Burial and Cremation (Scotland) Bill: Stage 1

– in the Scottish Parliament at on 11 February 2016.

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Photo of Elaine Smith Elaine Smith Labour

The next item of business is a debate on motion S4M-15608, in the name of Maureen Watt, on the Burial and Cremation (Scotland) Bill.

Photo of Maureen Watt Maureen Watt Scottish National Party

I thank the Health and Sport Committee, the Local Government and Regeneration Committee and the Delegated Powers and Law Reform Committee for their detailed consideration of the Burial and Cremation (Scotland) Bill and for supporting its general provisions. I have written to each committee to respond to their recommendations. I want to use this opportunity to explain how I have responded to some of those recommendations and to impress upon members the value of the bill.

The Local Government and Regeneration Committee suggested that the bill lacks ambition. I disagree with that view. The bill is an important one that will make valuable and much-needed improvements to the way in which burial and cremation are carried out in Scotland. The current legislation is over 100 years old—indeed, the current burial legislation dates back to 1855—and it strains to meet current expectations.

Few of us wish to think about the subject matters that the bill deals with, but they affect all of us at some point. When we need to arrange a funeral, it is essential that processes are easy to understand, consistent and reliable, and we need to know that our loved ones will be treated respectfully and with dignity. The current system does not ensure that that is necessarily the case, and the bill will rectify that.

There are a number of problems with the current system. There is a lack of consistency in some important processes, and those processes can be complicated and difficult to understand at the best of times, let alone when dealing with the loss of a loved one. There can also be a lack of clear information given to the person who is making the funeral arrangements. Lord Bonomy’s infant cremation commission identified all too clearly the potential impact of these problems. The steps that are taken in the bill will help to ensure that such failings can never occur again.

The Health and Sport Committee’s report made a number of recommendations to further improve the processes that are set out in the bill, and I thank the committee for the rigour with which it has considered the bill. In my response to the committee, I confirmed that I will accept many of its recommendations, and I believe that the bill will be stronger for that.

In setting out what will happen after a pregnancy loss, the bill ensures that the woman who has experienced the loss is at the centre of the decision-making process. I intend to lodge stage 2 amendments to further support an even more person-centred approach to deciding what should be done with the remains of a pregnancy loss. That will ensure that no woman is ever rushed into making a decision and will provide extra flexibility where a woman needs more time to decide what she wants to happen.

I will also lodge amendments to improve the process following a post-24-weeks termination. Although such situations are relatively rare, it is important that there is a consistent approach in which a woman is given clear options and is supported to make a decision that is right for her. I will also lodge amendments to protect the woman’s medical confidentiality in that situation.

The Local Government and Regeneration Committee expressed concerns about the bill’s lack of provision regarding the siting of crematoriums. Many people who gave evidence to the committee believed that the bill should replicate the existing minimum distance provision in the Cremation Act 1902, which prevents a crematorium from being built within 200 yards of a house without the consent of the householder. I do not believe that including such a provision in the bill is necessary.

The location of new crematoriums, as well as other developments close to existing crematoriums, is rightly a matter for the planning system. Matters to do with emissions from crematoriums are regulated by the Scottish Environment Protection Agency. Those two regimes provide appropriate levels of control over the location and operation of crematoriums. An additional distance restriction set out in the bill would have no function that is not already provided for by one or other of those regimes. I therefore do not believe that there is any particular benefit to the inclusion of a minimum distance in the bill.

In my response to the Delegated Powers and Law Reform Committee, I indicated that I have accepted many of its recommendations. In particular, the committee was keen that the bill itself said more about what might be done with ashes, rather than leaving that to secondary legislation. I accept the committee’s view about the importance of that, and I intend to lodge amendments to strengthen the bill’s position on what crematoriums and funeral directors may do with ashes, particularly where they have not been collected by the family as arranged.

The committee also raised concerns about setting out particular offences in secondary legislation. I have reviewed that approach and I am able to confirm that I will bring forward a number of amendments to remove offences that would have been set out in regulations. However, I believe that in some instances the approach remains appropriate.

All three committees commented on the approach to the inspection regime that is set out in the bill, as well as the potential licensing of funeral directors. The bill sets out significant detail about inspection and the role of inspectors. That includes inspectors’ duties, sanctions against poor practice or breaches of regulations, reporting arrangements and accountability.

I intend to lodge an amendment that will help to clarify the inspection function further on the face of the bill, but it is right that the framework for inspection is set out in the bill while the detail of the day-to-day operation of the scheme remains for secondary legislation. The bill places ministers under an obligation to consult stakeholders before making regulations about inspections, and those regulations are in turn required to be approved by the Scottish Parliament, using the affirmative procedure.

There was also a collective view that more details of the proposed licensing scheme for funeral directors should be set out in the bill. I do not think that that would be the right approach. The bill sets out the key principles of a licensing scheme, including that a funeral director will require a licence to operate, if a licensing scheme is indeed established. Details of the operation of the scheme will be prescribed in regulations, and the bill sets out what such regulations may cover.

At the moment, there is not enough evidence about the industry as a whole to say with certainty that licensing is required or what form a licensing scheme would take. Although we have heard accounts of poor practice by funeral directors, I believe that most companies provide a good service. Nonetheless, I am keen that standards are improved throughout the industry and that meaningful sanctions can be taken in response to poor service and bad practice. That is why I intend to use inspectors appointed under the bill to review the industry and make recommendations about the need for licensing and how licensing could most effectively operate. Although that may delay the implementation of a licensing scheme, I believe that that is the way to ensure an effective licensing scheme that will support consistent high standards across the industry.

I look forward to hearing the contributions of members.

I move,

That the Parliament agrees to the general principles of the Burial and Cremation (Scotland) Bill.

Photo of Duncan McNeil Duncan McNeil Labour

I begin by thanking the many stakeholders who submitted evidence on the bill, particularly the parents who generously shared with the committee their difficult experiences of losing a baby or a pregnancy. The evidence greatly assisted us with our deliberations and our understanding of the issues—that is reflected in our stage 1 report.

The loss of a baby is one of the most heartbreaking things that can happen to a parent. The excitement and anticipation of family renewal and a new birth turn to shock, grief and trauma. Add to that the experience for a parent of not knowing what happened to their baby’s ashes and there is a long-lasting and devastating impact on those affected. The bereaved parents who shared their views with the committee sent a clear message: the bill must ensure that the poor practice of the past never happens again.

The bill’s policy memorandum states that its purpose

“is to provide a modern, comprehensive legislative framework for burial and cremation.”

The evidence that we received welcomed the bill’s intention and the committee supports its aims.

A key purpose of the bill is to give effect to a number of recommendations that were made by the burial and cremation review group and the infant cremation commission. We therefore examined how the bill addresses circumstances involving pregnancy loss and the loss of a baby. We made a number of recommendations to the Scottish Government in our stage 1 report about strengthening the relevant provisions in the bill. I welcome the minister’s confirmation that she will introduce stage 2 amendments to address many of our concerns. Time does not allow me to address all the recommendations, so I will instead focus on a couple of the key issues. As my speech will use the terminology of the bill, I apologise in advance if my use of that terminology causes anyone distress.

A key objective of the bill is to establish a clear and unambiguous understanding of “ashes”. It defines “ashes” as not including metal and defines “cremation” as

“the reduction to ashes of human remains by the burning of the remains and the application to the burnt human remains of grinding or other processes.”

We agree with that definition, which accords with the infant cremation commission’s recommendation. The Stillbirth and Neonatal Death Society UK also considered that the definition matched the understanding that many parents have of ashes.

However, stakeholders from the cremation industry raised concerns about the definition of cremation in the bill. They explained to the committee that the term “cremulating” was preferable to the industry. The committee also heard concerns that certain faith groups and nationalities do not wish burnt human remains to be cremulated. Their evidence made it clear to the committee why the terminology in the definition must be clear and accurate, and I seek clarification from the minister that the guidance for cremation professionals will ensure that, when appropriate, they must explain the process of cremulation to the bereaved so that they can make an informed decision about whether to proceed.

The bill provides for a number of different timescales in which women are invited to consider what arrangements to make after losing a pregnancy. We have called for the statutory timescales for decision making and the disposal of remains that are in the bill to be made more flexible. That is essential to allow women to make their decisions as quickly or as slowly as they wish.

Although we welcome the Scottish Government’s confirmation that it will consider amending the bill at stage 2, I seek clarification from the minister about the range of factors that she considers will enable health authorities to delay the disposal of remains after the end of the six-week period, such as when a woman is waiting for welfare payments or for a social fund funeral payment, or she remains incapacitated.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

It has occurred to me that there is in a tiny proportion of cases the perinatal death of the mother. Has the point been made that such rights might also be extended to the father in those very limited but critical circumstances?

Photo of Duncan McNeil Duncan McNeil Labour

That is not something that we looked at particularly, but the member has made a good point. The minister is here and she might wish to consider that further.

The committee also welcomes the provisions in the bill that set out who may make arrangements for burial and cremation following the loss of a child; they might cover the issue of the mother’s death that Stewart Stevenson brought up. However, we are concerned that the approach might not be suitable for women who undergo a medical termination after 24 weeks when the laws of confidentiality might preclude relatives from being contacted or when the woman has no family or her family is unwilling to make arrangements. I welcome the minister’s confirmation that the Government is considering amendments to address that, but I would welcome more information on the terms of those amendments.

In summary, we welcome the policy intention of the bill and agree to its general principles. However, the bill must be strengthened to ensure that previous poor practices never arise again.

Photo of Kevin Stewart Kevin Stewart Scottish National Party

As convener of the Local Government and Regeneration Committee, it is my job to share with members the main points that arose during my committee’s scrutiny of the Burial and Cremation (Scotland) Bill at stage 1. Our locus was primarily the processes that support burial as an option for the future, and some discrete areas relating to cremation, including the siting of crematoria. We also considered the proposals on inspection and licensing of the funeral industry. An additional area of focus for us, although it is not directly addressed by the bill’s provisions, was funeral costs, which are sometimes referred to as funeral poverty.

Before I cover our deliberations in more detail, I record the committee’s support for the general principles of the bill. There is no doubt that the bill is required in order to modernise the archaic legislative framework.

To assist us with our scrutiny we sought the views of people who work in the funeral industry, and we heard from a diverse stakeholder group, including the Muslim Council for Scotland, the Commonwealth War Graves Commission, Citizens Advice Scotland and the Scottish Prison Service. We received a total of 33 responses to our call for evidence and we thank all those who shared their views with us. Interestingly, there were no responses on the generality of the bill and its impact on them. We found that surprising, given the bill’s potential to impact on everyone. As the oft-quoted Benjamin Franklin said,

“In this world nothing can be said to be certain, except death and taxes.”

Why the lack of engagement? We believe that it was due to the lack of detail in the bill. How can members of the public or stakeholders be expected to comment on the policy if they cannot comprehend how it will work in practice? We have requested more detail on three key areas: the management of burial grounds scheme, the independent inspection regime and the proposed licensing scheme.

The bill’s principal aim is to modernise the legislative framework. As we have heard, the existing legislation that we have to deal with and update is quite old. We have an industry that is steeped in tradition, which is not necessarily a bad thing. However, funeral businesses, just like other businesses, have to operate and compete in the modern digital world. Electronic record keeping is no longer a nicety—it is a necessity. Disappointingly, the bill has fallen short of requiring electronic record keeping, so we recommend that that be remedied.

The bill largely preserves the existing approach—albeit with some modifications to bring the legislation into the 21st century. We believe that the bill could fundamentally change how the funeral industry operates, and by doing so send a clear signal on service standards and costs. As we have heard, the bill is a response to poor historic practices in the funeral industry.

Although we welcome the introduction of the inspection regime, we consider that the package of measures in the bill can be strengthened through swift introduction of licensing. Licensing will ensure that certain standards have to be met, and it will mean that we do not have to rely on existing voluntary schemes and codes of practice that have no effective sanctions for non-compliant businesses.

Licensing also has the potential to address rising funeral costs. Funeral industry figures reveal healthy profits and a sector that is continuing to grow. The figures for one company, Dignity plc, show that, for crematoria, underlying profit as a percentage of revenue was 53 per cent in 2014. Revenue from funeral services was £184 million and underlying profit was 36 per cent. Meanwhile, Fraser Sutherland of Citizens Advice Scotland told us that in 2014-15 it had a 35 per cent increase in the number of clients who were concerned about funeral issues and affordability, with the average cost of a funeral now being £3,550.

The cost of funerals can vary from street to street in a single town. We consider that a licensing scheme has the potential to require the funeral directors to display tariffs. That, we believe, would make it easier for people to make an informed choice at what is an extremely emotional time for a bereaved family.

Costs across local authorities vary widely, too. The Western Isles Council charges £694 for purchase of a lair and internment, whereas East Dunbartonshire Council charges £2,785. We found that the reasons for that are varied and complex, but cross-subsidy of other services could be a factor. We welcome the Scottish Government’s commitment to requiring local authorities to publish their costs online, as some do currently. We also thank the Scottish Government for providing the committee with an update on its review of funeral costs and its development of a successor benefit to the Department for Work and Pensions funeral payment.

In the short time that I have left, I will touch briefly on sustainability of burial grounds. Reuse of lairs is essential if burial is to continue as an option in the future. It will be for burial authorities to make best use of the new powers. We welcome the ending of the sale of lairs in perpetuity and consider the introduction of a new limit of 25 years in the first instance as appropriate.

In conclusion, we support the general principles of the bill and look forward to the Scottish Government addressing the technical points that we have raised.

Photo of Jenny Marra Jenny Marra Labour

I rise to open for Scottish Labour, which will support the general principles of the bill at decision time.

The legislation that has been in place for burial and cremation is outdated now. As the minister said, the previous legislation that was passed on the subject was the Burial Grounds (Scotland) Act 1855. This is our chance to update our law and guidance for all those involved, including funeral directors, local authorities and the industry of burial and cremation.

The act of burial or cremation is such an important time in many families’ lives, following the sad loss of a loved one. It is important in our civilised society that we get those things right. The bill comes at an appropriate time because we know that, in recent years, we have not always done so. Just last year we heard about the tragic case of Ciaran Williamson, an eight-year-old boy who was crushed and killed by a gravestone that fell on him as he played with his friends in Craigton cemetery. That tragedy is unfortunately not an isolated incident—a teenager was trapped and injured by a gravestone in the same graveyard five years previously, and it is estimated that there are more than 20,000 stones that are damaged, unstable and potentially hazardous in graveyards throughout Scotland. I am sure that every MSP in the chamber has only to think of their own constituency and local community where gravestones are starting to crumble and fall, posing a hazard.

The bill comes at a time when we need to manage burial grounds better, and we have the chance to redesign the supply of burial space and put in place licensing codes of practice and regulation. The cases of children and young people being hurt by gravestones are concerning, as many of our burial sites have fallen into disrepair. In Burntisland, a 900-year-old church was granted funding from the Heritage Lottery Fund to preserve the church itself and the graveyard, and the rich cultural heritage that the area holds. Our graveyards can be our heritage. In Dundee, the Mains castle graveyard in Caird park was falling apart in 2013, and it took historians and local groups to highlight not only the danger that the crumbling stone posed, but the need to preserve local social history and local records.

The bill will support burial authorities in managing and maintaining graveyards. At present, there is no single source of guidance, and there is a lot of uncertainty about what can be done and by whom. We know that, after about 25 years, many graves are unfortunately no longer visited. If friends and family are no longer visiting the graveside to see the damage that weather and temperature have done to stones and memorials, we need another authority to step in to ensure that sites are safe and well maintained.

Space is becoming an issue for some local authorities, particularly in the islands. Available land for burial is decreasing, so we need to ensure that we have a long-term sustainable plan for burial grounds, including and maintaining the option for burial.

I turn to funeral costs, which Kevin Stewart and the minister have addressed. The cost of a funeral, as we all know from the very good work that CAS does and from our surgeries and representations from our constituents, is a worry for many families throughout Scotland. Figures from the accounts of Dignity, the large American company that owns many of our crematoria, show that between 2010 and 2014 its profits increased by 34 per cent. In Scotland, there are more than 1,000 funerals a week, and as Kevin Stewart has pointed out, the average cost of a funeral is £3,500. Some families have to resort to payday loans to pay for the funeral of a family member, and at a time of grief and loss, that is a huge burden on those who are already suffering from the worry of finding that money. Many families simply do not have it, and some have had to resort to the indignity of unmarked graves. By encouraging openness and transparency with regard to the true cost of funerals, we can begin to challenge that situation and ensure that every family is treated with dignity and fairness.

Just last week, Citizens Advice Scotland called on the Scottish and United Kingdom Governments to support those who are struggling to pay for funerals, and I welcome the Scottish Government’s decision to speed up its decision on funeral payments and meet the target of processing applications within 10 days. I have heard first-hand accounts of delays in DWP decisions on such applications, which lead to great stress about meeting funeral payments, so I look forward to the outcomes of the Scottish Government’s forthcoming national conference on funeral poverty and its consideration of the funeral bonds scheme, which I am sure could be a help to many people.

I thank the Health and Sport Committee in particular for its scrutiny of the very sensitive issue of baby ashes and crematoria. Scottish Labour welcomes the fact that the bill will complete 25 of the infant cremation commission’s 64 recommendations, and I thank the committee convener, Duncan McNeil, for speaking in detail and very sensitively about the issues that were raised. What happened with infant ashes should never be allowed to happen again, and we must ensure that women are at the centre of decisions that are made at what is a very difficult time. I welcome the minister’s commitment to lodging amendments at stage 2 to give women the time to make decisions after pregnancy loss.

I see that I am out of time. I will close my remarks there, Presiding Officer.

The Deputy Presiding Officer:

I can allow you a few more seconds.

Photo of Jenny Marra Jenny Marra Labour

I will continue with my remarks in my closing speech. Thank you.

Photo of Nanette Milne Nanette Milne Conservative

There has been a general welcome for the Scottish Government’s intention in the bill to

“create legislation which is fit for twenty-first century Scotland”,

because much of the law governing burial and cremation dates back well over 100 years and is increasingly unfit for purpose in today's society.

As we know, the Health and Sport Committee, as the lead committee for the bill, focused on the bill’s proposals for the burial and cremation of babies, foetuses and early products of conception. It will be appreciated that this is a very sensitive area, particularly in light of the major emotional trauma suffered by many parents who a few years ago became aware that they were unable to trace what had happened to the remains of their offspring after cremation. Those people, who are still very much affected by what happened, are concerned to ensure that the same does not happen to parents in future.

Being very mindful of how people felt, we did our best to take evidence as sensitively as we could. To that end, we received some evidence anonymously via email and telephone, and we had a very worthwhile private meeting with a number of bereaved parents, who contributed significantly to our understanding of the issues to be considered. The committee clerks were very sensitive in their approach to witnesses, and I, too, want to thank them for their painstaking work on the bill. I also thank all the witnesses, particularly those who were personally affected.

In my opening speech, I will focus on the burial and cremation issues that are dealt with in the Health and Sport Committee’s stage 1 report, while in my closing speech I will take a broader look at the bill. Although Scottish Conservatives will support the bill at stage 1, we have a number of concerns that I hope will be resolved by amendment at stage 2. In saying that, I appreciate the minister’s intention to lodge several significant amendments at that time.

The discovery in 2012 that cremation authorities in Scotland had different practices for the recovery of ashes from the cremation of babies, and the severe distress that that discovery caused bereaved parents, led, as we know, to Dame Elish Angiolini’s report on practice at Mortonhall crematorium and the establishment of the infant cremation commission chaired by Lord Bonomy, which examined the policies, practices and legislation related to the cremation of babies in Scotland and which reported its findings in 2014.

As Jenny Marra said, the commission made 64 recommendations, including on the appointment of an inspector of crematoria. It is expected that the bill will complete 25 of the commission’s recommendations, the majority of which are focused on providing a more constant and robust process for applying for the cremation of babies, foetuses and pregnancy loss.

A voluntary code of practice on baby and infant cremations was published last December, and the bill will make the code binding on relevant authorities in the funeral industry.

A key part of the bill is the definition of “cremation”; in particular, a definition of “ashes” will be key in order to establish a clear, unambiguous understanding of what is meant by the term. Lord Bonomy recommended that it should mean

“all that is left in the cremator at the end of the cremation process and following the removal of any metal”,

and the bill defines the term within the context of Lord Bonomy’s definition.

It is now expected that ashes will be recovered in most circumstances following infant cremation; if not, that will be investigated by the inspector of crematoria.

The historical practice by some cremation authorities of disposing of ashes without the knowledge or consent of bereaved parents has had a devastating and long-lasting impact. It is such an important and sensitive issue that the committees looking at the bill think it crucial that the Government’s policy on that should be set out clearly on the face of the bill, and that any aspect of the policy that is subject to subordinate legislation should be subject to the Parliament’s affirmative procedure. The Government’s commitment to amend the bill to that effect is welcome.

I do not have time to go into detail on all the other provisions of the bill, but I will touch on one or two. In relation to the disposal of pregnancy loss, it is clear that there needs to be a more sensitive and systematic approach across Scotland, treating the mother with dignity and understanding, and setting out clearly to her the various options available, as well as giving her time to come to terms with her loss. Likewise, with stillbirth and neonatal death, there is a real need for better engagement with bereaved parents, support in making arrangements for burial or cremation, and help with form filling at a time of distress and high emotion.

Application forms for burial and cremation need to be clear, sensitive and easy to understand if bereaved parents are to be expected to complete them. The development of statutory application forms is welcome, although I appreciate that there are some differences of opinion regarding the detail that are yet to be sorted out.

As I have tried to indicate, there are very real sensitivities around the issues that were discussed by the Health and Sport Committee in relation to the disposal of the remains of babies, foetuses and early products of conception. The bill goes some way towards ensuring that past bad practice will not recur, although it will need to be refined as it goes through the next stages of the Parliamentary process. I look forward to the minister’s stage 2 amendments.

I will finish at this point because, as I said at the outset, I will deal with some other aspects of the bill in my closing speech.

Photo of John Scott John Scott Conservative

We now move to the open debate. Mr Don will speak on behalf of the Delegated Powers and Law Reform Committee.

Photo of Nigel Don Nigel Don Scottish National Party

As you say, Presiding Officer, I speak in my capacity as convener of the Delegated Powers and Law Reform Committee. The committee has continuing concerns about the bill and accordingly agreed that I should contribute to the debate.

I begin by welcoming the Scottish Government’s willingness to respond to many of the committee’s comments on the bill. The committee raised concerns about the number of delegated powers in the bill relative to its size and considered that more detail should be set out on the face of the bill. Furthermore, the committee was concerned about a number of delegated powers in the bill that permit the creation of criminal offences in regulations. It encouraged the Scottish Government to revisit each of those powers to determine whether the offence could be included on the face of the bill, rather than in subordinate legislation.

The committee also commented on the selection of the negative procedure for a number of delegated powers, which was justified by the Scottish Government on the basis that consultation requirements would provide additional scrutiny. The committee did not agree that the presence of consultation requirements was an appropriate justification for selecting different parliamentary procedures. We are therefore pleased to see that the Scottish Government has been willing to commit to amend the bill to respond to almost all those concerns.

Section 65(1) of the bill provides that

“The Scottish Ministers may make a scheme for the licensing of funeral directors’ premises”,

and section 66(1) provides that

“The Scottish Ministers may by regulations make provision for or in connection with” such a scheme. I welcome clarification from the Government that it is now intended that a licence will be required by each funeral director rather than for the premises. Nonetheless, our concern is that the bill proposes to set out in secondary legislation an entire licensing regime for individuals who carry out business as funeral directors. In its report, the committee recommended that such a licensing regime should be set out more fully on the face of the bill, rather than being delegated in its entirety to subordinate legislation.

The Scottish Government’s response to the committee’s report expresses an intention to continue to provide for the licensing scheme in regulations and suggests that that will enable the licensing scheme to be developed on the basis of recommendations from inspectors and allow for consultation with funeral directors. In essence, the Scottish Government is not able to set out its policy on the licensing of funeral directors on the face of the bill, as that policy is yet to be fully developed. The committee finds that unsatisfactory. I note the earlier comments from Kevin Stewart on behalf of the Local Government and Regeneration Committee that that committee, too, would like a lot more detail.

The matter is important and will clearly have a significant impact on individuals operating as funeral directors. The approach also clearly contrasts with the approach that has been taken in relation to so many other licensing schemes, including most recently the scheme for the licensing of air weapons, where more detail regarding the operation of the licensing regime was set out in primary legislation.

The committee recognises that there is room for some matters of detail around the licensing scheme to be left to secondary legislation, but it considers that the majority of those matters should be set out on the face of the bill, given their significance. Those people who will be covered by the licensing scheme should be able to understand that scheme, and members should be able to understand the nature of the licensing scheme that they are being asked to agree to.

I note the minister’s earlier comments but reflect that section 61, which is about inspections, is still very general in its terms, simply saying that

“Ministers may by regulations make provision for or in connection with ... inspections of burial grounds ... crematoriums and ... funeral directors”.

We could still do with some detail as to what that is going to mean.

The committee asks the Scottish Government to reflect again on its approach to the licensing scheme and strongly advocates that it include more detail of the scheme on the face of the bill.

The committee will be interested to hear the Scottish Government’s further reflections on the matter and in light of those further thoughts we intend to return to the issue.

Photo of Dennis Robertson Dennis Robertson Scottish National Party

I found the meetings of the Health and Sport Committee on the bill difficult because we were talking about something that is quite close to me as an individual and as a parent. What I found difficult was how emotive it was. Those giving testimony at committee were very brave because it is difficult to talk about the pain of loss without being emotive.

I think that the bill is going to go a long way towards ensuring that parents who, in the future, experience loss, including loss in early pregnancy, which the bill encompasses, will have the support and the knowledge that they need.

I find the term “disposal of remains” very difficult—it is difficult to say, even. There must be a better phrase or a better way of talking about it. I think that the minister referred to giving a woman who has experienced pregnancy loss time to choose what to do. Maybe that is a better way of talking about it.

A lot of positive things came out of the evidence sessions. I was gratified to hear the funeral directors themselves coming together and acknowledging that things could be better. Standardising the forms will help bereaved parents. The last thing that a bereaved parent requires is a form to fill out—a form that they might find extremely difficult to complete. One of the things that we discussed in committee was that funeral directors themselves can help in such areas—that came out very powerfully. They deal with such situations on a regular basis, so they can take the bereaved parents through the form. I absolutely agree that the bereaved parents will have to sign the form to ensure that the information on it is correct, but funeral directors’ sensitivity and respect give comfort to bereaved parents at a time of great loss.

The bill contains many areas that require tightening up. I congratulate the minister on saying that she will lodge various amendments at stage 2. To me, that shows a Government that is listening not just to the committee’s needs and Lord Bonomy’s recommendations, but to the needs of the grieving parents who came and gave evidence to the committee. I congratulate the minister on her sensitivity and her respect for the people who came to the committee and aired their views regarding their loss. I look forward to going over some of those aspects at stage 2. In saying that, I am sure that I will still find it incredibly emotional.

The bill requires to be passed.

Photo of Lesley Brennan Lesley Brennan Labour

Very few of us plan and discuss our intentions for when we pass on or, importantly, how we will pay for the arrangements. My own parents are an exception—they have even picked their hymns. They were concerned about the cost of their funerals, and they bought funeral plans in 2010. I realise, however, that many people who do not have savings simply cannot afford to put money aside for a funeral. There is strong evidence regarding funeral poverty. I am in contact with the Dundee pensioners forum, and I am learning from its members’ experiences.

I welcome the Scottish Government’s announcement that it is to host the first national conference to tackle funeral poverty, but I feel that the minister has missed an opportunity to address the issue of funeral poverty in the bill. Even the Government consultation document failed to grasp the issue, by just focusing on local authorities publishing fees online and cost recovery, rather than the full cost of funerals.

The bill also ought to address the national assistance duty. A good friend of mine works full time but in a low-paid job and, about a year ago, he was consequently not eligible for a social fund funeral payment and could not afford to bury his mother. Due to the shame that he felt, he did not disclose that until a few months afterwards. He felt a huge amount of guilt and shame at not being able to mark his mother’s life in the way that he wanted. He realised that he could not afford the cheapest funeral at the local funeral directors, and he did not know what to do.

My friend spoke to a bereavement counsellor, and it was only during his fourth visit that the counsellor mentioned the national assistance funeral scheme. He was not aware that local authorities had a duty, but would perform it only if nobody would claim—so he did not claim his mother’s body. Although he was grateful for the scheme, he felt the stigma of his mother being buried in what is colloquially known as a pauper’s grave. He did not know that he could have attended the burial.

In its consultation response, the Scottish working group on funeral poverty stated:

“the National Assistance funeral system is fundamentally not working and needs serious reform.”

A number of local authorities noted in their consultation responses their difficulties with the national assistance scheme and stated that people are getting in contact with them because of their families’ financial difficulties. I strongly urge the minister to consider the issue and perhaps lodge an amendment at stage 2 to ensure that the bill goes further than the current commitments and fully addresses funeral poverty.

I turn to the proposal to reuse graves. I understand the pressure on burial grounds, I appreciate that land is a finite resource and I note that Angus Council’s submission says that 25 to 30 per cent of lairs that it has sold have not been used. However, an analysis of the consultation responses shows that only 37 per cent of respondents were in favour of the proposal. I think that the convener of the Local Government and Regeneration Committee noted the low level of engagement on the topic; in total, there were only 180 consultation responses.

The financial memorandum is disappointing, particularly in the context of local government cuts, because it overlooks the impact on local government.

I fully support Nigel Don’s recommendations, which were discussed at the Delegated Powers and Law Reform Committee.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I congratulate Lesley Brennan on what I thought was a thoughtful and informative speech, to which I listened with interest. I enjoy having her sit with me on the Delegated Powers and Law Reform Committee, where she makes a significant contribution.

There are a number of things in the bill that are extremely interesting. I will start with the issue of the licensing of undertakers. My personal experience of undertakers is that they are people who, on the occasions on which I have had to engage their services, have behaved with absolute sensitivity and have done an absolutely excellent job. In one particular case, the circumstances were particularly delicate and difficult, and I thought that they did well.

Jenny Marra mentioned the Burial Grounds (Scotland) Act 1855. I think that all the provisions of that act are no longer current. I am not a legal eagle who is qualified to say that, but that is certainly what legislation.gov.uk says. However, it is not clear what has happened to many of the duties. It looks as though they have been supplanted and distributed across the legislative canon.

When the civil registration of births, marriages and deaths started in Scotland in 1855, and for quite some time after, the undertaker certified on the death certificate where the burial had taken place. Of course, that predated cremations so perhaps things were a little bit simpler then, but that means that some of the information about burials is available on the “Scotland’s People” website, which is run by the General Register Office for Scotland and provides information on births, marriages and deaths and other subjects that are of interest to genealogists and legal researchers. With that in mind, it strikes me that it might be a good idea for section 10 of the bill, on burial registers, to be constructed in such a way that local authorities would be able to use the General Register Office for Scotland as the publisher and custodian of the information on burial registers that the act will require to be prepared. A lot of the infrastructure is already there, and things could be arranged so that the requirement that people in the local area could still get free access could be met—I will not engage in the details on that.

However, I have a wee concern about publishing the details of where burials are, because the requirement does not appear to be time limited. There are some extremely old graveyards, and we might be creating a duty for some local authorities that it is almost impossible to deliver. Across from the back of the Parliament, we have the New Calton cemetery, which has been on the go for a couple of hundred years. Even the book of monumental inscriptions that the Scottish Genealogical Society has produced—it is a register only of gravestones, not who is buried where—runs to more than 100 pages of quite small print. I do not know what the state of the records on burials is, but I think that there are significant issues associated with that.

Sections 16 to 19 address private burials, which is good, but we must be careful to ensure that local authorities have a duty to act timeously in this area. I have personal experience of a friend who wanted a private burial. He knew that he was dying, but it took a year to arrange his private burial and he was clinging on at the end to ensure that he got it. That was partly down to SEPA rather than the local authority. There are genuine difficulties that I do not offer a solution to.

On section 12, the right to a lair is for someone resident in a council area. We might look at extending that slightly because I think that it is much more important to consider the person who died in that regard. The relatives might all live a long way away but might want to bury the deceased in the community in which they died, for the benefit of friends in that community. I think that there is a wee issue there.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

The Health and Sport Committee focused in particular on the provisions relating to pregnancy loss, stillbirth and infant loss, and heard a great deal about the poor practices of the past, which the bill must ensure are kept very firmly in the past. I thank everyone who gave evidence to us, particularly those parents who had suffered a terrible loss. I also want to mention not just those who gave evidence on the record but the several parents from SANDS Lothian whom I found extremely powerful and helpful in a private meeting that they had with three committee members.

We can try to emphasise with parents in those situations of loss, but we cannot know how it feels, which is why we must listen very carefully to what they say. One of the key points that came across in the meeting with SANDS Lothian was the importance of training for staff, because so much depends on that. Particularly after the loss, what the staff say to the woman affected is absolutely crucial. SANDS Lothian parents also emphasised the importance of developing specialist roles in midwifery, maternity and bereavement services, which I found very powerful evidence.

Like the others who gave evidence on the record, those parents were very concerned about the issue of ashes. I think that most of them agree about the definition in the bill, but one important point that came across from several of the parents is that we must ensure that it says on the statutory application forms for carrying out a burial that there is an expectation that ashes will be recovered. People were concerned that the policy memorandum emphasised that they might not be recovered—that was another key point that came across.

People also said that it was important to set out policies on the disposal of ashes. I think that the minister said that an amendment would come forward on that. I wonder whether there could be something in the codes of practice about processes and equipment in crematoriums so that we have the best possible procedures to ensure that the maximum amount of ashes are recovered.

On what happens on pregnancy loss, I was glad to hear the minister say that the woman would be at the centre of decision making. We as a committee were concerned about the timescales for decision making. I heard the minister say that there could be more time if circumstances allowed, but I hope that the flexibility will also allow less time. We heard that some women, for personal or cultural reasons, might want to make a definitive decision in a much shorter period than the seven days that are prescribed as the minimum period in the bill. I think that that is an important point.

In terms of the death of a child or infant, or a stillborn child, we should remember that that includes medical terminations after 24 weeks. I was glad to hear the minister say something that I think means that she is committed to achieving confidentiality in those circumstances, which is an issue that we were concerned about. NHS Lothian was concerned about the assumption of private family responsibility in those situations and said that that is not what happens in practice. It is important that the woman is supported in that situation, too, in terms of decision making and arrangements.

There was quite a lot of discussion about the statutory forms for carrying out a burial. I think that most of the people giving evidence thought that there should be different forms for different circumstances. The committee was concerned—perhaps the minister could refer to this in her winding-up speech—that there should not be an offence for helping someone to fill in a form. However, clearly it should be an offence if misleading or incorrect information is given.

We made the recommendation that the licensing of funeral directors should be on the face of the bill, but I imagine that because of the timescales that will not be possible. However, Willie Reid, who gave very powerful evidence, was very strong on the need for the licensing of funeral directors and emphasised that the register should be kept in electronic form.

As I said at the beginning, let us make sure that the poor practices of the past are consigned to the past as a result of the passing of the bill.

Photo of Willie Coffey Willie Coffey Scottish National Party

Burials and cremations might not be the most eye-catching subjects that we deal with in the Scottish Parliament, but they are a vital part of everyday life. It is fair to say that their rising cost is becoming a concern for the public. Outside of perhaps buying a house or paying for a wedding, paying for a funeral or a cremation is probably the next highest-cost item a family may face in their lives.

The industry is making handsome profits—they are up by 32 per cent to £85 million. Although the bill does not provide the power to intervene in the consumer market and regulate funeral directors’ service charges, it perhaps offers some hope for families in some local authority areas who pay incredibly high prices for lairs and for family interments in comparison with others.

As the convener of the Local Government and Regeneration Committee noted, we heard that the cost of buying a lair and paying for an interment service in the Western Isles is about £700, while the cost in East Dunbartonshire is nearly £2,800. I do not make that point to single out and criticise East Dunbartonshire; rather, I do so to bring it to the Scottish Government’s attention that such wide variations exist. If we can influence that through the bill, I hope that we will do so.

As a few members have said, the overall costs of the average funeral service are about £3,000. However, when the costs of providing a reception and buying a headstone are added on, the cost for families can rapidly increase beyond that. It should be no surprise that Citizens Advice Scotland told us that there has been a 35 per cent increase in the number of people seeking help with funeral issues and affordability.

I know that our Government is doing what it can through the use of the social fund to help families who are in difficulty, and I hope that the review of funeral costs being undertaken by the Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights will make further progress. The UK Parliament might also want to look at the escalating costs of funeral directors’ services to see whether regulation of the industry is required.

The Local Government and Regeneration Committee had pretty clear views on the issue of proximity—how far a crematorium should be from housing developments. We considered that the 200-yard distance should be maintained. It should also apply both ways, so that new housing cannot encroach within that distance of an existing crematorium. I understand that the Government’s view is that that is best left to local planning authorities, but I hope that any guidance notes that accompany the bill will at least express the opinion that the distance should be observed.

During the bill’s consideration in committee, I raised the issue of how record keeping might assist families who are keen to know as much as possible about their family history. From time to time, I visit Kilmarnock cemetery, where I occasionally come across headstones on which the names may—or may not—be connected to my family. It may come as a surprise to most people—although not to my colleague, Stewart Stevenson, who is sitting to my left—that there is no information to directly link a person who is buried in a cemetery in Scotland with the national death record to tell us who that person was.

As the generations move on, the risk is that the link will be broken completely, with no one surviving who can connect one with the other. I am really pleased that the Scottish Government will see whether burial and cremation records can be linked directly to the national death records for the first time in Scotland. That would be a simple but great step forward that would help current and future generations to be more certain about their family’s history in the communities where they lived.

The bill modernises aspects of the burials and cremations service and introduces modern and consistent practice where it can. Some key issues for the public remain—principally the rising costs of funerals, cremations and associated services. I hope that, when the bill comes back to us at stage 2, it will address those concerns in so far as our powers allow us.

Photo of Nanette Milne Nanette Milne Conservative

We have had a useful discussion of the bill, and there is clearly support across the chamber for its general principles. I will touch on the Local Government and Regeneration Committee’s stage 1 report, which considered the parts of the bill other than those that relate to pregnancy loss, stillbirth and infant loss.

I note the committee’s criticism of the bill as lacking ambition and its comment that a considerable amount of the policy remains to be developed and included in subsequent regulations, which makes detailed scrutiny difficult. However, there is broad support for most of the proposals.

There is agreement that all burial authorities, including private companies, should be placed under the same duties and have the same powers. However, it is uncertain whether the bill will assist with improvement in the management of burial grounds, particularly in relation to safely securing headstones and memorials. I note the recommendation that the bill should be amended to require a management scheme for burial grounds. The proposed measures to alleviate pressure on burial grounds by changing practice in relation to the purchase and use of lairs appear somewhat more controversial and will clearly require further discussion as the bill proceeds through Parliament.

The proposed duty on burial and cremation authorities, health boards and private healthcare providers to prepare records and maintain such records indefinitely, in the context of making arrangements for the disposal of pregnancy loss, is an important part of the bill. The consensus is that, in the 21st century, those records should be in electronic form. Although the Scottish Government agrees that that should be the ultimate aim, it is unwilling to require electronic records at present because, in the diverse funeral industry, there might not yet be adequate computerisation.

I agree with people who feel that, in the modern world, electronic records should be required. I would support a stage 2 amendment to that effect that allowed a transitional period, to ensure consistency and accuracy in the industry.

Given that, at present, funeral directors do not require any particular qualifications to set up a business or any inspection of their premises before they can work as funeral directors, I agree that, to ensure best practice, a licensing scheme is needed to cover the operation of funeral directors and their premises. The Delegated Powers and Law Reform Committee and the Local Government and Regeneration Committee are right to call for a requirement to make a licensing scheme for funeral directors to be put in the bill and to call for such a scheme to be implemented without delay.

I note the provision for ministers to issue codes of practice and to consult on draft codes of practice. I also note the Government’s commitment, which the committee welcomed, to amend the bill to require the approval of Parliament before any draft code can come into effect. However, I acknowledge the industry’s concerns about legislating for codes of practice instead of defining and introducing a new, separate code of standards that would run parallel to that of the National Association of Funeral Directors. That is because of the likely impact on funeral costs, which are already a significant issue for the increasing number of people who find that they are unable to meet such costs. More work is clearly required on that serious issue and on the transparency of funeral costs, albeit that the bill is not the vehicle for addressing those matters.

Legislation to modernise the law on burial and cremation is long overdue, and the bill deals with important and sensitive issues that have caused great and long-standing distress to many bereaved people. It is time that we had modern statutory provision for burial and cremation in Scotland. I agree with witnesses that the bill supports the objective of providing a modern and comprehensive legal framework, but a number of important provisions need clarification and amendment if we are to ensure, in so far as is possible, that previous poor practices are never repeated.

I look forward to further discussions at stage 2. In the meantime, I reiterate that Scottish Conservatives will support the general principles of the bill at decision time.

Photo of Jenny Marra Jenny Marra Labour

This has been a good debate with a thorough airing of some issues. The bill covers a wide variety of issues for Parliament’s consideration. I will touch initially on one that has not been discussed at length in the debate but which constituents have raised with the Scottish Labour Party and which is worth touching on: exclusion zones around crematoria.

The bill leaves that matter as part of the local authority planning process, and we very much agree with that decision. However, we have had representations from constituents on exclusion zones and on how proximity to crematoria can affect people, families and their properties. Nevertheless, we agree that the appropriate place for such decisions to be made is in the local planning process, which considers all local matters.

As someone who was involved in local issues to do with the baby ashes situation and as a Health and Sport Committee member, Malcolm Chisholm raised the important issue of training for staff who consult women who have lost babies or suffered pregnancy loss. That was an important point to make that is worthy of consideration. He also mentioned the importance of codes of practice in crematoria and the need for standardisation of those codes across the country. In addition, he raised the issue of licensing funeral directors.

Nigel Don made an important point about the number of delegated powers that are contained in the bill and the fact that more detail should be on the face of the bill. I trust that the minister will look at the Delegated Powers and Law Reform Committee’s recommendations, which she may take up at stage 2.

Kevin Stewart made the point that local authorities should have to publish their costs. We agree that that would be a useful way to proceed, and I am glad that such a provision is being included in the bill.

In their interesting speeches, Willie Coffey and Stewart Stevenson considered the possibility of burial and cremation records being linked to national records. We know that Scotland has a genealogy industry and that there are opportunities for people from America and Canada to come here to trace their ancestry. At a recent family funeral, there was an interesting discussion about which cemetery in Glasgow a great-grandfather was buried in, how such information can be obtained, how the internet and national records can be used to do that and where people should look. That elucidates the point that Willie Coffey and Stewart Stevenson made: there is an opportunity for business and for considering our social and cultural history, so the linking of records should be explored.

My colleague Lesley Brennan commented on funeral poverty. She is right that the bill does not address the issue, which we might come back to in the next session of Parliament. She spoke movingly about her friend’s situation on the death of his mother and made the point that the bill does not really deal with funeral poverty.

We very much welcome the fact that the Scottish Government has committed to holding a conference on funeral poverty, but perhaps the minister could reassure us that she has considered everything that she can do legislatively to regulate costs and the industry and has concluded that she does not have the powers for such regulation. I would be interested in hearing whether she thinks that there are opportunities to regulate the industry and costs. That might be a bold decision but, given the extent of funeral poverty in Scotland, we must look at the issue. I would be interested in her reflections on the matter.

Photo of Maureen Watt Maureen Watt Scottish National Party

I am grateful to parliamentary colleagues for their contributions to what has been an extremely useful debate. I welcome members’ recognition of the need to modernise the legislation in this area and I agree that the bill is important and will make positive changes.

I will consider carefully ahead of stage 2 all the points that have been raised today. It is clear that we will need to consider further some of the issues that have been debated, but I am pleased that there appears to be general support for the bill.

In opening the debate, I said that few of us relish talking about the subjects that the bill covers, but the issues are ultimately unavoidable. The average person organises no more than two funerals in their lifetime, and when we are called on to arrange the funeral of a loved one, very few of us have much experience to draw on, and we are rarely in the frame of mind to deal objectively with the planning and execution of the funeral process, which is sometimes complex and bureaucratic.

It is therefore important that the processes involved are as simple and straightforward as possible. It should be easy for those who are making the arrangements to understand the options that are available and what will happen to their loved ones’ remains. We should be able to rely on professionals throughout each stage of the process to give us clear, reliable and honest advice and to treat the deceased with respect. We should feel that we have been able to choose a dignified funeral.

It has become apparent that, in too many cases in recent years, those expectations have not always been met. The bill will change that by creating a robust and responsive system for burial and cremation that will support consistent high standards throughout every part of the process. The comprehensive modernisation and improvement of burial and cremation that the bill will bring about will create a system that is suitable for 21st century Scotland.

I am grateful for the points that members raised. Strengthening what happens with regard to pregnancy loss was raised in most contributions. I have said that we want to introduce as much flexibility on timescales as possible. Under current guidelines from the chief medical officer, the timescale is around six weeks, but we will introduce flexibility so that health workers and others who are involved will be very understanding about what happens. Throughout the process, we must be conscious of the fact that the woman’s wishes are paramount; that there must be confidentiality in what happens; and that, if the woman does not want to make any decisions, she should decide who will make decisions on her behalf.

I was interested in what Duncan McNeil said about cremulation. It is not a very nice word and I will look to see whether there is another way of explaining what is meant by it.

I assure Malcolm Chisholm and others that I am very concerned about the recovery of ashes. I specifically went to the back stage of a crematorium to see how remains were laid out in trays and the ashes recovered to the full extent to meet parents’ wishes.

I was interested to hear what many members said about record keeping. On reflection, I will ensure that electronic record keeping is in the bill, as long as we give sufficient time to funeral businesses that are not currently in a position to be able to take that on board.

I heard what members said about the licensing regime. The last thing that any of us would want to do is to set up a licensing scheme that means that further costs are passed on to those who are arranging a funeral. That is why I have said that the inspectors whom I or my successor will have the power to appoint under the bill should be able to give me or my successor guidance on what is required. We do not really have an overview of how well the funeral industry works. We hear about some cases in which it has not worked well at all; on the other hand, many members have said that they have been pleased with the service that funeral directors, whether large or small organisations, have given them.

It is important that we take stock of the situation across the whole industry and the whole country and that we take advice from the inspectors who will be in post to provide that. Already, the inspector of crematoria is in post and advice from that person is being taken on.

Also on licensing, through the bill, we can make sure that we are more open and transparent about the costs attributable to local authorities, which are often put onto the total cost of funerals, so that people know where those costs come from.

Jenny Marra mentioned crushing by falling headstones. The section in the bill about the reuse of lairs and bringing old burial grounds to life again is one of the ways in which we can ensure that those kinds of situation do not occur.

There is some misinformation about the reuse of lairs. It is not intended to reuse a lair unless it has not been used for at least 100 years. On the number of burial grounds where that might be viable, there are only a hundred or so lairs that have not been used for more than 100 years. It is not about reusing lairs that are still being visited or that have been used more recently than 100 years ago.

Of course, we will listen to organisations such as the Commonwealth War Graves Commission and, if they have any concerns, lairs will not be reused. However, reusing them is a way of revitalising old burial grounds and helping to preserve the history of those places.

Nigel Don pointed out that the bill is too bureaucratic in relation to secondary legislation. I have taken much of that on board. Some of the ideas on statutory duties that were initially in the bill will be taken out, some will be simplified and some will be put on the face of the bill.

Dennis Robertson spoke about the standardisation of forms. When I was in front of the committee, there was perhaps a misunderstanding. Of course, funeral directors and others will help applicants with the forms but it is the applicant who remains responsible.

I say to Lesley Brennan that consumer protection is reserved to Westminster and my colleague Alex Neil is taking forward the devolution of powers from the DWP to see what he can do to address funeral poverty.

The bill will overhaul the legal framework for burial and cremation to create a modern and robust system that will address current shortcomings. At the heart of the bill is modernisation of the legislation governing burial and cremation—that is what we want.

The bill will significantly improve procedures for burial and cremation and provide a system in which the public can have confidence. By strengthening the legislation, we will create a strong legal framework, establishing consistency and quality throughout the system.

I will look at what can go on the face of the bill and what will still require to be in secondary legislation. The bill is the result of collaboration with a wide range of stakeholders, and that will continue to be our approach as regulations and guidance are developed.

I believe that the bill will ensure that burial and cremation procedures are suitable for the needs of modern Scotland, and I call on Parliament to support the bill.

Photo of Tricia Marwick Tricia Marwick None

That concludes the stage 1 debate on the Burial and Cremation (Scotland) Bill.