Disused Burial Grounds (Amendment) Bill [H.L.] (Hansard, 15 December 1980)

The Lord Bishop of London
My Lords, I beg to move that this Bill be now read a second time. In moving this Second Reading I think I can take your Lordships into a shorter and possibly less controversial debate. At any rate, I can claim so far as I personally am concerned that this Bill is a purely altruistic effort on my part, for its aim is solely to give to the Free Churches, the Roman Catholic Church, the Jewish Church, powers which already the Church of England possesses. I have the privilege of being the chairman of the Churches Main Committee, a body which represents all the religious communions of this country in their secular relationships with the state, and it is because I have realised the difficulties with which those other Churches are from time to time confronted that I find it a very great honour on their part to be able to present this Bill to your Lordships' House.
First I must go back a little in history. When land was first set aside for churchyards and burial grounds it was no doubt regarded as unthinkable that the graves should ever be disturbed and the ground ever used for other purposes. But by the middle of the 19th century the growth of population meant that some burial grounds were becoming full, and so the Burial Act 1852 set up machinery for those burial grounds in the metropolis to be closed by Order in Council. This power was extended to the provinces by the Burial Act 1853. Evidently there then began to be pressure for some, at least, to be used for other purposes. At the same time the open spaces movement was getting under way and there was a desire to 962 preserve as open spaces such land as was no longer required for burials. The result was the Disused Burial Grounds Act 1884.
This Act, after reciting that: Whereas … numerous Orders in Council have been made for the discontinuance of burials in certain grounds within the metropolis and elsewhere: And whereas it is expedient that no buildings should be erected on any burial ground affected by any such Orders in Council", went on to prohibit the erection of any buildings upon any disused burial ground, except for the purposes of enlarging a church, chapel, meeting house or other place of worship". The only exception was that nothing in the Act should apply to any burial ground which had been sold or disposed of under the authority of an Act of Parliament. More or less simultaneously a series of Open Spaces Acts, starting with one of 1887 and ending with the Open Spaces Act 1906, gave powers for owners to transfer disused burial grounds to local authorities, and for the latter to acquire them for valuable or nominal consideration to be preserved and maintained as open spaces accessible to the public. What is more, the definition of a "burial ground" was extended to include not only land no longer used for interments but any churchyard, cemetery, or other ground which had at any time been set apart for the purpose of interment. The result was to sterilise for other purposes not only land in which burials had actually taken place, but even land in which no one had ever been buried.
With the passage of time those restrictions have become less and less tolerable. With the growth and movement of population after two world wars they left derelict pieces of land in the middle of city centres; precluded redevelopments which would have been of great benefit to the community; made it difficult for the churches to use their disused burial grounds even for such socially beneficial projects as community centres, parish halls or sheltered housing; alternatively, by making the grounds unsaleable, they deprived the churches of assets which they needed in order to be able to follow the people into new housing areas and provide there new churches and community centres.
So, some of the earliest town and country planning legislation gave local authorities power to acquire disused burial grounds for use otherwise than for open spaces, for example, for redevelopment in accordance with a development plan. And regulations such as the Town and Country Planning (Churches, Places of Religious Worship and Burial Grounds) Regulations, 1950 laid down how these were to be treated and what was to be done with any human remains, tombstones and other memorials. Finally, in 1968, when the problem of redundant churches and churchyards had become still more pressing. Parliament by approving the Pastoral Measure gave to the Church of England extensive powers of dealing with, and disposing of, its disused burial grounds and other redundant properties.
So, we arrive at the situation which prevails today; namely, that disused burial grounds belonging to the Church of England can be dealt with in accordance with the Pastoral Measure, that those required as open spaces or for development in accordance with an approved development plan can be acquired by local authorities; but that for all others the restrictions on 963 building imposed by the 1884 Act remain in force, and can only be set aside by an Act of Parliament. This has, of course, led to a steady trickle of private Acts over the years which have occupied the time of your Lordships' House. There have been on the one hand private Acts dealing with particular burial grounds such as the Independent Chapel Mawdsley Street Bolton Act 1962, the Queens Road Brighton Burial Ground Act 1975, and, more recently, the Cane Hill Cemetery Act; and, on the other hand, Acts sponsored by local authorities, such as the Rochdale Corporation Act 1958, and the Manchester Corporation Act 1967, which gave themselves powers to deal with burial grounds which could not be dealt with in any other way.
But that situation is obviously unsatisfactory. It is unsatisfactory for churches other than the Church of England, because it means that unless they can come to an agreement with the local authority for a disused burial ground to be used as an open space or for development, they have no alternative but either to leave it as it is, or else to face the difficult and expensive procedure of a private Bill which might cost them up to £5,000. Church trustees often do not have the means to do this, or to maintain the burial ground if they do not.
Next, it is unsatisfactory for the public, who may be left with an eyesore in a prominent urban situation about which no one can do anything. Thirdly, it is unsatisfactory for Parliament, faced as it is with a steady trickle of Private Bills, all usually very much alike, intended to deal with particular burial grounds. Noble Lords have complained on more than one occasion of the waste of parliamentary time which results.
Thus, if I may quote from Hansard of 1st March 1962, at column 1055, the noble Lord, Lord Douglas of Barloch, in the debate on the Independent Chapel Mawdsley Street Bolton Bill, said: If Bills are going to come before this House, and perhaps before the other place—I do not know, but there may be some there, too—at the rate of three a year, which Bills are going to dispense with the general provisions of our law relating to the use of disused burial grounds, and if they are going to go through, the question arises whether the proper means of dealing with this is not by an amendment of the Statute relating to burial grounds, and not by piecemeal legislation of this kind at all". More recently, on 28th January, 1980, the noble Lord, Lord Avebury, spoke on the Cane Hill Cemetery Bill. At column 610 he reminded your Lordships that some 15 years earlier on the St. George's (Hanover Square) Burial Ground Bill, he had suggested that consideration should be given to a public general Act which laid down a procedure for relinquishing land in such circumstances. He went on to say: … one can think of a great variety of really important uses to which burial grounds may be put, particularly in a built-up area such as Cane Hill, which is on the outer edges of Greater London. There ought to be some more expeditious procedure than a private Bill such as the one now before your Lordships by which this change of use can be made". He went on to ask: … whether the Government might not consult with the Church authorities to see whether a public general Act could not be formulated which would be acceptable to all concerned and which would short-circuit this procedure". It is this that the Bill now before your Lordships is 964 designed to do, and I am encouraged to learn that it has the sympathy of the Government departments concerned which have, indeed, helped greatly with the drafting. As long ago as 1968 the Ministry of Housing and Local Government, as it then was, put forward proposals for a Burial Bill which would have included provision for the repeal of the Disused Burial Grounds Act, 1884, and those proposals were welcomed by the Churches' Main Committee and the large number of other interests concerned. For various reasons, however, that Bill could not proceed, and since then lack of parliamentary time has made it impossible for this matter to be dealt with.
I turn now briefly to the Bill itself, and would like to begin by assuring your Lordships that it contains little that does not already figure in similar public and private legislation on this topic. What it aims to do is to extend to other Churches and religious bodies in England and Wales—for example, the Free Churches, the Church in Wales, the Roman Catholic Church, the Society of Friends, the Unitarian Churches and the Jewish congregations—the facilities for overriding the Disused Burial Grounds Act 1884, which are the same powers as the Church of England obtained in the Pastoral Measure 1968. Your Lordships will note that it does not repeal the 1884 Act, for that would remove almost all control over what happens to disused burial grounds and their contents of human remains, tombstones and memorials.
What it does is to enable the 1884 Act to be set aside in strictly defined circumstances, and only under the full control of, first, the local planning authority, which must give planning permission in the ordinary way for the proposed development or change of use of the burial ground in question; and, secondly, the church or subsequent owner, who must arrange for the removal of any human remains and the disposal of any tombstones or memorials in accordance with the strict conditions laid down in the schedule. Only when these conditions have been fully satisfied may any buildings be erected on the land otherwise than in accordance with the 1884 Act.
What conditions and safeguards are there? In the first place, before any building takes place a church must give proper notice so that the relatives or personal representatives of anyone buried in the land during the preceding 50 years knows what is proposed and can object if they desire. Secondly, any human remains must be removed and reinterred or cremated unless the Home Secretary by order certifies that the building will not involve disturbing the human remains. Thirdly, proper arrangements—laid down in detail in the schedule—must be made for dealing with any tombstones or other memorials, including the copying and safeguarding for posterity of all legible inscriptions. Your Lordships will know that a Member of our House, the noble Lord, Lord Teviot, is a distinguished archaeologist, and he has written to me authorising me to say that the provisions in the Bill for the registering of names and inscriptions has the full support of those who are involved and interested in matters of genealogy.
It is particularly important to lay stress on this knowing the importance which so many of your Lordships attach to such inscriptions, for they throw light on the history, habits, customs and ways of past 965 generations. They are an important part of our national heritage, and the Bill provides that where any tombstone, monument or other memorial is removed the church or other owner must deposit with the local archive authority and the Registrar General particulars of the removal, and a copy of any inscription thereon and similarly, if the work will render any graves inaccessible.
The actual removal and reinternment or cremation of the human remains, and the moving of the tombstones, memorials, et cetera, may be done by the personal representatives or relatives, or by the Commonwealth War Graves Commission, at the church's expense, or by the church itself if, within two months of the publication of the relevant notice, no one has come forward to undertake this work. The church will also be liable to pay reasonable compensation to anyone who may have lost the right to be buried in the burial ground in question.
Lastly, there is the saving, which I have mentioned, for town and country planning; and also one to ensure that the Bill does not apply to consecrated land belonging to the Church of England—for that is the only church where consecration carries with it legal consequences—or affect the faculty jurisdiction of the Church of England. All Church of England cases must continue to be dealt with under the Pastoral Measure and any amendments that may be attached to it.
Such, in outline, are the purposes and main features of this Bill. In moving its Second Reading, may I commend it to your Lordships as a useful reform which will save precious parliamentary time and will as well be of very real benefit to the churches concerned?
Moved, That the Bill be now read 2^a.—(The Lord Bishop of London.)

§ Baroness David
My Lords, we are all very grateful—those of us who are here—for the extremely clear and to me fascinating account that the right reverend Prelate has given to us of this matter, and indeed appreciate the generosity that he is showing in bringing forward this measure which is of help to other churches and societies and not particularly to his own church, the Church of England.
Human feelings have been taken into account in the schedule as to what is to be done with the remains and tombstones and memorials, and it is excellent that the archaeological and genealogical interests have been safeguarded too. We on these Benches feel that this is a sensible step to take. It will save parliamentary time. It will release land which is very much needed, and we would like to give the Second Reading our blessing.

§ The Earl of Avon
My Lords, I, too, commend the initiative of the right reverend Prelate the Bishop of London in introducing the Bill. A small reason why T could be replying, other than being a junior Minister, is that I am a trustee of a St. George's Hanover Square Trust, which is funded by the burial ground which the right reverend Prelate mentioned.
The right reverend Prelate has given a valuable summary of the steps which have gradually been taken 966 over the years to enable disused burial grounds to be put to other use. Perhaps I might put his remarks in the wider context of burial law as a whole. Until the early 1970s, this corpus of law was governed largely by a maze of 19th century statutes. The complexity of these statutes made it difficult for Governments to grasp the nettle of a comprehensive reform which would have embraced repeal of the 1884 Act. Attempts were made just before the last war and then sporadically in post-war years to draft proposals for reform and consolidation. In 1968, as the right reverend Prelate mentioned, the predecessors of the Department of the Environment eventually produced a draft Burial Bill. This included proposals for repealing the Disused Burial Grounds Act 1884, subject to planning permission for development and a special mechanism for determining objections.
I understand that the then Administration decided not to proceed with the Bill through lack of Parliamentary time, a phrase we have become very used to. All was by no means lost, however, for the Local Government Act 1972 did at least reform the large part of the burial law which related to local authority cemeteries. There are left those areas of burial law which the 1972 Act could not touch, and in particular the general prohibition under the 1884 Act on the erection of buildings on disused burial grounds. Given the somewhat unexciting nature of the subject, successive Governments in recent years, including the present Administration, may perhaps be forgiven for not having been able to accommodate completion of reform in their legislative programmes.
Nonetheless, as the right reverend Prelate pointed out, some steps have already been taken by other routes to relax the 1884 prohibition. Public bodies, such as local authorities, have for some years had a waiver to the 1884 Act under what is now the Town and Country Planning Act 1971 and other public general legislation. And, of course, the Church of England has enjoyed a waiver to the 1884 Act since the Pastoral Measure of 1968. But among those still subject to the prohibition are other denominations who wish to build on their disused burial grounds, or to dispose of them for building. It is fully in tune with the ecumenical spirit of the times that the right reverend Prelate, as chairman of the interdenominational Churches' Main Committee, has introduced proposals which would extend a similar waiver to these other churches. Noble Lords may indeed welcome the prospect that such a waiver would greatly reduce the flow of Private Bills aimed at overcoming the 1884 prohibition in particular cases.
The Bill is a revised version of one which the right reverend Prelate introduced in this House last May but allowed to lapse. I am glad that the advice from the Department of the Environment and other interested departments has been helpful to the Churches' Main Committee in producing this revision. The Government see nothing here which Ministers should question on grounds of principle. Questions involving removal of remains and safeguards and rights of objection for relatives of those buried in these grounds are sensitive in their nature and it is most useful for the House that the right reverend Prelate should have been able to put his proposals to us and deal with these issues on behalf of the Churches' Main Committee. The 967 Government for their part are sympathetic to the Bill, will adopt a neutral position and will not obstruct its progress.

The Lord Bishop of London
My Lords, I am most grateful to the House for giving such a favourable and friendly reception to the Bill and I thank the noble Baroness, Lady David, and the noble Earl, Lord Avon, for the kind way in which they have received it. The House can well appreciate that in these days when, at a certain level, ecumenical relationships do not make quite the progress that we should like, or at any rate do not advance with the speed we should like, it is very nice for me to be able to come on behalf of all the other churches in this country and present a Bill which will be of such benefit to them. It is in that spirit of ecumenical goodwill that I invite the House to give the Bill a Second Reading.