National Committee on Infant Cremation: 2016 annual report

4. New Legislation: The Burial and Cremation (Scotland) Act 2016

Background and General Information

The Burial and Cremation (Scotland) Act 2016, which completely replaces the existing legislation, was passed by the Scottish Parliament on 22 March 2016 and received Royal Assent on 28 April 2016. The Act is primary legislation which grants Scottish Ministers powers to make regulations in secondary legislation.

The Act contains a comprehensive legislative framework for burial and cremation in Scotland. It takes forward the wide-ranging recommendations made by the Burial and Cremation Review Group in its 2007 report, and will implement those recommendations made by Lord Bonomy which require legislative change.

In summary, the topics covered by the Burial and Cremation (Scotland) Act 2016 are:

• the management of burial grounds;
• applications for burial, fees and registers;
• the duration of rights over a lair and restoration to use of lairs;
• private (home) burial;
• exhumation;
• cremation, including duties of cremation authorities, applications, fees and registers - pregnancy loss is included in each of these processes;
• who may instruct the disposal of human remains;
• inspectors and inspection, as well as the power for Scottish Ministers to introduce licensing of funeral directors;
• the suspension of burial and cremation legislation in response to public health risks (eg, pandemics);
• methods for disposing of human remains which may be introduced in the future; and
• powers for Scottish Ministers to issue statutory codes of practice covering various parts of the funeral industry.

Progress to Date

On 28 December 2016, a number of sections of the Burial and Cremation (Scotland) Act 2016 came into force. The changes primarily concern the regulatory framework for burials in Scotland. To date, burials had been regulated by the Burial Grounds (Scotland) Act 1855 ("the 1855 Act"). On 28 December 2016, the 1855 Act was repealed and was replaced by sections of the 2016 Act or other transitional and transitory arrangements (described below). The repeal of the 1855 Act was necessary to avoid running parallel regulatory regimes. In addition, these Regulations will also enable Scottish Ministers to appoint Inspectors of Funeral Directors and Inspectors of Burial.

Transitional and Transitory Provisions

The 2016 Act will be commenced in stages. The Regulations which came in to force on 28 December 2016, therefore, make transitory arrangements to ensure that burial authorities can continue to perform their role in relation to burial. This will ensure that burial authorities can continue to sell lairs and rights to erect headstones, charge fees and maintain burial registers. These arrangements will remain in place until the rest of the burial provisions come in to force.

Burial - sections commenced on 28 December 2016

Appointing Inspectors - Sections commenced on 28 December 2016

In 2015 Scottish Ministers appointed an Inspector of Crematoria. While existing cremation legislation enabled Scottish Ministers to appoint the Inspector of Crematoria, there were no similar powers in legislation to enable Scottish Ministers to appoint Inspectors of Burial or Inspectors of Funeral Directors. From 28 December 2016, Scottish Ministers have the power to appoint Inspectors of Burial and Inspectors of Funeral Directors.

There are no immediate plans to appoint an Inspector of Burial. Scottish Ministers will, however, appoint an Inspector of Funeral Directors early in 2017.

The sections of the 2016 Act which will allow the appointment of Inspectors and have now come in to force are:

*Section 89(1)(b) (Inspectors of Cremation) will be brought into force when the provisions regulation cremation at Part 2 are commenced later in 2017.

Other Provisions

On 28 December 2016, a number of other, more technical, areas of the 2016 Act were commenced. These have been set out below:

Indicative Future Implementation Timescales

Different parts of the 2016 Act will be commenced at different times. Where Regulations are to be made, they will be designed in collaboration with stakeholders and will be subject to public and stakeholder consultation. The timescales below are high level and indicative only.

2016/17:

• Pregnancy loss and cremation, including the commencement of Part 3 of the 2016 Act (Arrangements)
• New powers for Inspectors

2017/18:

• Burial application process, private burial and exhumation
• Lair restoration to use
• Burial ground management regulations

2018/19 and beyond:

• Regulation of funeral directors
• Appointment of the Inspector of Burial