The Registration of Births, Deaths and Marriages (Scotland) Act 1965 (Prohibition on Disposal of a Body without Authorisation) Amendment Regulations 2024: business and regulatory impact assessment

1. Purpose and Intended Effect

This Business and Regulatory Impact Assessment (BRIA) is concerned with amendments to Regulations 4 and 5 of The Registration of Births, Deaths and Marriages (Scotland) Act 1965 (Prohibition on Disposal of a Body without Authorisation) Regulations 2015 (“the 2015 Authorisation Regulations”). For the purpose of this paper, the regulations will be referred to as the “2024 amendment regulations”. The amendments ensure that a body can be buried or cremated in Scotland, where the death occurred in England, Wales or Northern Ireland and the coroner has authorised release of the body for its burial or cremation in cases where the death has not been registered. This occurs where the death is subject to coronial investigation or further enquiries.

In such instances, where the death cannot be registered in those jurisdictions, authorisation can be provided by the coroner to allow burial or cremation to proceed. However, under existing Scottish legislation, burial or cremation cannot proceed without registration. These regulations address this by amending the documentation that can be accepted to allow a burial or cremation to proceed where the coroner has authorised the burial or cremation.

1.1 Background

In Scotland, since 2015, all deaths must be registered before the deceased can be buried or cremated. Registration is required even where the Crown Office and Procurator Fiscal Service (COPFS) is investigating the death. It is an offence to dispose of a body without the appropriate certificates or other documentation under section 27A(1) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (“the 1965 Act”), although there is a defence in s27A(4) if there is a reasonable excuse for the interment, cremation or disposal of a body without the certificates or other documentation specified.

The relevant certificates required for disposal of a body are set out in the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (Prohibition on Disposal of a Body without Authorisation) Regulations 2015. (“the 2015 Authorisation Regulations”).

Where a death occurs in Scotland, regulation 3 of the 2015 Authorisation Regulations states that disposition of a body in Scotland requires “a certificate given by a district registrar for a registration district under section 21(4) (still-births) or section 27(1) (free certificate of registration of death) of the 1965 Act”. These certificates are prescribed in schedule 2 and schedule 3 of The Registration of Births, Still-births, Deaths and Marriages (Prescription of Forms) (Scotland) amendment Regulations 2015 (“the 2015 Prescription of Forms Regulations”)

For adults and children, the relevant certificate is the “Certificate of Registration of Death” or “Form 14”. For stillborn babies, it is the “Certificate of Registration of Stillbirth” or “Form 8”.

Where a death occurs in England or Wales, but the body is to be buried or cremated in Scotland, regulation 4 of the 2015 Authorisation Regulations gives the following requirements:

(a) a certificate equivalent to that given by a district registrar for a registration district under section 21(4) or 27(1) of the 1965 Act; and

(b) (i) an acknowledgement by a Coroner that notice of the intention to remove the body out of England or Wales has been received by the Coroner together with intimation that the Coroner does not intend to hold an inquest; or

(ii) a certificate given by a Coroner in accordance with regulations made in pursuance of section 7 of the Cremation Act 1902.

Where death occurs in Northern Ireland, but the body is to be buried or cremated in Scotland, regulation 5 of the 2015 Authorisation Regulations gives the following requirements:

(a) an equivalent certificate to that given by a district registrar for a registration district under section 21(4) or 27(1) of the 1965 Act; and

(b) a Coroner’s certificate for removal of the body out of Northern Ireland.

All nations of the UK have death certification systems in place to ensure robust monitoring and oversight of deaths and body disposal. In most respects, these procedures align and repatriation of bodies between UK nations is straightforward. However, where coronial investigation occurs, differences have come to light.

As noted above, a burial or cremation in Scotland always requires full registration of death. However, in England, Wales and Northern Ireland, a coroner can release a body for burial or cremation whilst an inquest (or investigation) is ongoing, prior to the death being registered. In England and Wales and Northern Ireland the coroner will authorise removal of the body from their jurisdiction and will also authorise the burial or cremation.

In England, Wales and Northern Ireland, the authorisation for burial or cremation is sufficient for a burial or cremation to take place. However, in Scotland, because a death must be fully registered, an authorisation for burial or cremation would not be sufficient on its own for a burial or cremation to proceed. As a result, where a death occurs in any other UK nation, burial or cremation can only proceed once the death is registered in the relevant jurisdiction. This can add significant delay if a burial or cremation is sought in Scotland (in England, for example, the death registration occurs after coroner’s inquest is concluded and that takes 31.5 weeks on average^[1]).

This leaves the bereaved with two options: either wait a potentially long time for the inquest to complete and the death to be registered before arranging the burial or cremation in Scotland, or carry out the burial or cremation in another part of the UK. This latter option is problematic for a number of reasons. For example, it may be a far distance from where deceased’s family and friends are located for the purpose of the funeral service or there may be an existing pre-purchased burial plot in Scotland.

1.2 Scope and Context

If brought into force, the 2024 amendment regulations will apply in cases where a body is repatriated to Scotland from another part of the UK and where the coroner has authorised its burial or cremation. As such, it will impact all funeral directors and burial and cremation authorities in Scotland. In such situations.

The changes made will be statutory, but will only impact the very specific situations detailed above.

1.2.1 Regulatory amendments

Given the potential distress caused to loved ones by the procedural differences across the UK, and the narrow scope of the amendments, the Scottish Government intends to expedite the process for bringing into force these regulations.

The regulations have been developed with due regard to the Scottish Regulator’s Strategic Code of Practice. By securing alignment across the UK, they also help fulfil the principles of better regulation, namely that regulation should be transparent, consistent, proportionate, targeted and accountable.

The Scottish Government has undertaken consultation with the funeral sector, which includes funeral directors, burial authorities, cremation authorities and representative trade associations, to ensure that the impact of the regulations are understood, desirable and fit for purpose. The regulations affect only this sector.

The regulations have also been developed with due regard to the New Deal for Business and the recommendations set out by this Group.

1.3 Why are the regulations being laid now?

Although Scotland’s death certification requirements have been in place since 2015, recent regulatory changes in England and Wales have brought to light that it was not clear to all in the funeral sector that some certificates were not accepted documentation in Scotland. This increased clarity in the law has now resulted in a number of cases where families have been unable to arrange burial or cremation.

It is therefore clear that, where a death in another UK jurisdiction is under coronial investigation, the differences in documentation accepted across Scotland and the rest of the UK has the potential to cause unnecessary distress to families where a burial or cremation is sought in Scotland. The experience in England, Wales and Northern Ireland indicates that accepting the authorisation of burial or cremation does not lessen the robust system of death certification in those jurisdictions. This is supported by consultation with trade bodies. Laying regulations now therefore brings Scotland into alignment with the rest of the UK. It will enable a smooth repatriation and burial or cremation of bodies whilst maintaining Scotland’s robust system of monitoring and oversight.

1.4 Objective

The objective of the regulations is to ensure that the documentation provided by coroners permitting release of the body for burial and cremation where a death is under investigation in other UK jurisdictions will be sufficient to allow a burial or cremation to proceed in Scotland. Crucially, the regulations will not impact the requirement that deaths occurring in Scotland must be registered before a burial or cremation can proceed.

The objectives of the 2024 amendment regulations are aligned with Scotland’s National Performance Framework, which is underpinned by values describing a society characterised by openness and transparency, in which people and organisations respect the rule of law, and treat each other with kindness, dignity and compassion.

1.5 Rationale for Government Intervention

As set out above, the documentation that is sufficient to allow burial or cremation to proceed is set out in 2015 Authorisation Regulations. Only legislation laid in the Scottish Parliament can amend this. Failure to do so could result in families experiencing significant delay and expense before they can bury or cremate loved ones in some circumstances. This could lead to significant distress at an already difficult time. As noted above, the experience of other UK jurisdictions suggests there will be no adverse consequences to expanding the acceptable documentation. Failure to make this change would therefore present an unnecessary barrier to families.