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Publication - Report

National Committee on Infant Cremation: 2016 annual report

Published: 4 May 2017
Population Health Directorate
Part of:
Health and social care

Second annual report of the National Committee on Infant Cremation.

35 page PDF

384.6 kB

35 page PDF

384.6 kB

National Committee on Infant Cremation: 2016 annual report
4. New Legislation: The Burial and Cremation (Scotland) Act 2016

35 page PDF

384.6 kB

4. New Legislation: The Burial and Cremation (Scotland) Act 2016

Background and General Information

The Burial and Cremation (Scotland) Act 2016, which completely replaces the existing legislation, was passed by the Scottish Parliament on 22 March 2016 and received Royal Assent on 28 April 2016. The Act is primary legislation which grants Scottish Ministers powers to make regulations in secondary legislation.

The Act contains a comprehensive legislative framework for burial and cremation in Scotland. It takes forward the wide-ranging recommendations made by the Burial and Cremation Review Group in its 2007 report, and will implement those recommendations made by Lord Bonomy which require legislative change.

In summary, the topics covered by the Burial and Cremation (Scotland) Act 2016 are:

  • the management of burial grounds;
  • applications for burial, fees and registers;
  • the duration of rights over a lair and restoration to use of lairs;
  • private (home) burial;
  • exhumation;
  • cremation, including duties of cremation authorities, applications, fees and registers - pregnancy loss is included in each of these processes;
  • who may instruct the disposal of human remains;
  • inspectors and inspection, as well as the power for Scottish Ministers to introduce licensing of funeral directors;
  • the suspension of burial and cremation legislation in response to public health risks (eg, pandemics);
  • methods for disposing of human remains which may be introduced in the future; and
  • powers for Scottish Ministers to issue statutory codes of practice covering various parts of the funeral industry.

Progress to Date

On 28 December 2016, a number of sections of the Burial and Cremation (Scotland) Act 2016 came into force. The changes primarily concern the regulatory framework for burials in Scotland. To date, burials had been regulated by the Burial Grounds (Scotland) Act 1855 ("the 1855 Act"). On 28 December 2016, the 1855 Act was repealed and was replaced by sections of the 2016 Act or other transitional and transitory arrangements (described below). The repeal of the 1855 Act was necessary to avoid running parallel regulatory regimes. In addition, these Regulations will also enable Scottish Ministers to appoint Inspectors of Funeral Directors and Inspectors of Burial.

Transitional and Transitory Provisions

The 2016 Act will be commenced in stages. The Regulations which came in to force on 28 December 2016, therefore, make transitory arrangements to ensure that burial authorities can continue to perform their role in relation to burial. This will ensure that burial authorities can continue to sell lairs and rights to erect headstones, charge fees and maintain burial registers. These arrangements will remain in place until the rest of the burial provisions come in to force.

Burial - sections commenced on 28 December 2016




1 and 2

Meaning of "burial ground" and Meaning of "burial authority"

Provide new definitions to cover all burial grounds (local authority as well as private) and a new definition for burial authorities.


Provision of burial ground: local authority

Places a duty on local authorities to provide at least one open burial ground within their local authority area.


Provision of burial ground outwith local authority area

Allows local authorities to provide a burial ground which is situated wholly or partly outwith their local authority area.


Joint provision of burial ground

Allows two or more local authorities to jointly provide a burial ground.


Management of burial ground

Allows Scottish Ministers to make regulations in connection with the management, regulation and control by a burial authority of burial grounds.


Right to erect a building

Provides the power to burial authorities to sell a right to erect a building or other structure on a burial ground.


Register of rights of burial

Ensures that burial authorities must continue to maintain a register of the sale of rights of burial.

20(1), (2)(a) and (b), (3), (4), (5) and (6)

Fees for burial

This section will be partially commenced to ensure that burial authorities can continue to set and charge fees for burial and will place a duty on burial authorities to publish their fees.

Appointing Inspectors - Sections commenced on 28 December 2016

In 2015 Scottish Ministers appointed an Inspector of Crematoria. While existing cremation legislation enabled Scottish Ministers to appoint the Inspector of Crematoria, there were no similar powers in legislation to enable Scottish Ministers to appoint Inspectors of Burial or Inspectors of Funeral Directors. From 28 December 2016, Scottish Ministers have the power to appoint Inspectors of Burial and Inspectors of Funeral Directors.

There are no immediate plans to appoint an Inspector of Burial. Scottish Ministers will, however, appoint an Inspector of Funeral Directors early in 2017.

The sections of the 2016 Act which will allow the appointment of Inspectors and have now come in to force are:




89(1)(a) and (c)*

Appointment of Inspectors

Allows Scottish Ministers to appoint Inspectors of Burial and Inspectors of Funeral Directors.



Makes provision about the preparation and publication of reports.

*Section 89(1)(b) (Inspectors of Cremation) will be brought into force when the provisions regulation cremation at Part 2 are commenced later in 2017.

Other Provisions

On 28 December 2016, a number of other, more technical, areas of the 2016 Act were commenced. These have been set out below:


Subject matter


Acquisition of land


Regulations and consultation requirements



Schedule 2


Burial Grounds (Scotland) Act 1855

Where the reference the 1855 Act:

Scottish Board of Health Act 1919

Church of Scotland (Property and Endowments) Act 1925

Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947

Local Government etc. (Scotland) Act 1994

Indicative Future Implementation Timescales

Different parts of the 2016 Act will be commenced at different times. Where Regulations are to be made, they will be designed in collaboration with stakeholders and will be subject to public and stakeholder consultation. The timescales below are high level and indicative only.


  • Pregnancy loss and cremation, including the commencement of Part 3 of the 2016 Act (Arrangements)
  • New powers for Inspectors


  • Burial application process, private burial and exhumation
  • Lair restoration to use
  • Burial ground management regulations

2018/19 and beyond:

  • Regulation of funeral directors
  • Appointment of the Inspector of Burial


Email: Vicki McKechnie

Phone: 0300 244 4000 – Central Enquiry Unit

The Scottish Government
St Andrew's House
Regent Road