Regulatory model including Progressive Licensing scheme for Funeral Directors: report to Scottish Ministers

Regulation Considerations

27. The Burial and Cremation (Scotland) Act 2016 relating to Funeral Directors in summary provides for the appointment of an Inspector, an inspection and enforcement framework, a specific statutory Code of Practice and for the introduction of a scheme of licensing. The need for a base level of information of who is providing services for the deceased and bereaved is of paramount importance, not only to allow for effective inspection and enforcement, but also to protect the public from possible risk and to ensure the fundamental principles of public health are maintained. 

28. In thinking about the regulation of funeral business, a parallel can be drawn with the need for crematoria to adhere to environmental notification and compliance processes in advance of providing operational services to the public. This is discharged through the statutory relationships with the Scottish Environmental Protection Agency and the Inspector of Crematoria. There are also a number of similar parallels in the wider context of regulations and public experience – for example requirements that a letting agent or food business will register with, and be subject to inspection by, a local authority or government agency. 

29. It is considered a reasonable expectation therefore for businesses who provide funeral services to engage with a provision which requires, as a minimum: 

• a description of the legal business entity/ies, 
• leadership arrangements and identification of controlling parties, 
• location of premises and activities provided,
• a description of who is involved in providing those services, for example setting out the composition and numbers of the team, or a description of the formal and informal business relationships used to deliver the range of services or aspects of journey of care, and
• numbers of funerals delivered to the bereaved.  

30. Information gained from this requirement would allow for a risk based inspection programme to be developed, an enforcement policy to be pursued where necessary and a basis for better overall engagement with the sector to ensure compliance and adherence with quality standards and good practice. 

31. In determining whether this requirement is necessary and proportionate however, it is important to consider what the Act allows for in relation to the definition of a Funeral Director in this capacity, and whether this allows for a mechanism for this information to be sought. The view of the Inspector is that to understand fully the detail of the work of the sector and the extent of relationships and service activity, particularly at a time of significant change, it is necessary to design a minimum licensing requirement which allows not only the physical premises of the business to be licenced, but also the activity of the business to be accommodated within the definition and model. Clarification as to this definition is being sought by colleagues in the relevant Scottish Government team. 

32. It is also understood that a number of businesses who have physical locations out-with Scotland in terms of head office or branches will still carry out activities of support for the bereaved or care of the deceased within a Scottish geographical context such as collection, care and transport. In the view of the Inspector it is appropriate for levels of care and quality standards to be consistent, irrespective of the choice of the business headquarters as to where they are physically located, and any activity carried out within Scotland must meet the standards expected within Scotland. The Scottish public would no doubt have the same expectation, and this should be satisfied through the design of the licensing model.

33. This view has been formed as a number of business models, which are in some cases more linear, and less reliant on traditional premises-based services operate in Scotland. In exploring other models of licensing, there are similar aspects of business and activities which have been considered elsewhere for example the Civic Government (Scotland) Act 1982, and subsequent Order allows for the licensing of tattooist in Scotland by Local Authorities. This Order provides a useful basis for consideration in this case as it allows for a range of flexible service models to be licensed. (For reference, see Royal Environmental Health Institute of Scotland and Health Protection Scotland guidance).

34. It is acknowledged that the introduction of a licensing requirement and the subsequent design of the requisite model is a significant step, and whilst this could afford Ministers greater understanding and accountability from the sector, it may also have consequential impacts on businesses already located in the communities of Scotland, providing services at a time of great need. It is therefore the view of the Inspector that the concerted and committed programme of engagement is continued as this approach is developed further. 

35. This on-going engagement should also afford Ministers reassurance that any decision with this regard is taken from a fully informed perspective as to the potential opportunities and challenges. It is also acknowledged that there is rightly an active debate in Scotland around the costs of funerals for those who access them both pre and at need, and any determination with respect to the introduction of a licensing requirement will have a consequential cost implication. It is therefore an imperative of any engagement to ensure that this is consciously part of the discussion, and the recommendations of the Inspector take account of this consequence.  

36. In order to assess whether a licensing provision should be recommended and to understand the possible benefits, consequences and risks and also responding to information provided by colleagues in the sector, an assessment of licensing provision in Scotland and other countries has been undertaken with a summary table of information provided here for reference (Annex C).