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Agenda item 5 is on the Burial and Cremation (Scotland) Bill. This is an opportunity to invite oral evidence on the delegated powers in that bill from Scottish Government officials. I welcome Simon Cuthbert-Kerr, burial and cremation bill team leader, public health division, and Graham McGlashan, principal legal officer, Scottish Government legal directorate. I invite questions from members. Somebody will have to remind me who is going first.
You are.
I feared I might be. Give me half a moment to get to the right question.
Good morning, gentlemen, and thank you for your patience. The bill contains a large number of delegated powers—you do not need me to tell you that—relative to its size, and many of the powers are very broad. There also appears to be some inconsistency in the bill with regard to the amount of detail that is specified on the face of the bill and the amount that is left to be set out in subordinate legislation.
The delegated powers memorandum explains that the approach regarding the delegation of powers in the bill is informed by the need to allow for flexibility and to make appropriate use of parliamentary time. We understand those concepts. Can you explain further why it is considered that taking such a large number of wide-ranging powers strikes that balance appropriately?
In drafting the bill, the approach that we have taken to delegated powers is to look at each instance in its own right. For each particular policy outcome, we have considered whether delegated powers are the best way to achieve it. There are a number of delegated powers that do things such as prescribe the wording of forms or specify the type of information that is to be recorded in registers, and we feel that those things are more appropriate for secondary rather than primary legislation.
There are also several delegated powers that we expect to use to set out fairly large and detailed regulations about the operation of particular parts of the bill. For example, section 6 of the bill sets out a power for ministers to make regulations about the management of burial grounds. When we considered the matter, we felt that it was better to set out that level of operational detail in secondary legislation.
The overall approach that we have taken to the bill is to consider in each instance whether using delegated powers or putting specific detail on the face of the bill is the right way to go. We have looked at each provision in its own right instead of taking the blanket approach of saying, “If the effect is X, we will use delegated powers, but if it is Y, we will put it on the face of the bill.”
As a result, in the bill as a whole we have used delegated powers where we feel that there is an appropriate balance between primary and secondary legislation and where that will best serve a particular policy outcome.
I suspect that that is the answer that the committee would have expected in the individual sections that we will explore separately. I merely observe at this stage that there seem to be a lot more delegated powers in this bill than there are in many. That might be appropriate to the subject matter, but it perhaps surprises us and it may surprise the Health and Sport Committee in due course.
I want to pick up on a particular issue that reflects the generality of the fact that a significant number of criminal offences are to be created by regulations. The powers in sections 6, 10, 22, 38, 41, 55 and 70 all authorise the creation of criminal offences in regulations, and the delegated powers memorandum provides little information as to how those powers are likely to be exercised or what activity will be criminalised. Why is it considered to be appropriate to do that?
We have certainly taken a few powers in each of the regulation-making powers to create criminal offences in secondary legislation. For example, as Simon Cuthbert-Kerr pointed out, the burial management regulations that are provided for in section 6 contain a power to create criminal offences. Given the range of matters that could be covered in those regulations, we thought it appropriate to take a power to create criminal offences so that we could tailor those particular criminal offences to the content of the regulations.
We also thought it appropriate to give an indication of the limit of the penalties. The offences are all summarily triable in the courts and subject to a maximum of a level 3 penalty. We felt that it was appropriate to set a limit on the penalties that may be imposed on any criminal offences that we create.
The main reason for taking that approach rather than taking a generic criminal offence on contravention of regulations was to give us the flexibility to tailor the criminal offences to each set of regulations that we bring forward. That is where we were coming from.
Right. I am wondering to what extent those who drafted the bill gave thought to the fact that there is a general principle that it is Parliament that creates criminal offences in statute, and that it is not people who generate regulations who create criminal offences by regulation.
We have other criminal offences on the face of the bill, but in those particular examples we thought that it was appropriate to take a power to set out the criminal offences in the regulations themselves.
I do not think that that is completely unusual. I do not have specific examples in mind, but I am certainly aware that there is secondary legislation that contains criminal offences, so although I appreciate the general principle, I do not think that it is unusual for criminal offences to be created in secondary legislation.
I would not for one moment suggest that we have not done it but, as a parliamentarian, I worry about the idea that if we have done it once we can carry on doing it for ever. Exceptions should be regarded as exceptions.
I must also express concern about the fact that, and ask for some explanation of why, we now seem to have a class of criminal offence that is administrative or unlikely to be contentious. I speak merely as one MSP, but I am not used to the concept of a criminal law being created on the basis that it is administrative or that it is unlikely to be contentious. MSPs are elected precisely because it is our job to sort out such matters on behalf of those who elect us.
I take that point on board. Perhaps it has been conflated a wee bit in the delegated powers memo, where we were talking about the content of the other parts of the regulations. I certainly did not mean to suggest that criminal offences are in any way administrative or uncontroversial.
We still have the issue that you feel that they can be created extensively. I simply put on record the fact that putting the maximum penalty in the statute is not just to keep us happy; it is absolutely crucial. I am grateful for that, because this committee would have growled seriously had that not been included. However, that does not alter the fact that you are taking within regulations conduct of which the man in the street, whom I represent, would say, “If you don’t do what the regulations say, that’s a criminal offence.” That is not the way that the law of the land is generally written and it is not the way that I would want to see it, and I suspect that my colleagues would agree with me on that.
I want to ask another general question. In the delegated powers memorandum, there seems to be a suggestion that some of the regulations are kind of okay and could come through by negative procedure, because the Government will have had to consult other people. That is a fair point as far as it stands, but what is the logic in saying that consulting the general public or some organisation or group is any substitute for parliamentary scrutiny and therefore justifies the use of the negative procedure rather than the affirmative procedure?
We have certainly not intended to suggest that consultation is any substitute for parliamentary scrutiny, and I apologise if the delegated powers memorandum is perhaps a little heavily written in that regard. The intention with the consultation was to offer Parliament some reassurance that any regulations that were laid had at least gone through a consultation process, so that the regulations that were then laid at least reflected a consensus viewpoint. To reiterate, it was certainly not our intention to suggest that that was equivalent to, or preferable to, parliamentary scrutiny.
Let us leave the generality there. I turn to Stewart Stevenson.
I will start by exploring some of the implications of section 6, on the management of burial grounds. In particular, I note that there may be regulations to make extensive provisions and that those provisions appear to have no particular boundaries. Given that we have had burial grounds for a long time, one might have thought that we had a pretty clear policy view as to how to manage them. What justification is there for the amount that will be in secondary legislation in connection with managing burial grounds, given that there is nothing particularly novel—I would have thought—about managing them?
11:15
Section 6 specifically addresses a recommendation made by the burial and cremation review group, which, as you know, made a lot of recommendations that have been taken forward in the bill. In England and Wales, the Local Authorities’ Cemeteries Order 1977 sets out a framework for the management of burial grounds.
Stakeholders in Scotland—burial authorities in Scotland—have long argued that although, as you said, there are clear and well-established processes for managing burial grounds, the lack of any central guidance or regulation that sets out a framework calls into question some of the approaches that burial authorities have taken. In particular, how far they can go to maintain headstones is an issue. During the consultation, burial authorities asked us to set that out somewhere in the bill. Similarly, we also hope to address in the regulations the inconsistent approaches that various burial authorities take across the country.
It is not necessarily the case that the regulations will introduce entirely new concepts, but they will introduce valuable consistency and a new framework, and they will codify some of the practices that have been carried out for a number of years and are still thought to be fit for purpose.
You have said that what will be in the secondary legislation is well understood and that you know what will be in it, so why is that not in primary legislation? If, in effect, we appear to know what we want to do, why defer the matter to secondary legislation? In the nature of things, secondary legislation is not capable of amendment by Parliament; it is capable only of acceptance or rejection. If the provisions were incorporated in the bill, they could be dealt with in a much more detailed way by Parliament.
One reason why we have taken that approach is the level of detail that we would expect to see in any regulations. Section 6 of the bill sets out quite a lot of detail, but we consider that to be the framework and we think that a lot more detail will need to be worked out. Regulations are a more suitable way to do that, rather than in the bill, given the nature and extent of the detail that we would expect to see.
Section 6 touches on places to keep bodies before burial. I take it that it is not intended that the secondary legislation that might touch on the issue would, for example, restrict the right of families to keep the body—as is traditionally often done—in the front room, from which it departs directly to burial?
Nothing in the bill would prevent that from happening.
That is not quite my question. My question is: would the bill allow secondary legislation to be created that would restrict that right?
If I am following your question, I do not think that the bill would do that, if I am following the argument properly. Section 5 is on places to keep bodies before burial and is intended to put burial authorities under a duty to provide somewhere where bodies can be kept temporarily before burial. The section was intended to restate a power in the existing Burial Grounds (Scotland) Act 1855. However, we have since discussed the matter with burial authorities, which told us that section 5 is unnecessary, because the situation that it describes no longer arises. The body is now brought directly to the burial ground by the family or the funeral director and it is buried as soon as possible thereafter.
I move on to section 18(1), which relates to the suspension of private burials. The delegated powers memorandum explains that the power would be used only in emergencies, but we do not have much insight into what would constitute an emergency.
The section is intended to react to public health issues, such as pandemics and so on. Having looked at the section since the bill has been published, we recognise that there may be a lack of detail. For example, when we contrast it with section 70, which clearly states the processes that are intended to be used in response to public health risks, we think that there is probably scope in section 18 to make the processes much clearer.
Perhaps there are three times at which the process might operate. First, when a private burial has already taken place, is it envisaged that the process could be used to exhume and move the body on public health grounds? Secondly, could it be used once agreement had been given to a private burial taking place but before it had taken place—in other words, when the corpse was waiting for private burial? The third is the obvious one where it is done in a more neutral environment. Would the scope of how the bill is drafted cover the first two circumstances—where the burial has already taken place, causing that to be undone, and where permission has been given but the burial has not yet taken place?
On the second point—where permission has been given but the burial has not taken place—the answer is yes. Our policy intention is that there might be instances where we would have to intervene to prevent that burial from taking place.
The first point was about this being a process to allow the body to be exhumed. That is certainly not the policy intention and I do not think that the bill would allow for that.
To move on, section 70 appears to allow ministers to suspend a wide range of legislation for the purposes of public health requirements. If that is the case, that appears to cover the intention of section 18(1), so why are the powers in both places?
When we were drafting the bill, given that this is the first time that we have legislated for private burial, our intention was to look at private burial as a distinct section. In doing that, we may inadvertently have provided for the same effect in two places.
The drafting suggests that there are emergencies covered by section 18 that go beyond public health, which is covered by section 70. Is that the intention?
No—it is not the intention.
So the emergencies that are envisaged in section 18 relate to public health and to nothing else.
Yes.
In that case, perhaps the Government should consider whether it is necessary to have the provision in section 18.
Absolutely—I think that we could consider that.
The disposal of ashes has been a sensitive question that has created quite a public reaction, so I am interested that section 37(1) says:
“The Scottish Ministers may by regulations make provision about—”
and lists a number of things, including
“the disposal of ashes by cremation authorities”.
The issue is hugely important and sensitive and is very much in the public awareness. Why is it in regulations rather than in the bill?
Broadly speaking, section 37(1)(c) is intended to allow cremation authorities to take action to dispose of ashes when ashes have been left with them and are unclaimed. It is not generally intended to apply to how ashes would be ordinarily managed.
The process that we intend to follow, which is very much in line with the recommendation made by Lord Bonomy’s infant cremation commission, is to redraft the cremation application form so that the applicant will have to specify what should happen to the ashes. The current draft of the form offers a number of options, including applicants retrieving the ashes themselves, the funeral director retrieving them on the applicant’s behalf and the crematorium holding on to the ashes until the applicant and the family have decided what should happen.
That is the process by which we expect ashes—and what should happen to ashes—to be managed in each instance. However, we are aware of situations where ashes, for whatever reason, are left at crematoriums. Cremation authorities have told us that they have no route by which to return the ashes to any particular place, other than to the funeral director, if they lose contact with the applicant or the family.
Section 37(1)(c) is intended to make it clear that, when ashes have not been collected, either because that is in line with the wishes that the applicant expressed through the application form or because the ashes have been left behind, the crematorium will be allowed to return those ashes to the funeral director or to take steps to bury or scatter them in the grounds of the crematorium.
I am even more mystified now. You have given a pretty clear explanation, and you and your colleagues have obviously thought through what might happen and what the options are. That makes it even stranger to me that the provisions are not in the bill. For example, if the cremation authorities have to hold on to the ashes for five years and then take some action, the period of five years is pretty critical. Could that not be on the face of the bill?
The key to the matter is the new application form, which will ask the applicant to express what they want to happen to the ashes. Quite a range of options is available. To allow for flexibility and to reflect the variety of potential outcomes, we have drafted the bill on the basis that we feel that regulations are the way to go. Nonetheless, we can certainly consider whether that would be preferable and more appropriate to have in the bill.
I appreciate it if you are going to reflect on that. I have certainly found the drafting surprising, and I have a feeling that some of the families who have been involved in such issues might find it a bit surprising as well.
I reinforce the view that if you are clear what the policy is—about its range and scope—it is not obvious why that is not in the bill. We well understand that administrative things such as writing forms need to be done—nobody has the slightest difficulty about that. However, if you are clear in policy terms about what you are trying to do, surely we should be asking Parliament at this stage to agree—or disagree—with that.
We can certainly look at that. As I said, the approach that we took in drafting the bill was to allow for the diversity of potential situations and outcomes; we felt that some flexibility was needed. We can look at whether it would be better to have the provisions on the face of the bill.
I understand that the regulations under section 37 are subject to the negative procedure, whereas similar regulation-making powers in section 6, on the management of burial grounds, are subject to the affirmative procedure. Why is there a difference between the two?
The existing cremation regulations under the 1902 act are subject to the negative procedure and have a similar range of coverage to the power that we are taking now, so it was felt to be appropriate that we attached the same procedure to it.
Did you refer to the 1902 act?
It is the Cremation Act 1902.
That is from rather a long time ago. I wonder whether the view of cremation might have changed, in the light of recent events.
We can certainly reflect on those things.
I appreciate that.
I will touch on how the following two sections of the bill—sections 38 and 39—relate to each other. Section 39 is pretty clear about offences and refers back to section 38 offences. For example, it says:
“A person commits an offence if the person provides information in, or in connection with, an application under section 38(1) which the person knows to be false or misleading in a material way”.
That is fine; it is pretty clear. In section 38, on an application for cremation, I find it a bit puzzling that subsection (2) says:
“The Scottish Ministers may by regulations make provision for or in connection with an application mentioned in subsection (1)”.
Subsection (4) says:
“Regulations under subsection (2) may in particular”
and it lists a number of things, including item (g), which is to
“create criminal offences to be triable”.
If we have section 39, which is pretty clear, why do we need section 38(4)(g)?
11:30
As we stated at the outset in relation to the general approach to regulation-making powers, we wanted flexibility—in this case to create criminal offences in the regulations that we will bring forward on applications. That is the aim, but I can certainly see that we have a specific offence in section 39, so we might reflect on whether the power to create criminal offences in section 38 is necessary. We can reflect on that and consider whether there is anything that section 39 does not cover for which we would need further regulations.
That answers my supplementary question. Section 38(4)(g) implies that there might be other criminal offences, and I think that you have already picked up from the convener that we are not wildly enthusiastic about criminal offences being created by regulation. Therefore, we would be interested in having any examples of criminal offences other than the clear ones that are set out in section 39.
I have a question on section 60 and the powers that are to be conferred on inspectors. As the bill is drafted, there appears to be absolutely no limit to the powers that could be conferred on inspectors. An example that came to my mind—it might be at the margins—is that an inspector could be given the power to inspect a coffin before burial to ensure that no stolen goods were being buried. That might be beyond what one would imagine, but it appears to be permitted by the regulations that the Government could make under the power. Why are there not more specific provisions on the limits of the powers that inspectors might have?
The framework for the powers of the inspectors is set out in sections 61 to 64. It is certainly not the intention that an inspector would be used for the sort of purpose that you highlighted, although I understand your general point. The framework for the inspection regime that is set out in sections 61 to 64 is about the processes that various parties in the funeral industry use and the quality of services that are provided. We want to use regulations for that because we feel that a level of detail is required to give effect to the broad framework that is set out in the bill.
I am not questioning the need for a relatively broad framework; I merely wonder why the bill is relatively silent on the boundaries of the powers that might be given to inspectors. There can be unexpected effects. From ancient history in my life, when I was a water bailiff, I had the power to enter any premises without cause shown or without any particular purpose being described. That was regarded as unsatisfactory and was corrected in later legislation.
The provisions in the bill kind of smell much the same. Although I am relatively confident that no Government would be likely to give the inspectors powers that the police could only dream of having, would it not be helpful for the primary legislation to draw boundaries round the powers that might be given before a Government of whatever hue in future draws up the regulations?
To go back to the example that you cited about powers of entry and inspection, those are set out at section 62 and they are limited to
“premises ... associated with the management or operation of”
burial authorities, cremation authorities or businesses of funeral directors. We have set out fairly specific powers of entry in the bill, so that will not be dealt with in regulations at all.
I think that we intend to exercise the powers that relate to sections 60 and 61 in one set of regulations, as regulations made under both sections will be subject to the affirmative procedure. That will give members the complete picture about inspectors’ functions.
We have examples of how the power in section 61 may be exercised, to give a flavour of the sorts of things that inspectors will do, in relation to frequency of inspections, reports and enforcement. We have set out the types of functions that we would expect inspectors to have.
There might be a structural issue. I see that section 60 sticks out on its own, and we might reflect on the structure of sections 60 and 61 and whether we can make the powers a bit clearer.
You will appreciate that it is not the committee’s purpose to worry about policy, but we are always concerned that legislation should be drafted in such a way as to make the boundaries clear and reasonable in light of the policy, even if it is not our job to worry about what the policy is.
You talked about what is set out in the provisions, which use the word “management”. That made me want to ask whether we are clear about what “management” means. Could the meaning be wider than is intended? If so, there should perhaps be other constraints in the text, to limit what the regulations can cover.
That is the principle to which we parliamentarians adhere—forgive me for getting rather philosophical. We are in the business of giving the Government powers, and when the Government asks for powers we want to give it only the powers that we are happy for it to have. We are not in the business of giving the Government an open-ended power to do things that it might happen to think are appropriate. That is not what the Parliament does. On that happy note, we will move on.
I will continue on the same theme. The delegated powers memorandum describes the proposed regime for licensing of funeral directors’ premises as “extensive” and “administrative”. The creation of a licensing regime that will apply to an industry that currently operates on an unlicensed basis could have a significant impact on individuals who operate as funeral directors. Given that, why is it considered appropriate to delegate the matter almost entirely to regulations?
We have in mind a clear model of how the scheme might operate, which is set out in the financial memorandum. Our financial estimates are based on a particular model.
As Richard Baker said, there is currently no licensing whatever. There is also little external scrutiny of funeral directors. The policy intention therefore is to introduce inspectors, who would not just inspect individual funeral directors but would have an overall perspective on the funeral directing industry and consider whether licensing might be necessary.
In setting out the regulation-making power, our approach is to put the scheme in a clear framework while providing sufficient flexibility that any recommendations that inspectors might make about the shape, form or functioning of the licensing scheme can be given effect.
I appreciate the policy intention, but the question is why so much should be left to regulation rather than set out in the bill. You said that the Government has “a clear model” in mind for how the scheme will operate. Other licensing schemes are set out more fully in primary legislation—I am thinking about the Civic Government (Scotland) Act 1982, the Licensing (Scotland) Act 2005 and, most recently, the Air Weapons and Licensing (Scotland) Act 2015. What distinguishes the licensing regime for the premises of funeral directors from those other licensing regimes that makes it more appropriate that it be set out in regulations, rather than in a bill? You said that you have “a clear model” in mind.
We do have a clear model in mind, but as I said in my previous answer, that model may have to change on the basis of the inspection regime and any recommendations that are subsequently made by inspectors.
That would also apply to the other regimes that I mentioned. There must be similar circumstances in relation to those regimes, but those regimes are established in primary legislation.
We have looked at those other regimes in trying to develop models and approaches. One of the key differences between the schemes that you mentioned and this one is that it can be operated by the Scottish Government, rather than by local authorities. We can achieve our policy intentions with a relatively unbureaucratic system, which would not need the scale of scheme that some other licensing regimes have created.
The approach that we have taken so far, and our examination of other schemes, suggests that those schemes are much bigger and have far greater amounts of bureaucracy around them than we think is necessary in the approach that we intend to take.
I will move on to section 67—
I am sorry—Stewart Stevenson wants to come back on that point.
My point relates to the fact that we are talking about licensing funeral directors, rather than the activities that funeral directors undertake. Almost all the activities that are undertaken by a funeral director—the only exception in my mind is embalming—can be undertaken by a private individual. Is it envisaged that the regulations would catch private individuals who undertake activities such as laying out, arranging for burial and transporting remains to the place of burial? Virtually every step of the process could be undertaken by private individuals. Are those individuals to be outside rather than inside the regulations? If they are a private individual, why should they come under the regulations? In other words, what is the intended scope of the powers in secondary legislation?
Our approach is that particular activities should be licensed—for example, laying out of the body or transporting the body from one place to another. Those are functions that we would want to consider within a licensing scheme, because it is about ensuring that the deceased is treated appropriately and with dignity. At the moment, we do not know the extent of the dignity and respect that the deceased is treated with because there is almost no external scrutiny of funeral directors. Rather than looking at funeral directors as a specific function, we have in mind specific activities that are carried out in relation to funerals, so we would not look to license only funeral directors as recognised by the general public, but anyone who is carrying out particular tasks.
So the scope of the secondary legislation might include an individual who lays out the body, which was traditionally done in the deceased’s home, and a nurse who does the laying out in a hospital before collection by an undertaker—I do not know if that is still done, but it certainly was when I was a nurse. I am not saying that it is particularly common, but I can well see such tasks being undertaken by people other than funeral directors in rural and island communities. Is it intended that the secondary legislation will cover activities that private individuals might undertake in exchange for no financial reward or equivalent benefit?
11:45
I ask my colleague to answer that question.
As the powers are set out, they relate to where a funeral director carries on a business. That is how the powers in respect of the scope of the licensing scheme are set out.
So, in essence, the power is being created to create regulations for the limited circumstances in which someone is undertaking those activities for reward. Is that the intention?
Yes. The powers relate to carrying on a business. That is certainly how the powers are currently framed.
Just to be clear in my mind, the test would be that the activity is done for reward. I am not looking at the bill.
I think so. To take your examples, I do not think that anybody would regard a nurse who was laying out a body in a hospital as carrying out funeral-related activities. They would be doing their job as a nurse.
You mentioned people in rural communities. We considered the diversity of funeral businesses, which vary from massive organisations down to people who do a handful of funerals each year and whose main business is something else entirely. We want to capture anybody who does the work in question essentially as a business. It may be a small element of their business; they may only transport the deceased from hospital to their home for a small sum of money. The key policy aim is to ensure that that kind of function is done properly. If somebody charges for such a service, from a policy perspective we should consider that to be within the scope of the bill.
We as a committee are interested only in how powers derive to create secondary legislation. Am I right that the policy intention is that secondary legislation will relate only to people who are undertaking those activities for reward?
Yes. The licensing scheme relates to funeral directors’ premises, and the test is laid out in section 65(2), which states:
“references to a funeral director’s premises are to any premises ... owned or occupied by a funeral director, and ... used primarily for ... carrying on the funeral director’s business”.
That suggests rewards.
If we are talking about the premises, but not about the undertaker or the activities, surely most of the transport cannot be covered.
Section 65(2)(b)(ii) refers to premises that are used primarily for
“carrying on any activities relating to the funeral director’s business.”
That may suggest the hearses that are used.
Forgive me, but I do not have that detail in my head. That makes perfectly good sense, but is there a risk that there will be some door in a hospital beyond which a nurse will not go because that is somehow somebody’s else’s job and people have to be licensed to go to that place?
I do not think so. As the bill is constructed, that type of place would not be regarded as being primarily used by the funeral director or for the funeral director’s business. It would certainly be used for the deceased, but not necessarily primarily by a funeral director or as part of their business.
Okay. I will leave it there.
My question is related to that. This may not commonly happen, but theoretically somebody who makes a living as a full-time funeral director may have no premises, so they would not need a licence.
The way that the power is drafted means that it relates to licences for funeral directors’ premises and the carrying out of their business on those premises.
It is very much about the premises, and not the person or the activity.
That is how the power is laid out in the bill.
We are collectively straying fairly close to policy, but we are bringing up some interesting points, which the witnesses might like to reflect on. Shall we come back to the codes of practice?
Section 67 creates a power for the Scottish ministers to issue codes of practice regarding the exercise of functions by burial authorities, cremation authorities and funeral directors. Section 67(5) states that
“a burial authority, cremation authority or ... funeral director must ... comply with any code of practice applicable to it”.
Why is it considered appropriate to issue a legally binding code of practice to which no form of parliamentary procedure is attached? How, is it expected, will compliance with the code be enforced?
There is parliamentary procedure in that when the code of practice is published, it will be laid before the Scottish Parliament. I appreciate that that is not negative or affirmative procedure, but there is a publication element to the code. I cannot comment on the policy intention, but I point out that part of the provision.
We would expect enforcement of compliance with the code of practice to fall to the inspectors.
So the inspectors will enforce the regime with the appropriate penalties.
Yes.
However, the code itself will be published and laid before the Parliament with no possibility that Parliament will be able to amend it or reject it. There will be no procedure beyond the laying of the code.
That is how the bill is drafted. Section 68 provides for consultation of people who would be affected by the code of practice, before it is published, but the parliamentary procedure under section 67 is the laying before the Scottish Parliament of the code.
In drafting the provisions, we gave particular consideration to recommendations that Lord Bonomy made about codes of practice that should be issued to various parts of the funeral industry. Many of those codes of practice have now been developed with stakeholders and are in place.
In sections 67 and 68, we sought to give some sort of statutory footing to those codes to try to underline their importance and the value of stakeholders complying with them. Section 67(1) talks about
“(a) the carrying out by a burial authority of functions …
(b) the carrying out by a cremation authority of functions …
(c) the carrying out of the functions of a funeral director.”
In drafting that, we had in mind the codes of practice working in conjunction with regulations that we set out elsewhere. However, with hindsight, I can see that in trying to provide additional strength to the codes of practice we may inadvertently have made the situation slightly less secure in that there would be no full scrutiny by Parliament. We could reconsider that.
You will reflect on that further.
We will.
If you will forgive me, I will extend that point. This is a jurisprudence morning, but since when has legislation’s purpose been to “underline” something of importance?
I am sorry—I may simply have misexpressed the policy intention. I am trying to suggest that, as the codes of practice are already coming into force, there is value in giving them a statutory footing.
I am not trying to pick over your words, so forgive me if that was the impression that I gave. It was more that if there is no procedure for enforcing something, saying that it is enforceable does not help.
Do you mean enforceable in terms of compliance with a code of practice?
If somebody has to comply with something, unless not complying with it has some repercussion that is on the face of whatever they are dealing with, why does it exist?
Simon Cuthbert-Kerr mentioned that the intention is that the inspectors enforce the legislation and the codes of practice.
There is a specific power in section 61(3) where we illustrate all the matters that might be covered in the regulations. It refers to
“steps that may be taken by inspectors for the purpose of ensuring compliance with requirements or conditions contained in enactments, codes of practice or guidance applicable to relevant bodies”.
The enforcement part of it would be in terms of the functions placed on inspectors under the inspection regulations. That is where the link is made between the two.
I am with you there. What are the inspector’s powers to enforce compliance?
The steps that the inspector may take to comply with the requirements will be expanded on in the regulations. That is for secondary legislation and will have to be considered in light of the inspection models that we are considering at the moment.
I hesitate to draw the analogy, but I take it from that that we may in time end up with the same kind of system as with factory inspectors who are able to stop something happening or prosecute someone—and all that will come in through regulations.
From a policy perspective, that would be the intention and, as Graham McGlashan has explained, we would look to set that out in more detail in regulations.
You said that you will reflect further on simple publication and the laying before Parliament of the code of practice. That is welcome, and I am sure that the committee will want to return to it in future.
My next question is on the application of the provisions in this bill to future circumstances and new methods of disposal of human remains as practice develops. Why has the decision been made that the provisions of this bill should apply to such practices rather than that primary legislation on the matter should be introduced at such time in the future as is considered necessary? Which provisions of the bill are likely to be applied in respect of any new methods of disposal of human remains?
We drafted the section with our eye on future proofing the bill. A number of different techniques for the disposal of human remains are either in use in other countries or being developed. As far as we are aware, there is no particular barrier to any of those techniques being implemented.
For example, resomation is a process whereby the body is dissolved in a chemical solution until there are only the bones, which are then ground up to make ashes. Various states in the USA use the technique already. We are aware that some companies in Scotland are interested in that. As far as we are aware, there is nothing to prevent them from offering that service at the moment.
The power in the bill will mean that, if anybody brought forward such a technology and started to offer it, we would be able to regulate the process quickly. The provisions in the bill do not preclude primary legislation being brought forward to cover the process specifically, but they are certainly intended to allow a process to be regulated for, at least in the short term.
The answer to the question of what parts of the bill would apply would depend on the particular technology that was introduced. For example, resomation is arguably closer to cremation than it is to burial, so perhaps if it was offered by a cremation authority, burial authority or funeral director, the parts of the bill that relate to cremation and could be read across to resomation might be the parts that are used in that way.
Thank you.
My final question relates to section 70, and it comes back to the creation of penalties and whether they are in regulations or on the face of the bill. Section 70 permits the suspension of certain enactments when ministers consider such action to be necessary or expedient for the purpose of protecting public health. Such regulations may include provisions that create criminal offences that would be, in this instance, punishable by a fine.
The regulations may also impose other penalties or sanctions in respect of any contravention of, or failure to comply with, specified provisions. Those additional sanctions and penalties are not set out in the bill. Why is it appropriate to take a power to impose unspecified penalties or sanctions for non-compliance in addition to any criminal offences? Why are the additional penalties or sanctions not set out in the bill?
12:00
Again, I think that the answer is to create flexibility to allow us to respond to emergency situations. Beyond creating criminal offences, we may need that flexibility to impose other sanctions in an emergency situation.
I presume that having additional sanctions in regulations would not help if there was an emergency covering a 24 or 48-hour timescale, so I would be interested to know what sort of emergency situation you foresee.
We can certainly reflect on that. I do not have a specific example, as we would be responding to specific circumstances that are unforeseen. It is therefore hard to come up with a specific example on the spot, but we can reflect on your point.
That is appreciated. This brings us back to the general point that the convener made at the beginning of the meeting about whether it is appropriate for some things to be in regulations rather than in the bill.
Yes. I have no idea what the answer is, but I presume that the Government has statutory powers to do some fairly extreme things in emergencies, and it seems to me that the kind of thing that Graham McGlashan has talked about might well be covered by existing legislation. That sounds a far better place for it to be than in regulations under section 70. However, I think that you will reflect on that, as you will on many other things. We are grateful for that.
That is the end of our questioning. I thank the witnesses for coming along and for their illuminating answers. I will suspend the meeting for a couple of minutes.
12:01 Meeting suspended.