National Committee on Infant Cremation: 2017 annual report

4. The Burial And Cremation (Scotland) Act 2016

Background and General Information

The Burial and Cremation (Scotland) Act 2016 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 ^[2] , and implemented those recommendations made by Lord Bonomy which required 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, application forms, 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 On 28 December 2016, the 1855 Act was repealed and was replaced by sections of the 2016 Act or other transitional and transitory arrangements (described below).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 also enabled Scottish Ministers to appoint Inspectors of Funeral Directors and Inspectors of Burial.

Transitional and Transitory Provisions

The 2016 Act is being 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

Section	Title	Description
1 and 2	Meaning of “burial ground” and Meaning of “burial authority”	Provide new definitions to cover all burial grounds (local authority as well as private) and a new definition for burial authorities.
3	Provision of burial ground: local authority	Places a duty on local authorities to provide at least one open burial ground within their local authority area.
4	Provision of burial ground outwith local authority area	Allows local authorities to provide a burial ground which is situated wholly or partly outwith their local authority area.
5	Joint provision of burial ground	Allows two or more local authorities to jointly provide a burial ground.
6	Management of burial ground	Allows Scottish Ministers to make regulations in connection with the management, regulation and control by a burial authority of burial grounds.
7	Right to erect a building	Provides the power to burial authorities to sell a right to erect a building or other structure on a burial ground.
17	Register of rights of burial	Ensures that burial authorities must continue to maintain a register of the sale of rights of burial.
20(1), (2)(a) and (b), (3), (4), (5) and (6)	Fees for burial	This section will be partially commenced to ensure that burial authorities can continue to set and charge fees for burial and will place a duty on burial authorities to publish their fees.

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 had the power to appoint Inspectors of Burial and Inspectors of Funeral Directors.

Scottish Ministers appointed an Inspector of Funeral Directors in April 2017.

There are no immediate plans to appoint an Inspector of Burial.

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

Section	Title	Description
89(1)(a) and (c)*	Appointment of Inspectors	Allows Scottish Ministers to appoint Inspectors of Burial and Inspectors of Funeral Directors.
93	Reports	Makes provision about the preparation and publication of reports.

*Section 89(1)(b) (Inspectors of Cremation) will be brought into force when the provisions regulation cremation at Part 2 are commenced later in 2018.

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:

Section	Subject matter
101	Acquisition of land
104(1)	Regulations and consultation requirements
110	Repeals
Schedule 2	Repeals Burial Grounds (Scotland) Act 1855 Where the reference the 1855 Act: Scottish Board of Health Act 1919 Church of Scotland (Property and Endowments) Act 1925 Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 Local Government etc. (Scotland) Act 1994

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.

2017/18:

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

2018/19:

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

2019 and beyond:

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