Statutory inspection of burial authorities, cremation authorities and funeral directors

Section 10 - Reviews and Appeals

168. The Scottish Government is mindful that a robust appeals process is an important component of the proposed inspection regime. Ensuring there are opportunities for authorities or businesses to appeal decisions by Inspectors or Ministers is crucial for ensuring there are checks-and-balances to the regime, and these bodies have access to due justice. This is particularly important given the potential impact that certain decisions may have on an authority or business’s ability to operate successfully – both in terms of serving their clients, and to providing a livelihood for themselves.

169. The 2016 Act provides for Scottish Ministers to set out the process for reviews of, or appeals against, decisions that inspectors have made under the proposed inspection regulations (i.e. appeals against enforcement notices). The 2016 Act also enables Scottish Ministers to include in the proposed regulations a process for appeals against the decision of Scottish Ministers to suspend the operation of activities (i.e. suspension notices) or to suspend or revoke licences.

Previous consultation

170. This issue was discussed in the 2017 consultation. At that time, the Scottish Government proposed that a review of or an appeal against a decision made by inspectors applies specifically where an inspector has taken a decision to issue an enforcement notice. At that time, we suggested that where a relevant body wished to challenge an inspector’s decision to serve an enforcement notice, that relevant body could request to Scottish Ministers that the decision is reviewed by an independent person. It would have been for Scottish Ministers to appoint that independent person, and the relevant body would have had the opportunity to put their case to the reviewer in writing and in person. They could also request that the review was made public. Once the review was completed, we suggested that Scottish Ministers would make a decision to either confirm, amend, or withdraw the enforcement notice, and that their decision would be final. The 2017 consultation did not request comments on this proposed process at that time, however we ask for views on the current Scottish Government proposal below.

171. This process was also discussed with the Inspection Regulations Working Group in October 2019. The Group suggested an appeal process that would be more administrative than judicial – that the authority or business could challenge the content of an enforcement notice, and these representations would be considered first by the issuing Inspector, and then by a Senior Inspector. The Group requested further consideration of this matter by Scottish Government.

Scottish Government position

172. The Scottish Government’s current proposal has been revised following further consideration of the practicalities of appeal processes, due to the provisions in the 2016 Act, and in recognition of how the appeals process for decisions about funeral director businesses will interact with the proposed licensing regime.

173. Overall, we still intend that a relevant body be empowered in the regulations to appeal a decision by an Inspector or Scottish Ministers. This includes a decision by an Inspector to issue an enforcement notice on any of those bodies. It would also include, for example, a decision by Scottish Ministers to (a) issue a suspension notice on to a burial authority or cremation authority, (b) suspend or revoke the licence of a funeral director business.

Appeals of Inspector Decisions

174. The detail of our current proposal for appeals of inspector decisions is as follows.

175. A relevant body who has received an enforcement notice can request that the decision is reviewed. This request would need to be made within a set number of days of receipt of the notice. The Scottish Government now proposes that 21 days would be appropriate, because this provides a reasonable time given the likely needs of bodies to prepare an appeal. Additionally, this aligns with timings used by the Sheriff Court when considering appeals. We are not currently proposing to allow this deadline to be extended, as this would create delays to the process, which, if the enforcement notice is upheld, is meant to improve compliance with minimum standards for the protection of the deceased and the public.

176. It is now envisaged that the decision will, in the first instance, be internally reviewed by a more Senior Inspector. This would involve examining the evidence used to make the original decision (e.g. inspection reports), and possibly seeking clarification on any details from the relevant body or the relevant Inspector. If clarification of details is received from the Inspector, that clarification would be circulated to the relevant body (and vice versa) so that all parties have an opportunity to see and respond (within a set timeframe, e.g. 7 days).

177. We do not intend that, during this process, the Inspector or Senior Inspector will seek new, additional information in order to justify the Inspector’s original decision. It may however involve receiving new information from the body to support their challenge of the decision, which would then be taken into account in the review of the decision.

178. The Senior Inspector would then, on the basis of evidence, decide to uphold, modify, or quash the decision. If the decision was made by the Senior Inspector, then the decision would go to Ministers for review.

179. If the body does not agree with the outcome of the review, the decision may be further appealed to Scottish Ministers. Again, this would involve examining the evidence used to make the original decision (e.g. inspection reports), and possibly seeking clarification on details from the relevant body or Inspectors.

180. Similar to the consultation section on suspension notices, the above proposed process relies on written evidence. Below we have asked for views regarding whether an opportunity for oral representation by the relevant body to a representative of the Scottish Ministers should be included in this process. If so, it is likely that this representation could be triggered by either the body or Scottish Ministers.

181. In reference to the evidence provided, Scottish Ministers will decide the appeal, and either quash the enforcement notice, modify the notice, or affirm the notice in its current form.

182. If the body further disagrees with the decision of Scottish Ministers, we now propose that the decision can be further appealed to the Sheriff Court. This must be done within a set number of days of the initial review decision (21 days). As Court policy dictates, while an appeal is being considered the relevant body may decide to withdraw their appeal.

183. It is intended that an appeal to the Sheriff Court will be a full appeal, allowing a full rehearing, with the Court deciding to either confirm, amend, or quash the enforcement notice. Any onward appeals would be determined by Court procedures.

184. It is proposed that whilst an appeal is ongoing, an enforcement notice need not be complied with pending the decision or withdrawal of the appeal.

Appeals of Scottish Minister Decisions

186. The details of our current proposal for appeals of Scottish Minister decisions to suspend the operation of activities, or a funeral director licence, are as follows.

187. Decisions by Scottish Ministers would not initially be subject to a review by Inspectors, since Inspectors are appointed by Ministers. Instead, where Scottish Ministers make a decision to suspend part or all operations of a burial or cremation authority, if the relevant body disagrees with the decision of Scottish Ministers this decision could be appealed to the Sheriff Court. This must be done within a set number of days of the initial review decision (21 days). The relevant body is permitted to withdraw their appeal while an appeal is being considered.

188. It is intended that an appeal to the Sheriff Court will be a full appeal, allowing a full hearing, with the Court deciding to either confirm, amend, or quash the suspension decision. Any onward appeals would be determined by Court rules.

189. Figure 2 below depicts the proposed process, including the initial process of an Inspector recommending suspension to Scottish Minsters:

190. We note that appeals of decisions by Scottish Ministers to suspend or revoke funeral director licences may also occur, and that appeals of those decisions would follow the same process as set out in Figure 2.

Question 29 - Please provide any views on the appeal process for decisions made by Inspectors.

Question 30 - Please provide any views on the appeal process for decisions made by Scottish Ministers.