Burial authorities, cremation authorities, and funeral directors - statutory inspection regime: consultation analysis

Executive Summary

Between 25 August and 17 November 2023 the Scottish Government undertook an online consultation on its proposals for an inspection regime under section 90 of the Burial and Cremation (Scotland) Act 2016 (‘the 2016 Act’). The consultation was comprised of 32 questions, and collected information in both survey and open-ended comment format. The analysis of responses was conducted in late 2023/early 2024.

The purpose of this consultation was to seek views on proposals for regulations for inspection of the funeral sector in Scotland, including burial authorities, cremation authorities, and funeral directors. The proposals contained within the consultation are an essential step in ensuring that a modern and comprehensive regulatory framework for the funeral sector in Scotland is realised.

The consultation received 32 responses (26 from organisations and six from individuals).

The consultation was published as part of a collection of four consultations relating to the content of various sets of regulations that are intended to be made under sections of the 2016 Act which have not yet been implemented. The other three consultations related to:

• Burial regulations
• Alkaline hydrolysis (an alternative to burial or cremation)
• Funeral director licensing regulations

Main Findings

Overall, there was support for the proposals for the intended inspection regime. Key points from the consultation responses are as follows:

• There was nearly unanimous agreement with the proposal to provide for both routine and ad-hoc inspections, as well as announced and unannounced ad-hoc inspections. However, additional comments received noted potential disruptions that unannounced ad-hoc inspections might cause, the impact this might have on bereaved families and the businesses themselves, or how this might not be an efficient use of inspector resources.
• There was majority support for a risk-based approach to determining frequency of inspections. Where respondents provided suggestions for how risk should be assessed, this included for example, the professional qualifications of staff, evidence of staff training or continuing professional development opportunities, and details of most recent trade body inspection.
• There was respondent support for linking inspections and funeral director licence renewal cycles, with comments focusing on how linking was an efficient way to approach this for both the organisations being inspected and the Inspectors.
• Mixed views were received regarding how larger funeral director business premises should be inspected, with regards to whether all premises should be inspected (Option A) or only a randomly selected percentage of premises (Option B). There was slightly more support for Option A, for which respondents made comments suggesting this option would have greater fairness, a more comprehensive approach to maintaining standards, and would better ensure public confidence in the sector. Comments related to support for Option B tended to centre on Option B offering a balance between what was feasible in terms of resources without affecting standards.
• Regarding proposals for Inspectors’ powers, the Scottish Government provided an updated list of equipment and items that may be examined by Inspectors during an inspection or investigation. Some respondents suggested adding certain items to the proposed list of items, including chemicals and other documentation such as complaints records.
• Respondents generally welcomed the proposal for Inspectors to be able to request interviews with staff of relevant bodies and the right for potential interviewees to refuse to be interviewed. Additional comments noted interviews would allow for inspections to be more comprehensive. However, several respondents raised issues related to safeguarding of those interviewed by the inspectors, especially those interviewees who are employed within a business.
• There was support for the Scottish Government’s proposal to not include in regulation powers for Inspectors to seize, detain, or remove equipment from relevant bodies. Additional respondent comments tended to centre on seizure, detention and removal being deemed unnecessary and impractical.
• A majority of respondents agreed that Inspectors should be able to issue an enforcement notice which requires equipment to be repaired or replaced. A majority of respondents also agreed that Inspectors should be able to issue an enforcement notice which prohibits a relevant body from using equipment until it is repaired or replaced.
• Over half of respondents agreed that 14 days is appropriate timescale to require a response from a relevant body to a draft inspection report developed by Inspectors.
• There was general support for the proposed processes for issuing and lifting enforcement notices and suspension notices, with some feedback that more clarity on the practicalities of this (e.g. timescales) and how impact on services and the bereaved would be minimised.
• Respondents were broadly supportive of the proposed appeal process for decisions made either by Inspectors or Scottish Ministers. Further comments were received regarding the need for clarity on the timeframe of appeal decisions, and a suggestion that a senior inspector review of an enforcement notice should occur automatically and not on request from the relevant body.
• The majority of respondents were supportive of the proposed approach to complaints. Additional comments received focused on ensuring there was coherence with existing complaints processes in local authorities, and about the practicalities of the complaints process.

Next Steps

Following this analysis of the consultation responses, the Scottish Government will further consider the proposals for the intended inspection regime in its development of inspection regulations. The results of this analysis will also be reviewed in conjunction with the responses received to the other three public consultations which were published in Autumn 2023.

The Scottish Government recognises that an inspection regime would introduce new requirements for the funeral sector to operate in Scotland, and that there remain important considerations for what implications this may have on the sector and the public. A full set of impact assessment screenings will be undertaken – and where appropriate full impact assessments will be completed - in parallel with the development of the draft inspection regulations. These will include development of thinking regarding the costs and benefits to relevant bodies in the funeral sector and to the public.

The intention is to develop the regulations with a view to laying them in the Scottish Parliament in time to align with the coming into force of the Funeral Director Code of Practice. It is noted that the Code is currently in a year-long grace period that was put in place to allow funeral directors to attain compliance before it comes into force on 1 March 2025. This was an accelerated timescale from the 18-month grace period originally proposed in the Code’s public consultation, however it complies with the Scottish Government’s Better Regulation agenda to allow businesses proportionate and appropriate opportunities to achieve full compliance with new regulatory requirements.

The Scottish Government is working at pace to fulfil the above intention, subject to parliamentary processes and approval. Further, the Scottish Government continues to progress work on how the proposed inspection regime would be brought into operation, including consideration of any new digital platforms, policies and procedures needed.