Contents
- Attendance
- sportscotland
- Subordinate Legislation
Subordinate Legislation
Cremation (Scotland) Regulations 2019 [Draft]
The second item on the agenda is consideration of an instrument that is subject to affirmative procedure: the draft Cremation (Scotland) Regulations 2019. As usual with such instruments, we will hear from the minister and his officials, then there will be an opportunity to ask questions on issues arising from the regulations. I welcome to the committee the Minister for Public Health, Sport and Wellbeing, Joe FitzPatrick. I also welcome Robert Swanson QPM, who is Her Majesty’s inspector of crematoria for Scotland; Johanna Irvine from the Scottish Government’s legal directorate; and Cheryl Paris from the burial and cremation team at the Scottish Government.
I invite the minister to make an opening statement.
I am delighted to join you to consider the draft Cremation (Scotland) Regulations 2019, which will put in place a much-improved framework for cremation in Scotland and introduce new application forms for those applying for a cremation.
For most people, the death of a loved one is one of the most difficult experiences that they will ever face. Grief impacts on each of us differently, arousing different emotions and affecting the way in which we make decisions. It is crucial, therefore, that when a person dies, each agency or organisation involved at the time ensures that it is respectful and sensitive to the wishes of the bereaved and that it maintains the dignity of the deceased at all times.
In 2017, approximately 65 per cent of all Scottish funerals were cremations. That percentage has been steadily increasing and is expected to rise further in future years. Therefore, cremation authorities and their staff have an increasingly crucial role to play in the funeral market and in supporting the bereaved at a very difficult time.
In 2014, following an examination of practices relating to the cremation of infants in Scotland, Lord Bonomy published his recommendations for the future. He noted that while the work of the infant cremation commission was confined to the cremation of babies and infants, his investigation and recommendations might have more general implications for older children and adults. That has proved to be correct, and his recommendations, as well as those made by Dame Elish Angiolini’s national cremation investigation, will in part be implemented by the regulations under consideration.
The regulations will standardise cremation practices and put in place clear and consistent processes for all cremations. They introduce new requirements on cremation authorities that are specifically designed to prevent the unacceptable practices that we have seen in the past. Failure to comply with those requirements is an offence under the Burial and Cremation (Scotland) Act 2016 and, for the very first time, we will set out procedures and timescales for the handling and dispersal of ashes.
In line with Lord Bonomy’s recommendations, the regulations increase record retention timescales from 15 years to 50 years, guaranteeing future traceability for families. They will require cremation authorities to create and publish management plans, which will improve transparency for the public, and to keep accurate and up-to-date registers of each and every cremation that takes place. Each of the 30 crematoria that operate in Scotland will be inspected annually against those regulations by our inspector, Robert Swanson QPM.
The regulations also introduce new application forms that distinguish between different types of cremation. The forms have been deliberately designed in that way to be sensitive to the individual circumstances. That was a recommendation of Lord Bonomy, and his view was supported by the Local Government and Regeneration Committee during the passage of the Burial and Cremation (Scotland) Bill. Importantly, each form contains a separate section on ashes, which means that a formal record of the applicant’s wishes will be created, thereby introducing an additional safeguard for the applicant. The regulations and forms were formally consulted on in 2017. Forty responses were received, all of which supported the proposed changes.
Since the consultation, we have engaged extensively with the cremation authorities and others in the industry, and our approach has been welcomed by trade associations and business alike. We have produced comprehensive Government guidance for the industry and we will produce similarly comprehensive guidance for the general public. We are also developing training materials for cremation authorities and funeral directors to ensure that they are adequately equipped to support members of the public.
I hope that members agree that the regulations will, with Parliament’s support, bring about a positive change in an important industry that concerns us all. I look forward to the regulations taking effect from 4 April.
Thank you. I have one or two questions, as do some of my colleagues.
You talked about procedures and timescales. Clearly, some thought will have gone into the timescales that will apply. How were those timescales arrived at? There is an implication that cremation authorities and funeral directors may operate longer timescales than the minimum that you have set. What is the level of expectation, and how will that be communicated?
You are absolutely right that the timescales are minimums. The timescales were arrived at after discussion and they are roughly the average of what is in place now. That means that, in some cases, much shorter timescales are currently adhered to. The changes will give a degree of continuity across the country and will ensure that no authority goes below the levels that are set out in the regulations. The timescales are the average, but it is likely that some crematoria will decide to go beyond the minimum.
What will the processes be for contacting relatives to seek directions as to what should happen next, and what will happen if there is no response to those contacts?
The flow chart that we have provided in the guidance details what happens at each stage. There is an initial period of four weeks and then a further four weeks. Obviously, it depends on which part of the pathway is being followed. In general, the communication will normally be sent by recorded delivery, but it can be sent by email if someone has indicated that that is their preferred method of communication.
I ask Cheryl Paris whether there is anything to add.
That is just about everything. At the moment, the letter is usually sent by recorded delivery, to ensure that it is properly received by the applicant. If the applicant decides that they want to be contacted by electronic means, they can let the cremation authority or funeral director know. As long as it is done in writing and there is a record that the emails have been sent, that is good enough under the regulations.
The implication of the flow chart is that, if there is no response, it will be assumed that there is no intention to collect the ashes. Will there be a way of confirming that impression, or will that simply be the procedure that crematoria and funeral directors will go through?
There is an additional period of four weeks. To a degree, there is an issue about how many times an authority should keep trying and whether they would hold ashes for ever. It is a question of getting a degree of consistency in what happens before ashes are scattered. The ashes are not lost—obviously, the information is recorded so that, if for some reason, 20 years down the line somebody wanted to pay their respects to a loved one with whom they had lost contact, they would be able to get a record of where the ashes were scattered. That is important.
Yes, but there is not an additional fallback. One of the issues that arose in the cases that we know about was that, in some cases, families were very distressed and did not respond to official communications in a timely manner. Clearly, there is a continuing risk that that will happen, but you are saying that there comes a point when the process can no longer be continued.
That is why there is not just the four-week period. There are other checks.
It is worth mentioning that the authorities can deal only with the applicant, and that there are good reasons for that, especially in cases of pregnancy loss and suchlike. You cannot go knocking on neighbours’ doors and so on to see about something that is confidential in the extreme. That restricts the process.
So there is a means of communication, and people stick to it.
Yes. The new forms provide extra information. In the past, emails did not exist, so that was a line of communication that crematoria did not have. They can use the telephone to pass on a message and ask people to contact them, and they have the home address, so there are now three ways of communicating with people.
11:30
Minister, thank you for your opening remarks. Will you talk about where we are on the support that is offered to the families who were caught up in the baby ashes scandal?
Are you asking about on-going support?
Yes.
At the time, the Scottish Government gave money to agencies that could support families who had come forward and wanted counselling or other support. I have not heard of families looking for new support for some time, but I know that some families are receiving on-going support. For example, Stillbirth and Neonatal Death Society Lothians continues to support some families. I do not know whether the demand is as high as it was initially, but support is still there if families need it.
In respect of a stillbirth on or before the 24-weeks cut-off point, the schedules to the regulations set out the forms that are used—they are clearer than I thought they were. By using form A3 or form A4, the mother or a nominated individual, or the hospital, respectively, can take charge of the process. Is it entirely left to the family to decide whether to ask the hospital to deal with the disposal of the remains or to take the matter into their care?
That is an important point, and it is why it is important that we have the appropriate forms and registration processes for different circumstances. I will bring in Cheryl Paris on that.
It absolutely is for the family to decide. When they are in hospital, they will have a conversation with the hospital staff, and they can decide at that point—or afterwards, because we do not want to put them under time pressure—whether they want to arrange the funeral themselves, as I think that a lot of people do after a stillbirth. If they want the hospital to arrange an individual burial or cremation, they can ask the hospital to do so.
Can they come back after a time and say, “We would like the ashes”?
Yes; if there is to be an individual cremation, they can say up front that they would like the ashes.
There is a part about the ashes on all the forms.
A grieving family might say, at what is obviously a very difficult time, “I just want you to deal with it; I don’t want to know about it.” If they do that, is what will happen to the remains of their pre-24 weeks stillborn baby made clear to them?
Yes. What will happen is made clear to people. There are hospital forms, too, which the families will go through with staff, and what will happen if they choose a particular option is made clear.
The infant cremation commission, which Lord Bonomy chaired, made 64 recommendations, all of which were accepted by the Scottish Government. Have all the recommendations been implemented? If not, is further progress needed on some of them?
A large number of the recommendations have been implemented, and I think that 22 recommendations will be implemented on 4 April, along with the regulations that we are considering and some other regs. Of the remaining recommendations, I think that five have been implemented but are on-going. For example, there was a recommendation that we keep things under review; obviously, we must keep doing that, so we can never say that implementation is complete.
A further five recommendations have not yet been implemented. Three of those will be dealt with in the code of practice for cremation authorities that we intend to produce. For the fourth, which is recommendation 40, we are working with cremation authorities to ensure that software can be developed to help crematoria to meet the requirements of the regulations in the future.
Recommendation 56 asked us to consider whether there should be a national memorial. We said that if there was a major demand for that, it should be considered. A specific memorial has been erected in Edinburgh, and that approach might be what people want rather than a national memorial. We must be mindful of people’s wishes.
Will the Scottish Government’s website continue to be updated so that people know where to go for information?
Yes.
Are all crematoria in Scotland now able to recover the ashes of babies and infants?
Yes—as I understand it, 100 per cent of them can do so. Robert Swanson might want to provide a bit more information.
Yes, that is the case. I am pleased to say that, since I was appointed almost four years ago, on the back of the Mortonhall issues, there has been 100 per cent recovery of baby and, indeed, adult ashes. That is not entirely down to my appointment. Many changes have taken place: baby modes have been fitted, additional training has been put in place and there is an appreciation of what happened previously, which staff have been alerted to. Much greater care is taken and there is much stricter management guidance, with lots of instructions.
A lot of what is in place at the moment will not change that much with the regulations. At the moment, crematoria are complying with what is being asked out of good will. The difference that the regulations will make is that it will be a requirement that they do so; they will not be requested to do so. That will be the major change. In all honesty, the approach has come on a lot. Cognisance has been taken of all the problems that there were, which were well documented, and that has contributed to the success that we now see. I say “success”, but we are talking about what should happen and what is expected to happen. Given the definition of “ashes”, there is no real reason for instances of what happened previously to happen again, other than mechanical failure, which cannot be overlooked—that can happen, although it has not happened to such an extent so far.
At the cross-party group on funerals and bereavement, an issue was raised with regard to paupers’ funerals, as they are known, when no one comes forward and the state pays for the cremation to take place. Will the same protocol apply? If there is no registered contact, what protocol will be followed?
The primary legislation includes a provision that will replace a provision in the National Assistance Act 1948; under the commencement regulations, it will come in at the same time as the regulations that we are discussing. It is for local authorities to pay for and arrange the burial or cremation when there is no next of kin or if, for whatever reason, the next of kin cannot do so. The regulations set out a new application form. In the past, there have been concerns about ashes not being returned to a next of kin when the local authority has arranged the funeral. The form in the regulations will ensure that ashes will be returned in such circumstances. When there is a next of kin, the local authority must ask them how they would like the ashes to be handled; if they want them to be returned, they will be. The regulations strengthen the position of next of kin, but they will still allow local authorities to fulfil their requirements under the Burial and Cremation (Scotland) Act 2016.
You have mentioned a timescale of four to eight weeks for contacting relatives, but how has that been arrived at? There is a concern among committee members that, with that sort of timescale, there is a possibility of disturbing people who are in mourning, who might not be ready to pick up ashes. I know from a lot of constituents’ cases that there has been flexibility in the past and people have been able to say, “We’ll pick them up when we’re ready.” Should we not ensure that that sort of thing continues and that we are not too prescriptive?
If someone says, “I want the ashes, but can I have a bit more time?”, that request is respected. The regulations put in place an absolute minimum time period for contacting people who have not yet made contact; at the moment, there is no such minimum and, in some cases, the timescale is less than what we are putting in place.
The crematoria are very flexible. Indeed, of the 30 crematoria that we have at the moment, I can think of one that has a six-month retention policy. For some, the timescale is less than that, but someone might say, “My brother’s coming over from Australia for the summer holidays. Can you hold on to the ashes until he arrives?” and it will not be an issue at all.
However, there has to be some guidance, given what experience and the historic side of things show us. The number of cases in which ashes remain uncollected runs into the thousands. It is not right for those ashes to be kept in storerooms in funeral directors’ premises or in attics in crematoria around the country, and the legislation is very much geared towards moving forward on the matter.
It is also worth saying that the opportunity is being taken to address the historic cases, because we feel that some arrangement needs to be put in place in that respect. From a practical point of view, somebody has to deal with the matter, and there will be costs involved if it all comes back to the crematorium where the person was cremated. Somebody has to spend time doing something with the ashes. I point out that not all crematoria scatter the ashes—some might inter them. They do not all do the same thing. All those issues must be taken into account.
Thank you.
Minister, you indicated that the intention was for the regulations to come into force on 4 April. When do you expect the code of practice to be published?
We will start working with crematoria and the industry on the code of practice once the regulations are in place, as they provide the legal basis. However, as Mr Swanson has said, a code of practice is already in place. This is about updating that and giving it a legal basis.
So there will be no gap.
There will be no gap.
Excellent. That was very helpful.
We move to agenda item 3, which is the formal debate on the affirmative instrument on which we have just taken evidence. I remind all present that once the minister moves the motion, which I will invite him to do in a moment, officials will no longer be able to participate. Members who wish to speak in the debate should catch my eye.
Motion moved,
That the Health and Sport Committee recommends that the Cremation (Scotland) Regulations 2019 [draft] be approved.—[Joe FitzPatrick]
As no member wishes to participate in the debate, I ask the minister whether he wishes to sum up.
I think that we have covered all the issues, convener.
Motion agreed to.
I thank the minister and his officials for their time.
Burial and Cremation (Pregnancy Loss Prescribed Information and Forms) (Scotland) Regulations 2018 (SSI 2018/384)
Agenda item 4 is consideration of an instrument that is subject to negative procedure. No motion to annul has been lodged, and the Delegated Powers and Law Reform Committee has made no comments on the instrument.
If members have no comments, does the committee agree to make no recommendation in relation to the instrument?
Members indicated agreement.
Thank you very much. We now move into private session.
11:44 Meeting continued in private until 12:14.Previous
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