Consultation on a Proposed Bill Relating to Burial and Cremation and Other Related Matters in Scotland - Web Only

Regulation of the funeral industry

182 The Infant Cremation Commission noted concerns raised during its deliberations about the lack of regulation of the funeral industry. As the Commission's remit was to consider improvements required in procedures relating to the cremation of babies, stillborn babies and pregnancy losses, it felt that this was beyond its scope. Nonetheless, the Commission recommended that the Scottish Government should consider whether regulation of the funeral industry was required. Any proposals to regulate the funeral industry would need to be consulted on in detail, but general principles can be considered here.

183 Regulation of the funeral industry in other countries is not widespread, but has been implemented in various jurisdictions, either in whole or part. In Ontario, Canada, for example, people acting as funeral directors or operating funeral establishments are required to be licensed, with licensing requirements set out in legislation. The initial requirements for licensing include the need for individuals to have successfully undertaken relevant training; to have passed professional exams set by the Board established to manage the funeral industry; and to participate in regular inspection. Legislation also sets out the requirements for the renewal of licences.^[29]

184 In Australia, the Government of New South Wales has used legislation to prescribe a range of funeral processes, particularly in relation to the handling of bodies. The legislation also requires the keeping of a register of people who operate mortuaries and crematoria, and includes provisions for the inspection of mortuaries, crematoria and cemeteries. However, the industry has not been regulated as far as requiring particular qualifications for people who are acting as funeral directors.^[30]

185 In the USA, the Federal Trade Commission (FTC) Funeral Industry Practices Rule (which applies to all states) offers financial protection to people when making funeral arrangements.^[31] This includes requiring funeral directors to provide a full itemised list of costs for each funeral. Additionally, the FTC provides general advice on funeral arrangements to help people be better informed when planning a funeral and purchasing particular services. Individual states have also established regulatory regimes which govern the practices and standards of the funeral industry in those particular states. In the UK, people arranging funerals are offered some financial protection through the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, although this is limited.^[32]

186 Although regulation of the funeral industry is still relatively uncommon, an increasing number of jurisdictions have recently considered regulating the funeral industry, including Ireland^[33] and New Zealand.^[34] The Scottish Government will continue to monitor developments in these countries to inform the potential regulation of the Scottish funeral industry.

187 Were regulation to be considered desirable, there are numerous possible models for regulating the funeral industry based on the examples of other jurisdictions. Requiring those acting as funeral directors to be licenced would establish consistent minimum standards of training across the industry. Such a system could be supported by an inspector, and a range of sanctions - including the suspension or removal of a funeral director's licence to practice - could be introduced in response to poor performance or failure to meet standards. A licensing regime could also be used to help support sound businesses by placing particular financial requirements on those applying for a licence. In Ontario, for example, a licence will not be granted where the applicant is not considered to be financially responsible. Any proposal to licence the funeral industry would be accompanied by a Business Regulatory Impact Assessment and full consultation.

188 A licensing scheme supported by an inspection regime would provide a comprehensive way to ensure minimum standards in the funeral industry. While this would bring benefits, it would also be a large and costly process, both to establish and run. There are a number of other regulatory models which could provide assurance about industry standards and practice. As a minimum, the funeral industry could be required to be self-regulating. This would be similar to the existing model, but the Scottish Government could provide clear guidance on what was expected of funeral directors. This would also require some system of sanction if any funeral director did not meet guidance standards, and it is not clear what sanctions could exist in a system of self-regulation.

189 Before any final decisions are made, the Scottish Government is keen to hear views about the desirability of regulating the industry. While regulation would ensure minimum standards and allow for greater scrutiny of the industry, including the ability to prevent people who do not adhere to standards from practising, it may also add to the financial and administrative burden of funeral directors. Such additional costs may in turn be passed on to bereaved families.

Q83 - Would regulation of the funeral industry be beneficial? What would regulating the industry achieve that cannot be achieved already? What are the disadvantages of regulating the funeral industry?

Q84 - If the funeral industry were to be regulated, what approach would be most useful for Scotland? Do the examples given from other jurisdictions provide useful models, ranging from a fully licensed system to a process of self-regulation?

Q85 - Do you agree that an additional inspector role, separate from the Inspector of Crematoria, would be required to support a regulatory regime?

190 Depending on views expressed in this consultation, the Scottish Government may undertake a more detailed consultation on the proposed regulation of the funeral industry, including requirements for licensing and relicensing.