The voice of archaeology in Britain and beyond

Cover of British Archaeology 102

Issue 102

Sept / Oct 2008



Windfarm dig finds boat in style of Sutton Hoo

Prehistoric village under Isle of Man runway

Rare house continues first farmers debate

In the press

In Brief & Phase 2


Hadrian in London
The 'Hadrian: Empire and Conflict' exhibiton is impressive

Hadrian's Wall
Abandoned after three centuries, but still alive

New WHS, the Antonine Wall
David J Breeze tells how to make a successful bid to UNESCO

THE BIG DIG: Stonehenge
Mike Pitts sorts out the technical data

additional content
Reading about the Archaeology of Stonehenge

The Stonehenge Olympics
Plans for the stones to get the new facilities ready for 2012

on the web

Recommended websites
Caroline Wickham-Jones explores the realms of archaeological fiction and a look at Barwick-in-Elmet Historical Society's website


your views and responses


a piece about Bonekickers with no archaeological puns!


Seeking what is best for buried bones, Sebastian Payne looks at new leglislation

CBA correspondent

Campaigns, comment and communications from the CBA
Gill Chitty on the stones, the bill and beyond


ISSN 1357-4442

Editor Mike Pitts


Seeking what is best for buried bones

Sebastian Payne, chief scientist at English Heritage, is concerned that obscure legislation is leading to unnecessary problems.

Human remains are of great importance for understanding past societies. This significance is growing rapidly with the development of new techniques – the study of ancient DNA, for instance, or stable isotopes. But legislation relating to human remains in England puts such research at risk.

The basic problemis that these laws were not written with archaeology in mind. The burial acts, passed in the middle of the 19th century, were concerned with public health. Later legislation, such as the Town and Country Planning Regulations 1950 and the Disused Burial Grounds (Amendment) Act 1981, is concerned with planning.Where burials are on consecrated ground, things are further complicated by church law.

Until recently, this caused no great problem for archaeologists¹. When human remains were excavated, depending on which legislation applied, either Section 25 licenses were issued under the Burial Act 1857, or directions were issued under one of the later planning acts. These set conditions which allowed earlier human remains to be deposited in museums, as one would expect, and so become available for future research.

Burial grounds are running out of space, and the laws have been reviewed. Early in 2007, archaeologists were reassured when the government's reply to consultation recognised the value of their work and saw no need for further regulation. This review, however, appears to have raised uncertainties, and, within a few months, the way in which licenses and directions were issued changed. Some of the problems this created were addressed in a statement earlier this year by the Ministry of Justice². Some, however, still remain, as do the effects of uncertainties of the past 18 months.

In one case which is causing particular concern (I will not identify the site, at the request of those involved), about 200 18th and 19th century burials were excavated to make way for a new building. As the remains were likely to be important, one of the planning conditions was that they should be assessed and studied. The planning act which applies in this case requires that they should be reburied before building can start.

Normally, this could have been dealt with. But the bones are unwashed and unassessed over 18 months after excavation, because the developer, following correspondence with the Ministry of Justice, is concerned that their study might be illegal. Behind this is a statement by a judge in an obscure 19th century case that it is an offence in common law to disturb the remains of the dead without good reason, or to offer them indignity. The development is good cause for disturbing the remains, and the planning condition and normal archaeological guidelines ensure that they are treated with respect – archaeologists have a good track record on this. So where is the problem? Once raised, doubts are hard to dispel. Such has been the delay, the developer is now pressing the local authority to allow it to rebury the human remains without study. This would set a very damaging precedent.

In a second case, the excavators of an important prehistoric site who applied for a Burial Act license because they planned to excavate human remains, were surprised and concerned that the license required reburial within two years. They had expected that the remains could be deposited in a museum for future research – normal practice until last year. This is not unusual: I understand that all recent licenses require reburial.

The Ministry of Justice's statement shows that it is aware of the problems, and that it intends to deal with them. This is very welcome. But at the moment there is a great deal of uncertainty, and there is a risk that very damaging precedents are being created.

more science

  1. Guidance for Best Practice for Treatment of Human Remains Excavated from Christian Burial Grounds in England (English Heritage & Church of England, 2005)
  2. Burial Law and Archaeology
  3. See also Advisory Panel on the Archaeology of Christian Burials in England (APABE)
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