Specific laws and guidelines exist to control how Councils
like Southwark treat CWGC war graves.
The London Local Authorities Act 2007 Part 5 Miscellaneous – Section 74 Power to disturb human remains
The impact of the 2007 Act was it was supposed to allow London Boroughs to disturb human remains, under certain conditions.
It only applies to private graves, not common/public/paupers graves as public graves ‘have no rights’.
Notice of intention to disturb remains must be served on the Commonwealth War Graves Commission. Disturbing human remains in CWGC war graves or removal or repair etc of memorials is illegal without the Commission’s approval.
The 2013 Technical Guidance on Reuse of Graves sets out the provisions regarding CWGC graves on page 15:
Explanatory Memorandum City of London Corporation on the new 2007 Act
Summarising the various powers (page 13) – although it doesn’t mention the provision in the Act about CWGC war graves:
“Section 74 enables the disturbance of human remains in certain graves, in cases where a burial authority wishes to deepen the grave to enable more burials to take place. Under the City of London (Various Powers) Act 1969 and the Greater London Council (General Powers) Act 1976, burial authorities are already able, if conditions are met, to carry out burials in existing graves without disturbing human remains. They may only do so in respect of graves in respect of which they have extinguished a registered right of burial. The 1969 and 1976 Acts provide that the burial authority is not entitled to extinguish any rights of burial until at least 75 years after the last burial in the grave, and after having made efforts to notify the holder of the right of burial, and allow objections to be made.
Section 74 will only apply in relation to a grave where a registered right of burial or interment has been extinguished by the burial authority under either the 1969 Act or the 1976 Act. The burial authority would be able to disturb human remains for the purpose of deepening the grave to allow further burials to take place. No human remains may be disturbed under the Section if they have been interred for a period of less than 75 years. Any remains disturbed must be reinterred in the same grave.
Subsection (4) of Section 74 sets out the procedure which the burial authority must follow before disturbing any human remains, and that includes publication of notices of their intention to do so, and serving notice of their intention to do so on the registered owner of the right of burial (if the right has not yet been extinguished).
If objections are made by the registered owner of the right of burial, or the registered owner of a tombstone which is to be removed, or by a relative of the person whose remains are proposed to be disturbed, then the burial authority is not able to exercise its powers under the Section for a period of 25 years.
Subsection (8) provides that the burial authority must comply with any directions given by the Secretary of State with the respect to the removal and reinterment of human remains.
Subsections (9) and (10) make special provision about graves in consecrated land.”