ALICE BARKER TRUST
Cremations & Cremation Law - undertakers are unnecessary
1. What information has the Ministry of Justice issued, to make clear, that undertakers are unnecessary, when anyone aged 16 and over, needs to arrange a cremation?
2. Does the Ministry of Justice agree, that the form which must be used to apply for a cremation, gives the very misleading impression at the very start, that undertakers must be used, because a box for the name of an undertaker DOES NOT state "if one is being used" or words to that effect?
3. Was that fact overlooked, when civil servants were drafting the Cremation (England and Wales) Regulations 2008?
4. Has the Ministry of Justice issued guidance for those arranging cremations, who do not use undertakers and (a) if so, where can that information be found or (b) if not, when will such information be made available?
Anyone aged 16 or over, who applies for a cremation to take place, must complete the first form in Schedule 1 of the 2008 Regulations. That is headed, 'Application for cremation of the body of a person who has died'. See https://www.legislation.gov.uk/uksi/2008...
We congratulate civil servants for having sensitised the language in the application form, by referring throughout to the "person who has died" and not the impersonal, alienating and jarring notion of "the deceased", although inadvertently, that does appear once under question 10.
In April 2008, guidance was provided for medical practitioners, about how to complete the two medical certificates needed for each cremation. We have been unable to find anything similar, for those with the greatest need for credible information and guidance, i.e. those who are most vulnerable, being those who are newly bereaved.
The Department for Work & Pensions makes clear, that anyone who is eligible for a Funeral Payment, does not have to use an undertaker for any purpose and that includes a cremation. That has always been clear in the law on Funeral Payments but is rarely known, even by health and welfare staff involved with those who are dying and newly bereaved. See Regulation 9(2), The Social Fund Maternity and Funeral Expenses (General) Regulations 2005, statutory instrument number 3061 - https://www.legislation.gov.uk/uksi/2005...
Thank you for your e-mail, I am writing to advise you that your enquiry does not fall under the Freedom of Information Act 2000 (FOIA) regime and has been rejected by the Disclosure Team.
It may be helpful if I explain that the FOIA gives individuals and organisations the right of access to all types of recorded information held, at the time the request is received, by public authorities such as the Ministry of Justice (MoJ). Section 84 of the FOIA states that in order for a request for information to be handled as a FOI request, it must be for recorded information.
For example, a FOI request would be for a copy of a policy, rather than an explanation as to why we have that policy in place. On occasion, the MoJ receives requests that do not ask for recorded information, but ask more general questions about, for example, a policy, opinion or a decision.
You may wish to re-submit your enquiry to the Ministry of Justice, which will be treated as Official Correspondence. Our contact details are as followed:
102 Petty France
020 3334 3555
If you do have any questions relating specifically to the FOIA or Data Protection Act (DPA), please contact the Disclosure Team at the following e-mail address: [email address]
The Disclosure Team
ALICE BARKER TRUST
NO LEGAL REQUIREMENT TO USE UNDERTAKERS
Please provide the following details:-
1. Recorded information which the Ministry of Justice has, which proves that staff made every reasonable attempt to comply with the law in the Civil Service Code and associated Statutory Guidance, when they drafted the most recent changes to primary and secondary legislation on cremations.
2. Recorded information which the Ministry of Justice has, which has been exchanged between its staff in emails and by any other means which proves, (a) they understand that undertakers do not have to be used for any reason and (b) how long staff have been aware of that fact.
3. Recorded information which the Ministry of Justice has, which proves that staff made every reasonable attempt to comply with the law in the Civil Service Code and associated Statutory Guidance, when they drafted or accepted from another source, guidance for the public on arranging cremations, which is currently displayed on the GOV.UK website.
The above FoI questions, follow those rejected by the Ministry of Justice (MoJ) on the 28 May 2019. The original questions and reason for their rejection are detailed above.
Question 1 posed here, should reveal whether or not civil servants were aware of the fact, that writing the very notion of "funeral director" into any law, is misleading and an unintended deception. That is because undertakers have no powers to direct funerals and do not have to be used for any purpose. That which unintentionally misleads and unintentionally deceives, breaches civil service law. The only people in law who can direct funerals, are most often the nearest relatives. At other times they are the friends of those who have died or those responsible for dealing with the written Wills of adults.
This is not a trivial or pedantic point, in that public service information rarely makes clear, the most fundamental of all legal rights which we all have, when we are newly bereaved and facing emotional and social crises.
In terms of mental health protection and promotion, empowerment is essential in the heat of emotional and social crises. To achieve empowerment, sound information is essential, to put an immediate stop to and prevent further disabling dependency, powerlessness, an overwhelming sense of helplessness and avoidable anxieties and fears.
To set the record straight, it is essential to use language which gives a crystal clear picture of the law and sound psychology. That means making every effort to remove ambiguities and other uncertainties. It also means ensuring what is written is effortless to understand. That is crucial when concentration may be very difficult, when struggling with the immediate impacts of devastating bereavements.
Question 3 above, should make clear, why public information about cremations on the GOV.UK website, does not state that undertakers do not have to be used for any reason. That basic fact, needs to be raised by MPs in future Parliamentary Adjournments Debates, on the inability of many to pay for commercial funerals, typical of the 19th and 20th centuries.
A 21st notion of health and welfare funerals, would not only focus on protecting the health of individuals and their close relationships but also on how to minimise costs, immediately after bereavements..
Local authorities are legally required to put health and wellbeing at the heart of "everything" they do. They must also ensure all decisions on all matters attempt to maximise health benefits.
Lawful and sensitive alternatives to funerals would also be mentioned.
Following the rejection of our initial questions, the MoJ helpfully sent us a letter dated the 07 Aug 2019 which states :-
(a) there is NO LEGAL REQUIREMENT TO USE AN UNDERTAKER but that crucial point is not mentioned in any guidance, despite the MISLEADING LEGAL FORM which must be used for arranging a cremation, i.e. the form asks at the very start, for the name of an undertaker, giving the misleading impression that one must be used;
(c) "Thank you very much for raising this issue and your points are well made. We will consider this issue when we take forward our planned changes to cremation regulation referred to above".
In view of the details in that 07 Aug 2019 letter, we have posed above, the 3 new FoI questions. Whatever action is taken in response to those, must comply with the legal duties in the Civil Service Code and associated Statutory Guidance.
Those legal duties demand that civil servants act with honesty, impartiality and integrity and they must not do anything on behalf of any branch of the government, which would break any aspect of law.
The law in the Civil Service Code requires that all information civil servants provide, including on behalf of the MoJ :-
must be accurate;
must be "objective" which means basing "advice and decisions on rigorous analysis of the evidence", e.g. so important matters are not dealt with superficially;
must not avoid "inconvenient" and "relevant" "facts" and "considerations";
must not inadvertently or otherwise, "mislead" and/or "deceive";
must be corrected "as soon as possible" and those words are very strict, unlike the more flexible principle of 'as soon as reasonably practical'.
Those explicit legal rules mean, that when one or more of those are breached by any information, it can only be left unchanged, during a period of time when it is, LITERALLY IMPOSSIBLE TO MAKE THE NECESSARY CORRECTIONS.
Clearly, it is possible to make immediate corrections and clarifications to any details on the GOV.UK website. That is particularly urgent in view of the fact that the cremation application form is seriously misleading, i.e. where it asks for the name of an undertaker, without stating that there is no legal requirement to use one.
It would take longer to make corrections and clarifications to laws but even so, civil servants have a legal duty to ensure those are corrected and clarified "AS SOON AS POSSIBLE".
Legal judgments make clear, that withholding basic information, deliberately or otherwise, can be so misleading, that judges could arrive at the wrong decisions. Hence the duty of candour and to tell the whole truth.
The lack of essential information at the most critical time for those newly bereaved, can so easily result in making decisions which are later regretted, for emotional, social and financial reasons. It is easily within the power of the MoJ to help minimise those acute risks.
As seen above, our initial FoI request with 4 questions was rejected, because the MoJ decided we had not asked for "recorded information".
That would be entirely true, if no "recorded information" exists in connection with those 4 questions, e.g. no records exist of relevant communications between staff, about advice and suggestions on how to revise legislation and how not to do so. Governmental organisations are known for making mountains of "recorded information". To hear that none exist on essential subjects, gives the impression that openness and transparency may be treated as discretionary aspirations rather than firm promises.
Dear Mr Bradfield,
Thank you for your FOI requested dated 10^th August. Please find attached
Ministry of Joanna Wilkinson
Coroners, Burials, Cremations and Inquiries Policy Team
102 Petty France, Area 10:18, Westminster, London, SW1H 9AJ
Dear Joanna Wilkinson,
Thank you for your request for clarification regarding, "which calendar years you would like the recorded information for in relation to Question 2".
I can see why you need that information and for that reason, I gladly withdraw request numbered 2(b).
I hope it is reasonable to request in regard to 2(a):-
the 24 months prior to the the making of the current Cremation Regulations;
the 24 months up to the end of August 2019.
Dear Mr Bradfield
Thank you for your freedom of information request.
Please see our response attached.
Ministry of Ričardas Jarmuševičius
Coroners, Burials, Cremations and Inquiries Policy Team
Policy, Communications and Analysis Group
102 Petty France, Area 10.20, Westminster, London, SW1H 9AJ
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Thank you for your reply of the 07 October.
In that it is stated,
"We do not hold the information that you have requested under 1 and 3 because all MoJ officials who are civil servants are automatically expected to comply with the Civil Service Code in carrying out their duties".
It is undoubtedly true that everyone, including civil servants are automatically expected to comply with the law. If life were so simple, staff in our public services would rarely if ever be in breach of any laws.
It is also stated that,
"the fact that undertakers do not have to be used is well known".
We must be living in a parallel universe, because in our intensive and practical experience, that is not widely understood among the public or indeed staff in our health and welfare services.
We have had endless difficulties, trying to persuade public services to remove false and misleading information from their websites. That is made difficult by statements which give the false impression, that undertakers must be used. A clear example is the wording of the legally required form, when applying for a cremation. We assume that was written by MoJ civil servants.
The Civil Service Code requires that no information be misleading and that corrections and implicitly clarifications, must be made as soon as possible. That strongly suggests to us, that civil servants appear to remain in breach of that aspect of law, because guidance could quickly be issued on the subject, through GOV.UK..
Many millions of people will through continuing ignorance, false and misleading information, be obstructed from exercising their legal rights, which if exercised in some cases, could prevent emotional and relationship breakdowns, when facing the immediate impacts of bereavements.
Thus ignorance and false information can be psychosocially harmful, as formally stated by the Department of Health & Social Care. It advises to obtain information from what are believed to be credible sources but often those prove to be untrustworthy.
A crucial point we need to mention, is that all too often false and misleading information is removed and nothing is put in its place. That can reinforce the taboo around the subject of death, because the impression can then be given, that no information means no questions should be asked.
We are sure that nothing more can be gained from this FoI request. However, we are sure that it will serve an educational purpose, for those who find it.
Also, we will be able to refer to this website, GPs and other NHS staff, who still need convincing, that there is no legal requirement to involve undertakers for any reason.
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