Statutory inspection of burial authorities, cremation authorities and funeral directors

Overview of Proposed Inspection Regime

33. It is intended that the inspection regulations will be developed as provided for in Part4 of the 2016 Act, and will supplement the basic structure for inspection which is provided in the 2016 Act. The overall intention, therefore, is for the inspection regulations to provide a detailed framework for inspection, investigations, enforcement and appeals.

34. The following is a high-level description of the proposed inspection regime to be developed. Please note that many of the topics below are the subject of questions within this consultation.

A) Inspections

35. We intend that the inspection regime will provide for the carrying out of inspections of relevant bodies by Inspectors. Inspectors will be Ministerial Appointees, who will be recruited through open competition. Given that the proposed inspection regime will be the first statutory regime in the UK, specific professional experience in the funeral sector by Inspectors will not be mandatory. People appointed to be Inspectors will receive training in order to carry out their functions.

36. It is expected that all funeral director businesses and all cremation authorities/ crematoriums operating in Scotland will be routinely inspected. For the burial sector, it is intended that routine inspection will focus on inspecting burial authorities, and not burial grounds.^[2] This is because the cost and feasibility of inspecting the very high estimated number of burial grounds would be prohibitive.^[3] Our view is that routine inspection of burial authorities responsible for burial grounds is a practical and cost-efficient approach.

37. When the proposed inspection regulations come into force, Inspectors will inspect relevant bodies against the following requirements:

• Provisions of the Burial and Cremation (Scotland) 2016 Act
• Cremation (Scotland) Regulations 2019
• Funeral Director: Code of Practice (discussed above)
• Relevant funeral director licence conditions^[4]
• Burial regulations (see burial consultation)

38. In future, and as set out earlier, the Scottish Government intends to develop a Burial Authority: Code of Practice (section 21 of 2016 Act), and a Cremation Authority: Code of Practice (section 64 of 2016 Act), against which Inspectors will also be able to conduct inspections.

39. When carrying out an inspection (or investigation, see below), Inspectors will, if authorised by the Scottish Ministers, have powers to enter the premises they will be inspecting for the purposes of carrying out their Inspector functions.^[5] Inspectors will only be permitted to exercise this power of entry for the purposes of carrying out any of their Inspector functions, or ascertaining whether an offence under the 2016 Act has been or is being committed. It is anticipated that the powers of entry will only need to be used if a relevant authority refuses entry to an Inspector voluntarily. The Inspector must only use their powers of entry at a reasonable hour, and it is our intention that they will do this with respect to any bereaved present.

40. During inspections, Inspectors may access, examine, or observe documents, equipment or other items which are relevant to their assessment of the relevant body’s compliance. They may also engage in discussions with staff, third party contractors or clients of the relevant body in order to enquire about processes/ procedures, or to gather further information to assist their inspection.

41. We intend that the regime will set out that Inspectors may carry out both routine and ad-hoc inspections. Routine inspections would happen at a frequency based on assessments of risk by Inspectors. This proposed approach is meant to provide necessary flexibility; firstly for Inspectors to be able to target finite resources appropriately; and secondly, to allow relevant bodies that consistently demonstrate good practice and compliance with set standards to benefit from reduced inspections, whilst ensuring the public can be confident that higher risk bodies are being inspected more frequently. Ad-hoc inspections could occur on an as-needed basis (e.g. following a complaint or other new evidence emerging).

42. Inspectors will be required to develop an ‘inspection report’ after inspecting a relevant body (after both routine and ad-hoc inspections). This report is intended to be used to identify areas where relevant bodies can improve compliance with relevant legislation, codes of practice, or conditions of licence.

43. Once a report is written, we intend to allow the relevant body to check it for factual accuracy. It is the Scottish Government’s intention to then publish inspection reports. Where recommendations have been made for improving compliance, it will be expected that relevant bodies will seek to make those improvements. If necessary, where there has been a refusal or persistent failure to improve compliance, or a serious instance of non-compliance, the evidence in these reports will be used to inform possible enforcement action (detailed below).

B) Complaint Investigations

44. We intend that inspectors will be able to conduct investigations into complaints. It is envisaged that such an investigation would likely involve an ad-hoc inspection (and a corresponding inspection report) and discussion(s) with staff of the relevant body. We intend that inspectors would write a brief ‘complaint report’ after any investigation, detailing their findings, conclusions, and any actions taken or recommended. It is also intended that Inspectors would be empowered, following an investigation, to impose sanctions on the relevant body, similar to how sanctions could be imposed following an inspection. Potential sanctions would be the same enforcement measures as those which could be imposed following discovery of non-compliance through routine inspections, and are described below in ‘enforcement’. It is not currently proposed the inspectors will have any additional powers in relation to responding to complaints.

C) Enforcement

45. The Scottish Government recognises that burial authorities, cremation authorities and funeral director businesses in Scotland provide important, high-quality services to the bereaved. We are aware, however, that poor practices are sometimes carried out by a small minority.

46. Where evidence of poor practice exists and non-compliance is demonstrated (and captured in inspection reports), the Scottish Government is presently seeking an approach where Inspectors first take an ‘improvement approach’ with the relevant body. This would precede any formal enforcement actions being taken. Such an improvement approach may include, for example, the following:

• Discussion(s) between representatives of the relevant body and the Inspector, so areas for improvement may be identified and remedies proposed. This would also provide an opportunity for the relevant body to ask questions of the Inspector,
• Signposting by the Inspector of further resource the relevant body may find useful to support their improvement and remedying of any issues,
• Linking relevant bodies to share best practice, and
• Any other support to the relevant body, to facilitate progress on key improvements within agreed timescales.

47. If an improvement approach is unsuccessful in getting the relevant body to improve compliance, it is intended that the inspection regulations will provide for enforcement actions that Inspectors and Scottish Ministers can take.

48. In terms of this enforcement action, the following is envisaged:

• Inspector issues an ‘enforcement notice’: This would be a legal notice which must be complied with. An enforcement notice can be issued where, for example, an Inspector has undertaken an inspection, has found failings and has issued an inspection report but deems that no, or insufficient, progress is being made towards remedying such failings within set timescales (with timescales to be determined on a case-by-case basis). It is intended that enforcement notices will be made public, for example by posting a physical notice at the relevant premises of a burial authority, cremation authority or funeral director business. This is so the public are aware of the presence of non-compliance with set standards.
• For burial authorities or cremation authorities: Inspector recommends to Scottish Ministers that they suspend the operation of activities in these relevant bodies. The 2016 Act specifies that it must be Scottish Ministers who make this decision. This may follow where the Inspector finds serious non-compliance^[6] or where there has been little or no action to address concerns, for example, by failing to comply with an enforcement notice. Scottish Ministers may then decide whether to suspend the operation of some or all activities of the relevant body. Similar to enforcement notices, it is intended that suspension notices will be made public, so the public are aware of the presence of non-compliance with set standards.
• For funeral director businesses: Inspector recommends the suspension or revocation of a funeral director business licence to Scottish Ministers. The 2016 Act specifies that it must be Scottish Ministers who make this decision, when the decision is recommended by Inspectors. This may follow where the Inspector finds serious non-compliance or where there has been little or no action to address concerns, for example, by failing to comply with an enforcement notice. Scottish Ministers will then decide whether to suspend a licence, or in even more extreme circumstances, revoke a licence. Please see the licensing consultation for more detail. It is intended that any suspension and revocation of licence will be made public.

49. Processes for how an enforcement notice, suspension of activities, or suspension of licence^[7] can be lifted will be implemented.

D) Appeals

50. It is intended that relevant bodies will have a right to request a review of, or seek an appeal against, decisions by Inspectors or Scottish Ministers which impact their operations. The Scottish Government intends for the inspection regime to allow for relevant bodies to challenge these decisions through an appeals process.