Funeral director licensing scheme for Scotland

Introduction

1. The Burial and Cremation (Scotland) Act 2016 ('the 2016 Act') received Royal Assent in April 2016. It provides a modern, comprehensive legislative framework for burial and cremation in Scotland. Many of the 2016 Act's provisions are rooted in recommendations made by the Infant Cremation Commission, the National Cremation Investigation and the Burial and Cremation Review Group.

2. The 2016 Act gives Scottish Ministers the power to, amongst other things, establish an inspection regime for burial authorities, cremation authorities and funeral directors and to set up a licensing scheme for funeral director businesses. Key to this is the development of regulations and codes of practice which will be fundamental in ensuring minimum standards of care of the deceased. To promote compliance with the legal requirements within these regulations and codes, Scottish Ministers can appoint inspectors under section 89 of the 2016 Act as Inspectors of Burial, Cremation and Funeral Directors ('Inspectors').

3. Scottish Ministers first appointed the Inspector of Crematoria in March 2015.^[1] The Inspector was appointed under the Cremation (Scotland) Regulations 1935, which at that time was the most up-to-date legislation relating to cremation. In April 2019, following the implementation of the new 2016 Act, the Inspector of Crematoria's remit was widened to encompass the whole cremation process and was renamed 'Inspector of Cremation'.

4. The first Inspector of Funeral Directors was appointed in 2017 by Scottish Ministers (by virtue of section 89(1) of the 2016 Act) to review the funeral sector in Scotland, progressing recommendations by the National Cremation Investigation and fulfilling the recommendations of the Infant Cremation Commission.

5. In October 2020, the Inspector of Crematoria's remit was widened to encompass the entire funeral sector (subsuming the remit of the Inspector of Funeral Directors), and an additional Inspector was appointed. From that time, there has been appointed a Senior Inspector of Burial, Cremation and Funeral Directors and an Inspector of Burial, Cremation and Funeral Directors.

6. Some parts of the 2016 Act have already been implemented. Notably, in 2019, Part 2 on cremation was commenced, following which the Cremation (Scotland) Regulations 2019 were made. These regulations took forward recommendations from the Infant Cremation Commission and National Cremation Investigation to implement improvements to the cremation process and the handling of ashes in Scotland.

7. The purpose of this consultation is to seek views on the implementation regulations for funeral director licensing, which if implemented would create a licensing regime for funeral directors.

8. This consultation is being published as part of a collection of consultations relating to the content of various sets of regulations that will be made under sections of the 2016 Act which have not yet been implemented. They relate to:

• Inspection regulations
• Burial regulations
• Alkaline hydrolysis (an alternative to burial or cremation)

9. All consultations in this collection are available at the Scottish Government Citizen Space website.

10. You are welcome to comment on all parts of this consultation or select only the parts and questions most relevant to you.

Licensing for Funeral Director Businesses

11. Funeral director businesses in Scotland arrange and conduct approximately 62,000 funerals per year.^[2] Existing evidence from the Competition and Markets Authority (CMA)^[3] and the industry itself^[4] suggests that the UK public assumes funeral directors are already regulated or, at least, have to meet minimum standards. There is in fact no current Scottish regulation specifically applicable to funeral directors other than the provisions of the 2016 Act which have been commenced to date.

12. The 2016 Act provides Scottish Ministers with the power to introduce licensing of funeral directors. Funeral director businesses operating in Scotland are not currently subject to industry specific statutory regulation and do not have to be registered with a regulatory body or hold a licence by law. On a non-statutory basis, representative bodies for funeral directors do support their members to meet professional standards that those bodies set and provide information to the bereaved. These include the National Association of Funeral Directors (NAFD) and the National Society of Allied and Independent Funeral Directors (SAIF). Standards are set by each organisation and are set out in their own non-statutory Codes of Practice.

13. As noted in the introduction, the first Inspector of Funeral Directors was appointed by Scottish Ministers in 2017 to review the funeral sector in Scotland. The Inspector published a report in August 2019 on completion of their review. The report made recommendations to Scottish Ministers about how funeral directors should be regulated, including that a licensing scheme should be introduced. Scottish Minsters agreed with the findings and recommendations of the report, and in August 2019 the previous Minister for Public Health, Sport and Wellbeing announced the Scottish Government's intention to develop a licensing scheme for funeral director businesses.

14. It is recognised that a licensing scheme for funeral directors would be complementary to the intended inspection regime for funeral directors, burial authorities and cremation authorities (see inspection regulations consultation), providing greater oversight for, and transparency about, the industry.

Part 5 of 2016 Act: Introduce a Licensing Scheme for Funeral Directors

15. Scottish Ministers are now proposing to bring into force Part 5 of the 2016 Act to introduce a licensing scheme for funeral directors in Scotland.

16. Part 5 contains the relevant provisions for licensing which will apply to anyone who carries on business as a funeral director in Scotland. As part of the proposed scheme, sections 94 to 96 of the 2016 Act would be commenced to make it an offence to carry on business as a funeral director without obtaining a licence for that business issued by the licensing authority. Where a person operates more than one business they will need to apply for a separate licence for each business.

Aim of Proposed Licensing Scheme for Funeral Directors

17. The licensing regulations are intended to regulate the industry in its care and handling of the deceased. The aim is to ensure that the care and handling of the deceased and the practices of the funeral sector are being delivered in compliance with the minimum standards set by the Scottish Government. It is intended that a consequence of this will be increased confidence in Scotland's funeral director sector.

18. The regulations will provide greater transparency about the Scottish funeral industry, through increased scrutiny of the sector (by way of inspections associated with licence applications and licence renewals), and the publication of a 'directory' of licensed funeral directors, which is easily searchable by the public. It is anticipated that this directory may also bring added benefits such as allowing the licensing authority to communicate inclusively with all funeral director businesses in Scotland. This is something which is not currently possible.

19. The regulations will also keep funeral directors in Scotland accountable for meeting minimum standards of practice as set out in the Funeral Director: Code of Practice ("the Code") (against which funeral directors will be inspected), the 2016 Act, and, in future, any conditions of licence.^[5] Indeed, we intend that the proposed licensing scheme would require funeral director businesses to meet minimum standards of operation in order to be successful in being granted a licence.

20. It is the Scottish Government's view that introducing a licensing scheme that did not link licences to minimum standards would prevent the scheme from effectively ensuring the dignified and appropriate treatment of the deceased and appropriate practices of funeral director businesses. As noted, section 94 of the 2016 Act provides the power for Ministers to introduce a licensing scheme and that a person may not carry on business as a funeral director unless the person holds a licence issued under the scheme in relation to the business. The questions in this consultation therefore proceed on the basis that all funeral director businesses in Scotland will require a licence if the scheme is introduced and that these businesses will only be granted a licence (and allowed to continue operating) if they maintain compliance with the minimum standards.

21. The Scottish Government's position is that to achieve the aim of the proposed licensing scheme, we require to bring into force the option which Parliament has provided in the 2016 Act; namely, to implement a statutory scheme.

22. It is also intended, however, that funeral director businesses will experience benefits from the scheme, including increased public confidence in the quality and reliability of their services, and the reputational benefits that would follow. It will also provide businesses with an impartial and transparent assessment of their compliance with agreed standards, and the ability to advertise their licence status to potential clients.

Content of Proposed Licensing Scheme

23. The Scottish Government views the proposal to bring the licensing scheme into existence as an important part of the overall regulatory framework for funeral directors. This is because the scheme would provide reassurance to the public who can expect that (a) any funeral director business in Scotland is licensed, and (b) that they are therefore meeting minimum standards of care for the deceased and in their practices as funeral director businesses.

24. To enable operation of the licensing scheme, regulations setting out the detail of that scheme will require to be made under section 95 of the 2016 Act. The regulations will set out details about how the licensing scheme will operate. This could include:

• Who is to administer the scheme (the 'licensing authority'),
• The application forms and the application process (including documents to be submitted with applications),
• Enabling the licensing authority to grant or refuse an application with or without conditions, specify circumstances where the licensing authority may or must grant or refuse a licence application (and whether that licence may be granted subject to any conditions), and timescales,
• How long a licence lasts, and whether it can be renewed,
• Enforcement-related matters, such as how and in what circumstances a licence might be suspended or revoked,
• How decisions of the licensing authority can be appealed, and
• The implementation of licence application fees.

25. It is intended that, under the proposed inspection regulations (see inspection regulations consultation), Inspectors will inspect funeral director businesses to assess their compliance with the 2016 Act, regulations, conditions of licence and the Funeral Director: Code of Practice. After each inspection, it is intended they would produce an inspection report, which would be provided to the funeral director business and the licensing authority. It is proposed that these inspection reports would be taken into account by the licensing authority when determining whether to grant or reject licence applications (or renewal applications). It is also intended that the licensing authority would be provided with the power to grant licences with 'conditions', with which a business would have to comply. Compliance with any licence conditions would also be subject to routine and ad-hoc inspections.

Stakeholder Engagement and Further Consultation

26. Stakeholder engagement has been important for informing the Scottish Government's initial proposals for the intended licensing scheme. In 2021, as recommended in the Inspector of Funeral Director's 2019 report, the Scottish Government engaged the funeral sector by establishing a Licensing Regulations Working Group. The Working Group includes representatives from:

• Funeral director businesses,
• Faith-based groups,
• Funeral sector trade associations,
• Local government, and
• Inspectors of Burial, Cremation and Funeral Directors.

27. At time of publication of this consultation, the Working Group has met three times (in May 2022, August 2022, and April 2023) to discuss the development of various aspects of the licensing scheme. Input from the funeral sector on this Working Group has been important for providing professional and technical expertise to the topic of funeral director licensing, to ensure that the functions of the scheme contribute to achieving its overall aim. Their membership, remit and agreed meeting minutes can be found on the Scottish Government website.

28. This consultation on the funeral director licensing scheme will be the first of two consultations on this topic. Section 105(1) of the 2016 Act requires the Scottish Government to prepare a draft of the licensing regulations and consult on them before they are laid in the Scottish Parliament. The content of the draft regulations will be informed by the responses to this consultation. The draft licensing regulations will be published for consultation once they have been fully developed.