Statutory inspection of burial authorities, cremation authorities and funeral directors

Introduction

1. The Burial and Cremation (Scotland) Act 2016 (‘the 2016 Act’) received Royal Assent in April 2016. It provides a modern, comprehensive legislative framework for burial and cremation in Scotland. Many of the 2016 Act’s provisions are rooted in recommendations made by the Infant Cremation Commission, the National Cremation Investigation and the Burial and Cremation Review Group.

2. The 2016 Act gives Scottish Ministers the power to, amongst other things, establish an inspection regime for burial authorities, cremation authorities and funeral directors and to set up a licensing scheme for funeral director businesses. Key to this is the development of regulations and codes of practice which will be fundamental in ensuring minimum standards of care of the deceased. To promote compliance with the legal requirements within these regulations and codes, Scottish Ministers can appoint inspectors under section 89 of the 2016 Act as Inspectors of Burial, Cremation and Funeral Directors (‘Inspectors’).

3. Scottish Ministers first appointed the Inspector of Crematoria in March 2015.^[1] The Inspector was appointed under the Cremation (Scotland) Regulations 1935, which at that time was the most up-to-date legislation relating to cremation. In April 2019, following the implementation of the 2016 Act, the Inspector of Crematoria’s remit was widened to encompass the whole cremation process and was renamed ‘Inspector of Cremation’.

4. An Inspector of Funeral Directors was appointed in 2017 by Scottish Ministers (by virtue of section 89(1) of the 2016 Act) to review the funeral sector in Scotland, progressing recommendations by the National Cremation Investigation and fulfilling the recommendations of the Infant Cremation Commission.

5. In October 2020, the Inspector of Crematoria’s remit was widened to encompass the entire funeral sector (subsuming the remit of the Inspector of Funeral Directors), and an additional Inspector was appointed. From that time, there has been appointed a Senior Inspector of Burial, Cremation and Funeral Directors and an Inspector of Burial, Cremation and Funeral Directors.

6. Some parts of the 2016 Act have already been implemented. Notably, in 2019, Part 2 on cremation was commenced, following which the Cremation (Scotland) Regulations 2019 were made. These regulations took forward recommendations from the Infant Cremation Commission and National Cremation Investigation to implement improvements to the cremation process and the handling of ashes in Scotland.

7. The purpose of this consultation is to seek views on the implementation of regulations for inspection of burial authorities, cremation authorities, and funeral directors. As detailed below, a previous consultation on the proposed inspection regulations was held in 2017, and the funeral sector has been consulted as part of an Inspection Regulations Working Group which was convened in 2018.

8. This consultation is being published as part of a collection of consultations relating to the content of various sets of regulations that will be made under sections of the 2016 Act which have not yet been implemented. They are:

• Licensing regulations
• Burial regulations
• Alkaline hydrolysis (an alternative to burial or cremation)

9. All consultations in this collection will be available at this link on the Scottish Government Citizen Space website.

10. You are welcome to comment on all parts of this consultation or select only the parts and questions most relevant to you.

Inspection Regime for Burial Authorities, Cremation Authorities and Funeral Directors in Scotland

11. Section 90 of the 2016 Act provides Scottish Ministers with the power to develop regulations for the carrying out of inspections of burial grounds and burial authorities, crematoriums and cremation authorities, and funeral directors. These inspections would be conducted by inspectors appointed under section 89(1) of the 2016 Act.

12. In this consultation, burial authorities and burial grounds, cremation authorities and crematoriums, and funeral director businesses are referred to as ‘relevant bodies’.

13. The Scottish Government intends to use the powers provided in Section 90 of the 2016 Act to develop and implement inspection regulations. In this consultation we are seeking views on these proposed inspection regulations.

Rationale for the proposed inspection regulations

14. Inspection is an essential and core part of the regulatory responsibilities under Part 4 of the 2016 Act, under which we seek to improve standards and quality of funeral services in order to protect the deceased and the public in Scotland. It is central to our overall aim of increasing the credibility of, and confidence in, Scotland’s funeral sector.

15. The importance of inspection in the funeral sector has its roots in the Infant Cremation Commission. The Commission published their report in 2014, which examined the practice at that time regarding infant cremation and made recommendations for improvement (see recommendation 2.63), including the monitoring of work practices and standards at crematoriums. This led to the appointment of Scotland’s first Inspector of Crematoria in 2015.

16. The 2016 Act built on this and enables Scottish Ministers to appoint Inspectors under section 89 of the 2016 Act as Inspectors of Burial, Cremation and Funeral Directors (‘Inspectors’). As noted in the introduction, there is currently a Senior Inspector of Burial, Cremation and Funeral Directors and an Inspector of Burial, Cremation and Funeral Directors appointed by Scottish Ministers. The Inspectors are currently limited in their ability to conduct inspections or investigate complaints, and do not yet have any enforcement-related powers. The proposed inspection regulations will provide statutory powers for current and future Inspectors to carry out the functions required of them to contribute to the protection of the deceased and ensure minimum standards are being met in Scotland’s funeral sector.

Previous Public and Stakeholder Engagement

2017 Consultation on Inspection Regulations Proposals

17. A consultation on policy proposals for inspection regulations was first held in 2017, making this current consultation the second time the Scottish Government has publicly consulted on the proposed inspection regulations. The first consultation is available here.

18. The proposals at the time had been informed by the Parliamentary Bill process for the 2016 Act, stakeholder engagement and views of the then-Inspector of Crematoria. The 2017 inspection consultation asked for views on the following topics:

• frequency of routine inspections for burial authorities, cremation authorities and funeral director businesses
• types of inspection, including ad-hoc inspection, enquiry or investigation; specifically whether inspectors should be given powers to enter premises for this purpose,
• search and examination of premises including: contents, policies and procedures, training qualifications, documents and records, etc.
• seizure of equipment
• interviews with individual(s) involved in the delivery of services,
• approach to compliance and enforcement, including inspection reports, enforcement notices and suspension notices
• reviews and appeals against decisions of inspectors and decisions of Scottish Ministers

19. There were 36 responses to the 2017 consultation (31 of which permitted publication). The vast majority of responses to the 2017 consultation were received from the funeral sector (funeral directors, funeral director representatives and burial and cremation authorities). These responses were broadly supportive of the proposals set out in the 2017 consultation. Where comments raised issues or concerns these have been carefully considered and taken into account in the continuing development of proposals. More detailed results of the 2017 consultation are provided in individual sections in this consultation.

Inspection Regulations Working Group (2018-2019)

20. An Inspection Regulations Working Group was established in 2018 to help inform the development of the proposed inspection regime.

21. The Working Group met three times: December 2018, September 2019 and October 2019. The Group included representatives from:

• local authority burial and cremation authorities
• private burial and cremation authorities
• funeral director businesses
• funeral trade associations
• Inspector of Cremation (now Senior Inspector of Burial, Cremation and Funeral Directors)
• Scottish Government

22. We have taken time to work closely with stakeholders represented on the Working Group to understand how the funeral sector operates as a whole. This was with a view to creating a system of regulation that is proportionate, fit for purpose, holds industry to minimum standards, and ensures the utmost respect for the deceased.

23. While the Inspection Regulations Working Group is the most relevant Working Group for the proposed inspection regulations, in developing its current policy proposals for inspection the Scottish Government has also drawn learning from the Burial Regulations Working Group and Funeral Director Licensing Regulations Working Group. Please see the other consultations in this collection which are focused on the Scottish Government’s proposals for burial regulations and funeral director licensing regulations.

Rationale for Second Consultation on Inspection Regime

24. Views and feedback from respondents to the 2017 inspection consultation have been vital in shaping the proposals for the inspection regime. This consultation builds on the first one and is now seeking views on the detail of the proposed regulations.

25. We recognise that the questions in this consultation relate to specific issues on which we are seeking your views. We therefore invite respondents to provide any additional comments they wish in the box provided at the end of this consultation.

Development of a Funeral Director: Code of Practice as a key basis for inspection

26. A key outcome of the responses to the 2017 consultation highlighted that a clear, definitive inspection procedure was required so that those being inspected understood what they were being inspected against. Further, the Inspection Regulations Working Group emphasised there was a need for significantly greater detail about how inspectors would assess minimum standards for the sector, for example by using a Code of Practice.

27. The development and issuing of codes of practice are provided for in the 2016 Act:

• Section 21: Burial Authority: Code of Practice
• Section 64: Cremation Authority: Code of Practice
• Section 97: Funeral Director: Code of Practice

28. The Scottish Government has focused firstly on the development of a Funeral Director: Code of Practice under Section 97 of the 2016 Act. This focus reflected the fact that the Cremation (Scotland) Regulations were already in development (and came into force in April 2019), providing cremation-related standards with which the sector would need to comply. Further, the risks associated with funeral director businesses, in which the deceased are taken into their care and prepared for burial or cremation, combined with the lack of provision in the 2016 Act to ensure minimum standards of care, necessitated that the Scottish Government prioritise developing these minimum standards in a Code of Practice. A short life working group was established in 2017 to help inform the development of the draft Funeral Director Code of Practice.

29. The Scottish Government developed an initial draft of the Code, and undertook a public consultation on the draft between June and September 2019. The analysis report of the consultation was published in 2021. A set of small focus groups were also held in early 2021 with small, independent, rural, and non-traditional funeral director businesses to discuss the potential impact of the Code on their businesses. Additionally, in 2021 the Scottish Government undertook a series of discussions with islands-based funeral directors, to attain their views on the potential impact of the Code.

30. Following the consultation exercises, the draft Code was revised, discussed again with industry stakeholders, and published on the Scottish Government website. We intend to lay the draft Code in the Scottish Parliament, in accordance with section 97 of the 2016 Act, as soon as practically possible. If approved by Parliament, the Code will come into force and funeral directors will be required to comply with it.

31. Once the Code is issued it will be key to underpinning the statutory inspection of funeral directors in Scotland. If the intended inspection regulations (the subject of this consultation) are brought into force, funeral directors will be inspected to determine their compliance with the minimum standards set by the Code (as well as provisions of the 2016 Act, regulations made under the 2016 Act, and any conditions of licence).

Development of Codes of Practice for Burial Authorities and Cremation Authorities

32. In future, the Scottish Government will also develop and issue Codes of Practice for burial authorities and cremation authorities. Until these Codes are developed, any statutory inspections of burial authorities and cremation authorities will be against the standards set in the 2016 Act, the 2019 Regulations, and the forthcoming burial regulations (currently under development, see collection of consultations on Scottish Government website).