.

On the subject of consultation, as the noble Viscount acknowledges, there has been and is considerable hurry to get certain Orders, including this one, brought into force by April 1. But the consultation required on the present Order took place last autumn, as the noble Viscount indicated, and the comments made by the various organisations consulted, including the National Association of Local Councils, were taken into consideration. However, the Order was not made until the present Government took office. At that stage no question arose of further consultations—that is as I understand the position—but at the same time as the Order was laid copies were sent for information to the organisations which had been consulted. Where we have inevitably had to cut the time short is in the interval between the laying of the Order and debate in both Houses. The Government would certainly have preferred to leave a longer interval but were constrained by the approach of April 1, the significance of which in relation to this Order I have endeavoured to explain.

On the question about what is to stop a burial authority, under Article 6(1)(b) of the Order, from providing a chapel for one religious denomination on a part of the cemetery which has been consecrated or set apart under Article 5(1) for a different denomination, it is suggested that the wording of Article 6(1)(b) needs tightening up. There is little risk, I am advised, of this happening. It presupposes that a religious denomination who put up the money for the construction of a chapel for their own needs would be content to have it built on land set apart for another denomination, and that the burial authority who had gone to the trouble of setting the land apart for one denomination would then ignore the setting apart. If, however, any authority took such action it seems probable that the matter would be taken to the courts. The Government are advised by their lawyers, with unusual firmness, that the courts would link the provision of a chapel described in lines 2 to 4 of Article 6(1)(b) to the character of the particular part of the cemetery.

VISCOUNT COLVILLE OF CULROSS

My Lords, would the noble Lord forgive my interrupting? If there is one thing that I suggest we can do in drafting Orders under this particular provision, it is to make perfectly certain nobody ever has to go to the courts about vires. If this is the answer that has been given to the noble Lord, would he consider putting it perfectly plainly in the Bill so that nobody ever has to go anywhere near the courts in order to see what the powers are?

LORD GARNSWORTHY

My Lords, I am quite sure that what the noble Viscount has said will be taken note of and studied very carefully. I trust that I have answered the points that he raised; if I have overlooked any of them I will certainly write to him.

My Lords, I must confess that I have never in my life been attracted to the subject of cemeteries. I was once a member of a local authority, and any member who was late attending a committee meeting was automatically put on the Cemetery Committee. I managed to avoid being put on the Cemetery Committee. When I realised that I was having to take this Order, I thought it might have been a good thing had I had some earlier experience. When I knew that the noble Viscount was going to take the Order from the other side, I realised that I should be up against a talented and knowledgeable spokesman. I am grateful to him for the manner in which he has dealt with the Order. We have had a much lengthier, and a more probing, debate than was the case when the Order was before the other place. I hope that what has been said here not only will be of advantage to your Lordships but may perhaps be read also by Members of another place.

On Question, Motion agreed to.