Statutory inspection of burial authorities, cremation authorities and funeral directors

Section 8 - Enforcement Notices

138. Section 90 the 2016 Act provides powers for Scottish Ministers to make regulations which set out the steps that may be taken by inspectors for the purpose of ensuring compliance with set standards (as contained in the 2016 Act, regulations, Codes of Practice and conditions of licence), and steps they may take to enforce such requirements or conditions. Section 90(3)(g) provides powers for the procedure to be followed, and timescales applicable, in relation to such steps. Finally, section 90(3)(k) provides for regulations to include sanctions inspectors may impose in relation to [their] investigations of complaints.

139. These powers recognise that in certain circumstances Inspectors may observe non-compliance with the set standards and may be required to take steps to enforce compliance with statutory requirements.

Previous consultation

140. It was proposed in the 2017 consultation that Inspectors would have powers to issue ‘enforcement notices’ on burial authorities, cremation authorities and funeral director businesses. This is a legal notice that must be complied with. The 2017 consultation noted that an enforcement notice could be issued where:

• an Inspector has undertaken an inspection, has found non-compliance with conditions or requirements set out in the relevant Code of Practice, legislation or licence and has issued an inspection report but deems that no, or insufficient progress is being made towards remedying the non-compliance, or
• an Inspector has entered premises for the purpose of an inspection or investigation and has found non-compliance with such requirements or conditions that are causing harm or posing risk and require immediate action

141. The below text and consultation questions focus on the proposed use of ‘enforcement notices'. We asked for public views about enforcement notices in the 2017 consultation, although views were requested as part of a broader question about inspection reports and enforcement. While responses indicated general agreement with the Scottish Government’s proposals, comments asked for more information about the inspection regime and any associated enforcement action, including timescales for compliance, and that compliance must be measured against clear, achievable requirements.

142. The Inspection Regulations Working Group in October 2019 discussed the issue of enforcement notices. The Group noted that an approach which uses enforcement notices when significant non-compliance has been identified, and where enforcement notices would be published once agreed as being factually correct, would be appropriate. The Group did ask for greater clarity on: whether an enforcement notice would be withdrawn or suspended if it were appealed; whether there would be a requirement to display enforcement notices in every branch of an authority or business (if multi-premised); and who an enforcement notice would be ‘served on’.

Scottish Government position

143. We intend that the proposed inspection regulations should provide powers for Inspectors to issue enforcement notices on relevant bodies.

144. It is intended that enforcement notices will be made public to ensure that bereaved people planning to engage a relevant body are aware of their non-compliance with set standards. It is intended that the enforcement notice will be physically posted at the relevant premises and a notice will be posted on the relevant webpage of the Scottish Government website.

145. It is also proposed that an enforcement notice should specify the following:

• the provisions of the Act/regulations/codes of practice which are being contravened
• the reasons why the inspector is of the opinion that contravention is occurring
• the requirement that the authority/business must remedy the contravention, and the actions it should take
• the period allowed for compliance, set by the inspectors, depending on circumstances
• the date on which the notice will take effect
• the sanction for not complying with the notice (e.g. possible suspension notices for burial authorities or cremation authorities, or licence suspension or revocation for funeral director businesses)

146. We would welcome views on any additional information that may be needed by authorities, businesses, or the public.

Issuing of an enforcement notice

147. For a burial authority or cremation authority it is intended that an enforcement notice would be issued to the manager of the premises (via registered post). For a funeral director business an enforcement notice would be issued (via registered post) simultaneously to the licence holder (owner) and the proposed ‘compliance officer’ (see licensing consultation) using contact details provided on the licence application or renewal application (it will be the responsibility of the business to keep these details up to date with the licensing authority). It is intended that the notice would be valid even if only one party receives it. In any of these circumstances, when issuing an enforcement notice the Inspector would notify Scottish Ministers for their awareness.

148. Enforcement notices would be subject to appeal (see section on appeals below). If an appeal is brought the requirement in the enforcement notice need not be complied with pending the decision on the appeal.

Removal of an enforcement notice

149. The regulations will set out a mechanism for removing the enforcement notice. It is intended that it would require the submitting of evidence by the relevant body to Inspectors of how compliance concerns have been addressed and an inspection to verify the changes have indeed taken place. If an Inspector is satisfied that the changes are sufficient and the relevant body is now compliant with set standards they can formally lift the enforcement notice. This would likely involve alerting Scottish Ministers of the decision, formally communicating (electronically) to the relevant person that the enforcement notice has been lifted and can be immediately removed from the physical premises and removing any notice from the Scottish Government website. We welcome views on this proposal.

Question 21 - Please provide comments on the proposed content of enforcement notices.

Question 22 - Please provide comments on the proposed approach to lifting enforcement notices.

Question 23 - Please provide any other comments on the Scottish Government’s maintained proposal to provide in regulations power for Inspectors to issue enforcement notices