The next item of business is stage 3 proceedings on the Burial and Cremation (Scotland) Bill.
In dealing with the amendments, members should have the bill as amended at stage 2—SP Bill 80A—the marshalled list, the corrections slip to the marshalled list and the groupings. The division bell will sound and proceedings will be suspended for five minutes for the first division on the bill this morning. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who want to speak in the debate on any group of amendments should press their request-to-speak buttons as soon as possible after I call the group.
Members should now refer to the marshalled list of amendments.
Section 1A—Meaning of “burial authority”
This group of amendments makes a number of changes to references to burial authorities. Most of the changes are consequential on amendment 2, which alters the definition of a burial authority.
The effect of amendment 2 is that a “burial authority” is defined as the person who has
“responsibility for the management of the burial ground”, rather than the person who owns the burial ground. This reflects that some burial grounds, particularly private burial grounds, are operated by someone other than the owner of the land. It is important that particular duties are placed on the operator, and most of the amendments in the group give effect to that.
Amendment 3 provides a specific definition of “burial ground” for the purposes of section 2, which places duties on local authorities to provide burial grounds. The effect is to make it clear that a local authority is required to provide an open burial ground.
A number of amendments are required where the bill places specific duties on local authority burial authorities. Amendments 4 to 10 make drafting changes in connection with the change made by amendment 2. Those ensure that the powers conferred on local authorities by sections 3 and 4 are not affected by the change in the definition of “burial authority” made by amendment 2.
Similarly, various drafting changes are required to references to the provision of a burial ground since it is not always the case that a burial authority is the person who provides a burial ground but is instead the person who has responsibility for the management of the burial ground. Amendments 11 to 17, 20 and 21 give effect to that.
Amendment 71 changes the definition of a “burial ground” that is given in section 75—the bill’s interpretation section.
Amendments 3 and 10 adjust the meaning of a “burial ground” in sections 2 and 4, so that those sections now contain a bespoke definition that is more limited than the definition elsewhere in the bill. Consequently, the general definition of “burial ground” requires to be adjusted so that it does not apply to sections 2 and 4. Amendment 71 makes that adjustment.
I move amendment 2.
Amendment 2 agreed to.
Section 2—Local authority duty to provide burial ground
Section 3—Provision of burial grounds outwith local authority area
Amendment 4 moved—[Maureen Watt]—and agreed to.
Section 4—Joint provision of burial grounds
Amendments 5 to 10 moved—[Maureen Watt]—and agreed to.
Section 7—Right to erect building
Amendment 11 moved—[Maureen Watt]—and agreed to.
Section 8—Application to carry out burial
Amendment 12 moved—[Maureen Watt]—and agreed to.
Section 10—Burial register
Amendment 13 moved—[Maureen Watt]—and agreed to.
Section 12—Right of burial
Amendment 14 moved—[Maureen Watt]—and agreed to.
Section 14—Register of rights of burial
Amendment 15 moved—[Maureen Watt]—and agreed to.
Section 15—Right to erect headstone
Amendment 16 moved—[Maureen Watt]—and agreed to.
Section 20—Fees for burials
Amendment 17 moved—[Maureen Watt]—and agreed to.
Group 3 is on cremation authority duties. Amendment 74, in the name of the minister, is the only amendment in the group.
Group 4 is on location of crematorium. Amendment 75, in the name of the minister, is the only amendment in the group.
The purpose of amendment 75 is to remove from the bill section 42A, which was inserted at stage 2.
I said at stage 2 that I considered the kind of statutory minimum distance for which the amendment provided to be unnecessary, because decisions about the location of crematoriums are rightly a matter for the planning system, as are decisions about development adjacent to crematoriums. A statutory minimum distance is inflexible and arbitrary and is an unnecessary blunt solution. It has the potential to undermine the functioning of the planning system and place unnecessary restrictions on the provision of crematoriums and housing.
Throughout the bill’s passage, I have said that the proposed location of a new crematorium is a matter properly dealt with by the planning system, and I continue to be of that opinion. All planning applications are determined on their individual merit, in accordance with the local development plan and all material considerations. What may be regarded as a material consideration is a matter for the planning authority concerned and might include matters such as privacy and decency, preservation of sanctity and tranquillity, traffic and increased footfall, which are all relevant to crematoriums.
The location and individual characteristics of the site and proposal are likely to be key considerations in decision making. None of that would be taken into account by a statutory minimum distance, which would simply be a rigid and arbitrary distance with no particular justification or purpose.
I understand the concerns that are at the root of section 42A. It is important that crematoriums are tranquil places of peaceful contemplation. Nonetheless, I continue to believe that the best way to achieve that is through the planning system. A 200m distance offers no guarantee of that. Indeed, section 42A says nothing about any kind of development other than crematoriums and housing, and it would not necessarily do anything to offer any kind of screening for the crematorium or take account of any other local circumstances.
In seeking to remove section 42A from the bill, I commit the Scottish Government to providing specific policy advice for planning authorities to assist in considering planning applications for crematoriums as part of the next revision of Scottish planning policy. Scottish planning policy promotes consistency while allowing sufficient flexibility to reflect local circumstances. That would be the most effective way in which to ensure that planning authorities consistently consider relevant issues in the context of specific locations when they assess development applications for crematoriums.
Planning policy of that type is already provided by Scottish planning policy in relation to other types of development. For example, Scottish planning policy advises planning authorities to consider buffer zones between dwellings and some waste management facilities, and it advises on preferred distances for particular types of facilities. Similarly, community separation is one of the factors to be considered when planning for the location of onshore wind farms.
I know that some people are concerned that Scottish planning policy is not statutory. However, the Town and Country Planning (Scotland) Act 1997 requires planning applications to be determined in accordance with the development plan
“unless material considerations indicate otherwise.”
As a statement of ministers’ priorities, the content of Scottish planning policy is a material consideration that carries significant weight. Setting out guidance about the location of crematoriums in Scottish planning policy will ensure that all planning authorities will consider crematoriums in a consistent way. It will allow local circumstances to be taken into account, which means that planning decisions about crematoriums will reflect local circumstances in a way that would not be possible with a statutory minimum distance.
Such issues are currently dealt with well by the planning system, and that is an appropriate way to address the issues that have been raised in relation to crematoriums. I want decisions about where crematoriums are located to be handled sensitively and consistently by the planning system, and I believe that the approach that I have outlined will achieve that.
I move amendment 75.
I am concerned about amendment 75. The minister went on at length about planning policy. We would all hope that the planning authority would make reasonable decisions when considering a planning application. It would be perfectly reasonable for the planning authority not to consider a planning application for either housing or a crematorium within 200m of each other. However, we know that planning decisions are not always made properly. Section 42A, which is about to be removed, would give protection to residences and crematoria.
Congestion could cause huge problems for people who live close to crematoria, such as road safety issues for young families. In addition, the noise and disruption caused by residents could upset people who are attending a funeral at a crematorium.
I sincerely hope that it would be, but in the past we have seen local authorities make decisions that fly in the face of such concerns. Even in spite of campaigns by residents, planning permission has been granted for things that we would not see the sense of.
Another issue is at stake. Presiding Officer, you have spoken on the record about the role of committees in holding the Government to account. This is one of the rare occasions on which a committee has agreed to an amendment at stage 2 against the will of the Government and shown that committees actually have some teeth. It would be a bit sad if at stage 3 the Government used its weight and power in this chamber to overrule the Local Government and Regeneration Committee on one of the few times when a committee has raised its voice and held the Government to account.
The amendment that inserted section 42A at stage 2 was lodged to address an issue that had been identified by the Local Government and Regeneration Committee when it considered the bill at stage 1. During that stage, we looked at the Cremation Act 1902. Section 5 of the 1902 act, “Site of crematorium”, stipulates:
“No crematorium shall be constructed nearer to any dwelling house than two hundred yards, except with the consent, in writing, of the owner, lessee, and occupier of such house, nor within fifty yards of any public highway, nor in the consecrated part of the burial ground of any burial authority.”
In their written and oral evidence to the committee, a number of people quite clearly asked not only for that limit to be included in the bill, but that it should be modernised. The Federation of Burial and Cremation Authorities said:
“Rather than have the 200-yard and 50-yard rules removed, the FBCA would like legislators to take action to protect these vital locations and prevent the siting of subsequent developments literally up to the curtilage of the crematoria grounds.”—[Official Report, Local Government and Regeneration Committee, 9 December 2015; c 3.]
That led the committee to say in its stage 1 report:
“The overwhelming majority of the evidence we received asked for the ‘200 yard rule’ to be retained and strengthened. We also noted the substantial confusion around how this rule works in conjunction with the planning system. We find it undesirable that the Bill does nothing to tackle this level of confusion.”
“We therefore recommend the Scottish Government takes cognisance of the issues raised and, in discussion with planning colleagues, brings forward an amendment at stage 2 which addresses these concerns.”
The committee was concerned enough to make that recommendation in its report, whereby it asked the Government to address the issue at stage 2. The Government did not lodge an appropriate amendment at stage 2 and, today, it seeks to remove section 42A, which my stage 2 amendment inserted in the bill.
We also received written evidence from Falkirk Council, which has the experience of having housing built up to 110 yards from an existing crematorium. In its submission, it says:
“We disagree with removing the existing provision which restricts the proximity of new crematoria to housing. In our view there are risks involved in reducing or removing the 200 yards limit. In the case of Falkirk Council’s crematorium, an extensive area of new housing has been developed to within 110 yards of the crematorium buildings.”
It goes on to say that the
“degree of separation should not be determined by the planning process alone, because policies and provisions in Local Development Plan can be overturned on appeal by developers.”
That is part of the issue. We need to be reassured that Scottish planning policy will address the issues that have been raised, but Scottish planning policy can be amended and changed, and the decisions of local planning authorities can be overturned by developers on appeal.
Therefore, it is clear that there is a need to retain in the bill provisions that protect not only crematoria, but local authorities in maintaining the barrier between crematoria and new housing developments against the wishes of developers.
I ask the Parliament to oppose amendment 75.
A number of issues have been raised. We often find that there is conflict between different pieces of legislation. In this case, the conflict is between the 1902 act and various pieces of planning legislation and guidance. I for one am always keen to ensure that there is no conflict between pieces of legislation, and I think that section 42A, which Mr Wilson’s amendment inserted in the bill at stage 2, would create such conflict. We should trust local planning authorities to take the decisions on such matters. After all, they are the folk who know the geography and topography of their areas.
Will Mr Stewart confirm that he was the convener of the Local Government and Regeneration Committee that produced the stage 1 report that asked the Scottish Government to consider the matter and to lodge an amendment to address the issues that had been raised by many of the witnesses from whom the committee took evidence?
I was the convener of the committee, and I suggested that that be looked at. Mr Wilson’s stage 2 amendment could have been better worded, if it was intended to deal with the conflict that exists between different pieces of legislation. His amendment referred only to housing; it did not mention commercial property. I think that the building of a factory next to a crematorium or the building of a crematorium next to a factory would present more of a problem than would the building of housing next to a crematorium or the building of a crematorium next to housing.
Beyond that, what would happen when an application was made to locate a new crematorium in an area where there is already a crematorium with housing around it? One of the best examples of that is here in Edinburgh, where there is housing right next to the crematorium.
Common sense should come into play here. The commonsense approach would be to allow local authorities to look at the geography and topography of a particular area in determining what it would be suitable to build in that area. We should deal with the issue through planning guidance, as the minister has suggested. We should put our faith in local councillors to take the right decisions in their areas.
It is true that local authorities agree with a minimum distance, but they believe that they should make the decision. The Institute of Cemetery and Crematorium Management supports the use of the planning system, as do local authorities, as I said, such as Glasgow City Council and Scottish Borders Council.
As some members have said, distance is arbitrary. There might, for example, be a dual carriageway between a crematorium and housing. Kevin Stewart made an important point about what other than housing might be built next to a crematorium. As members mentioned, there are crematoria that have housing right round their perimeters and they manage to exist perfectly well. Furthermore, what John Wilson has proposed does not apply to other developments—including larger ones—that may well be intrusive.
I ask the Parliament to support my amendment 75.
The result of the division is: For 61, Against 38, Abstentions 0.
Amendment 75 agreed to.
Section 46—Arrangements on death of adult
We come to group 5. Amendment 23, in the name of the minister, is grouped with amendments 24 to 27, 29, 31 to 33, 36, 38, 41, 43, 45 to 54, 91, 92, 55 to 57 and 60 to 68.
In themselves, the amendments in this group do not have any impact on the meaning of the sections to which they relate; they are technical drafting amendments to ensure consistency of language throughout the bill. I believe that, with the change from the term “disposal” to the phrase “burial or cremation” or “buried or cremated”, the language used is more appropriate and sensitive.
I move amendment 23.
Amendment 23 agreed to.
Amendments 24 and 25 moved—[Maureen Watt]—and agreed to.
Section 47—Arrangements on death of child
Amendments 26 to 28 moved—[Maureen Watt]—and agreed to.
Section 47A—Arrangements on termination of pregnancy after 24 weeks
Amendments 76 to 83 seek to make various changes to section 47A, which relates to a stillbirth that occurs as a result of a post-24-week termination, and their cumulative effect is to enable a health body to ask the woman what she wants to happen to the remains before the termination occurs. By virtue of amendment 77, health professionals must do that if they consider it to be in the woman’s best interests.
Amendment 84 adds after section 47A a new section that gives various powers to health authorities where they are authorised to make arrangements by section 47A. Powers rather than duties are used in the section to provide additional flexibility. The effect of that is that health authorities will be able to make arrangements for the disposal of remains when they are authorised to do so by virtue of section 47A.
Amendment 85 adds a new section after section 47A that will place a duty on health authorities to give a woman the opportunity to make a decision about what she wishes to be done with the remains following a post-24-week termination. That will have effect when it appears to the health authority that no decision has been made under section 47A. The new section allows women to make a range of decisions, including authorising the health authority to make the arrangements. When the woman does not wish to or is unable to make a decision, or when she does not inform the health authority of a decision, the health authority may make arrangements for the burial or cremation of the remains.
Amendment 86 inserts a further new section after section 47A. The effect of that is that a health body will be able to ask a woman if she wants to make a decision about arrangements for burial or cremation before the loss occurs in the case of a stillbirth. The health professionals must do that if they consider that it will be in the woman’s best interests to do so. The woman can choose to make the arrangements herself or to authorise the health body to make them. The woman will be able to instruct the health body to make the arrangements as soon as practicable after the loss occurs. Otherwise, the health authority must wait for seven days after the loss occurs.
Amendment 87 inserts a further new section after section 47A that sets out the process that a health body must follow when it is authorised before the stillbirth occurs to make arrangements for the burial or cremation of the remains. That authorisation is given by the woman by virtue of the section that will be inserted by amendment 86. If the woman has specified how she wishes the health body to make the arrangements, it must do as she has specified.
Amendments 88 and 34 make various changes to section 47B. Amendment 88 inserts a new paragraph so that section 47B has effect when it appears to a health body that no arrangements have been made by virtue of the section inserted by amendment 86. That means that, when a health body does not ask a woman what she wants to happen to the remains before the loss occurs, it must do so after the loss occurs.
Amendment 34 adjusts the drafting in relation to requirements around the keeping of information. That does not alter the effect of the provision; it provides consistency with similar duties throughout the bill. Amendment 37 replaces a reference to the “appropriate” form with the “prescribed” form in section 47C.
Amendment 39 adjusts the drafting of section 47D so that a health body can make arrangements for the burial or cremation of remains when it appears that no arrangements have been made or are being made. Amendment 40 adjusts the drafting of section 48 so that it refers to the burial or cremation of remains rather than their disposal.
Amendment 89 inserts a new section after section 49 that provides health bodies with various powers in relation to the burial or cremation of remains of a pregnancy loss that occurs before or on completion of the 24th week. The new section applies when a health body is authorised to make arrangements by virtue of section 54A. It allows health bodies to make the arrangements and requires them to comply with any wishes that the women might express about the burial or cremation of the remains. If a woman authorises the health body to make the arrangements for burial or cremation of the remains as soon as practicable after the loss occurs, it must do so. Otherwise, it must wait for seven days after the loss occurs before making arrangements.
Amendment 90 adds an additional criterion to the circumstances that must be met before section 50 can have effect. It must appear to the health authority that no arrangements for the burial or cremation of the remains have been or are being made.
Amendment 93 provides a definition of appropriate health authority for the purposes of section 52A. It is given the same meaning as it has in section 56.
Amendments 58 and 59 adjust the drafting of section 54 to add additional criteria to the circumstances that must be met before section 54 applies. Those are that it appears to the health authority that no arrangements for the burial or cremation of the remains have been or are being made.
Amendments 94 to 96 make changes to section 54A. Amendment 94 adjusts the criteria that must be met for the section to apply to include the woman being in the care of a relevant health body, clarifying when the section will apply.
Amendment 95 makes changes to section 54A so that a health body may ask a woman what she wishes to happen to the remains of a pregnancy loss before that loss occurs. In some instances, that may be preferable for the woman, and the amendment ensures that it can happen. Where the woman makes a decision, the health body must follow her wishes.
Amendment 96 moves section 54A to after section 49, placing it next to other provisions dealing with the same subject. Amendment 97 changes the section of the bill to which section 55 applies. That has the effect of requiring health authorities to keep a register of information in relation to sections 47A to 54, which cover pregnancy loss on or before 24 weeks, post-24 week terminations and stillbirths.
Where it is known that a pregnancy will result in a stillbirth or will be lost, amendments 86 and 95 place health bodies under a duty to give a woman the opportunity to say before the pregnancy ends what she wishes to happen to the remains. Importantly, health bodies are given the discretion to decide whether it is appropriate to ask a woman in advance or whether it is better to wait until the loss has occurred.
In some instances, a woman who knows that she will lose her baby may wish to start making arrangements in advance. In other instances, the trauma of being told that her baby will be lost may be so great that it would be better for her to make the decision after the loss occurs.
The approach that is set out in the amendments means that a health body can act accordingly depending on the interests of each individual woman who experiences such a loss. If the health body considers that it would be better not to ask a woman before the loss occurs, it is nonetheless still a duty to give the woman the opportunity to decide after the loss occurs.
Amendments 86 and 95 have the effect of allowing health professionals to use their judgment as to whether it is better to raise this difficult subject with a woman before or after the loss occurs. That approach ensures that a woman’s best interests are always the priority. It will always be the woman who makes the decision.
The intention of amendments 86 and 95 is to ensure that no woman is required to make that decision before she is ready to do so. The amendments provide that flexibility and person-centred approach.
The effect of amendments 86A and 95A in Malcolm Chisholm’s name would be to remove the health body’s discretion, meaning that, in every instance where it is known that a pregnancy will end or a stillbirth will occur, the health body must ask a woman what she wants to happen to the remains, regardless of whether the woman is ready to make that decision.
I think that that approach is unnecessarily rigid, removing the health professionals’ ability to judge whether a woman should be confronted with the decision before the loss has occurred. If amendments 86A and 95A are agreed to, it will mean that every woman will be asked what she wants to happen to the remains of her pregnancy loss or stillborn baby while she is still coming to terms with the fact that her baby has died.
I move amendment 76.
At stage 1, the minister said—and I totally agreed with her—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.”—[Official Report, 11 February 2016; c 86.]
In committee, I was concerned that the following words, which are in three of the amendments in this group, appeared in relation to another situation:
“If the appropriate health body considers that it would be in the woman’s best interests to do so”.
The situation that was discussed in the Health and Sport Committee is one in which six weeks have elapsed and a decision has to be made about what happens to the remains. The minister argued that those words are appropriate because perhaps, in that situation, the woman should not be asked.
I reluctantly accepted that explanation, but when I saw the words attached to the situations that are described in amendments 77, 86 and 95, I was alarmed. It seemed that the principle of deciding the woman’s best interest in a paternalistic way was being extended to those new situations. At the Health and Sport Committee, the minister said:
“If the woman is still involved in the process, it will be entirely her view that is taken into account.”—[Official Report, Health and Sport Committee, 8 March 2016; c 15.]
It seemed to me that there was a potential loophole if, in various situations, the authorities could decide on the woman’s behalf.
If the minister can confirm that it is purely a matter of timing, that of course completely changes the situation, but it is not apparent from the amendments, which were lodged on the last possible day, that that is the case. If the minister can confirm that it is purely a matter of timing and that, in those situations, the woman will always be asked, possibly after rather than before the pregnancy loss, I shall of course not move amendments 86A and 95A.
The minister referred to section 54A, which is being moved to another place in the bill. I welcome the provision in section 54A, which puts a duty on health boards where pregnancy loss is likely to occur. As I am sure many members know, there are many occasions when women are sent home knowing that their pregnancy is likely to end in a loss and those ladies and their families are given little choice. Section 54A will strengthen the power and increase the choice that those individuals and families have.
However, I note that the provision kicks in when the woman is “in the care of” the appropriate health authority. I seek clarification on that. At what point is it deemed that a woman is “in the care of” the appropriate health authority? Is it at a 12-week scan or once the general practitioner is informed that the lady is pregnant? At what stage do the obligations kick in? Perhaps a little more thought is needed on that, particularly for women and families who suffer from recurrent miscarriages and losing their unborn children.
I welcome the minister’s amendments in the group. I share Malcolm Chisholm’s concern and look forward to hearing what the minister says about his amendments 86A and 95A. The Health and Sport Committee discussed the issues with bereaved parents. They are obviously sensitive issues. Those people feel strongly that the women’s interests should be put first and that matters should be discussed with them so that they can make up their minds when they feel able to do so. That is the right way to go, so I am happy with the minister’s amendments.
All provisions relating to pregnancy loss and stillbirth are based on flexibility and the centrality of the woman in the decision-making process. The amendments that are proposed by Malcolm Chisholm would remove that important flexibility and would not best serve the interests of the woman who has just learned that her pregnancy will be lost. It is absolutely about timing. I believe that my amendments provide that timing.
Bob Doris introduces an issue that does not relate to these particular amendments and is more about early pregnancy loss.
I am happy that Nanette Milne believes that my amendments serve their intended purpose.
Amendment 76 agreed to.
Amendments 77 to 79, 29, 80, 30 and 81 to 83 moved—[Maureen Watt]—and agreed to.
After section 47A
Amendments 84 and 85 moved—[Maureen Watt]—and agreed to.
Amendment 86 moved—[Maureen Watt].
Amendment 86A not moved.
Amendment 86 agreed to.
Amendment 87 moved—[Maureen Watt]—and agreed to.
Section 47B—Arrangements on still-birth
Amendments 88 and 31 to 35 moved—[Maureen Watt]—and agreed to.
Section 47C—Section 47B: power of appropriate health body
Amendments 36 to 38 moved—[Maureen Watt]—and agreed to.
Section 47D—Section 47B: general power of appropriate health body
Amendment 39 moved—[Maureen Watt]—and agreed to.
Section 48—Disposal of remains: nearest relative
Amendments 40 to 42 moved—[Maureen Watt]—and agreed to.
Section 49—Sections 46 and 47: application to sheriff
Amendments 43 and 44 moved—[Maureen Watt]—and agreed to.
After section 49
Amendment 89 moved—[Maureen Watt]—and agreed to.
Section 50—Arrangements on pregnancy loss on or before 24 weeks
Amendments 90, 45 and 46 moved—[Maureen Watt]—and agreed to.
Section 51—Change in arrangements
Amendments 47 and 48 moved—[Maureen Watt]—and agreed to.
Section 52—Individual authorised to make arrangements
Amendments 49 to 54 moved—[Maureen Watt]—and agreed to.
Section 52A—Duty to transfer remains
Amendments 91 to 93 moved—[Maureen Watt]—and agreed to.
Section 53—Appropriate health authority authorised to make arrangements
Amendments 55 to 57 moved—[Maureen Watt]—and agreed to.
Section 54—Duty of appropriate health authority
Amendments 58 to 66 moved—[Maureen Watt]—and agreed to.
Section 54A—Duty of health body where pregnancy loss likely to occur
Amendment 94 moved—[Maureen Watt]—and agreed to.
Amendment 95 moved—[Maureen Watt].
Amendment 95A not moved.
Amendment 95 agreed to.
Amendment 96 moved—[Maureen Watt]—and agreed to.
Section 55—Duty to keep a register
Amendments 67 and 97 moved—[Maureen Watt]—and agreed to.
Section 56—Disposal of remains: duty of local authority
Amendment 68 moved—[Maureen Watt]—and agreed to.
Section 62—Powers of entry and inspection
Amendments 98 and 99 moved—[Maureen Watt]—and agreed to.
Section 63—Section 62: offences
Amendments 69 and 70 moved—[Maureen Watt]—and agreed to.
After section 66B
“I support the principle behind the amendment.”
Therefore, it is really welcome that the Government will support amendment 1.
The minister also said:
“Funeral costs have been debated repeatedly throughout the bill’s passage. The bill’s central purpose is to improve legislation governing burial and cremation”.—[Official Report, Local Government and Regeneration Committee, 9 March 2016; c 30, 29.]
However, she added that she remained of the view that the bill was “not the right vehicle” to tackle funeral poverty.
The bill’s central purpose, which I do not disagree with, does not exclude the provision of guidance on funeral costs and the desirability of such costs being affordable. Therefore, I welcome the Government’s support for the amendment at stage 3.
The minister did not make any comments about the drafting of the amendment that I lodged at stage 2; rather, she suggested that such a provision did not need to be included in the bill. I felt differently, especially having read the consultation responses, so I lodged the amendment again.
In the consultation document on the bill, there was a section on funeral poverty in which the minister sought answers to questions. The questions primarily focused on local authorities, but the final question asked:
“What else could be done to reduce funeral costs and ensure that they remain affordable for everyone?”
Amending the bill to incorporate a duty to produce guidance will improve the current position. The consultation responses suggested that, in some areas, third sector organisations have produced guidance on how to make funerals more affordable. However, coverage is patchy, and the amendment will ensure consistency of information throughout Scotland.
Citizens Advice Scotland states that 19 per cent of issues raised with Scottish citizens advice bureaux regarding bereavement relate to funeral poverty. I welcome the Government’s support because, if the amendment is agreed to, it will be a start in eradicating funeral poverty.
I move amendment 1.
I am pleased that the Government will accept amendment 1. We have some opportunities coming up, as has been discussed at the Local Government and Regeneration Committee and the Welfare Reform Committee, and the Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights, Alex Neil, has said:
“new powers over funeral payments will give us the opportunity to set up a benefit which is simpler and more streamlined.”
The committee heard evidence about private companies and the profitability of funeral services and cremation in particular. I pay tribute to CAS for its work in the area, and I hope that the Parliament will accept the amendment.
There is no doubt that funeral costs continue to be an area of concern for many people, and the issue has been debated repeatedly throughout the bill’s passage. Where possible, the bill supports greater transparency of costs. For example, the bill was amended at stage 2 to require local authorities to publish full details of their burial and funeral costs.
Funeral costs are complex as they are made up of a number of different elements. I know that it can sometimes be difficult to understand exactly what is included in those costs. I believe that it is important that costs associated with funerals are as transparent as possible. The approach should include clear pricing structures and clarity about which elements of a funeral are necessary and which are not.
There has been much discussion of making funeral costs affordable. That is undoubtedly an important aim, but it is not necessarily straightforward. For example, a person may choose a particular type of coffin or a particular floral tribute that increases the overall cost of the funeral. Numerous factors can affect the real cost of a funeral.
The Scottish Government has worked closely with funeral directors, burial authorities and cremation authorities in developing the bill, and will continue to do so when it is implemented. In particular, I am keen that funeral directors’ costs should be more transparent and that people should know that they can choose certain elements but not others when they are arranging a funeral. That area will be addressed in implementing the legislation.
The Scottish Government is already working to address funeral costs generally and funeral poverty specifically. The Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights, Alex Neil, is leading on important work to address funeral costs and funeral poverty. He has recently published advice for the general public about what they should do when they are faced with organising a funeral. That includes advice on costs, including ways to reduce costs while still providing a dignified and respectful funeral.
The cabinet secretary has also commissioned work on funeral poverty, and a report has been published. In response, the cabinet secretary is undertaking a range of work to address funeral costs, including speeding up the time that is taken to make decisions about funeral payments, once responsibility for that area has been devolved to Scotland. Officials who are developing policy on those issues have engaged with a wide range of experts, including academics from the University of Bath, as Lesley Brennan has mentioned in previous debates. That is important work that should have a significant impact on the underlying causes of funeral poverty in the long term.
Given the work that the Scottish Government is already doing to address funeral costs and our intention to continue working closely with the funeral industry on the issue after the bill comes into force, I believe that Lesley Brennan’s amendment 1 would place an important marker in the bill, and as such I am pleased to support it.
I thank the Government for agreeing to support amendment 1. We need to recognise that this is the start of the process of eradicating funeral poverty in Scotland. During stage 2, I recognised that power over social fund funeral payments and other consumer protection measures will come through the Scotland Bill. However, the provision on guidance that amendment 1 sets out in the bill is an important first step in eradicating funeral poverty. I welcome the Government’s support for my amendment.
Amendment 1 agreed to.
Section 73—Regulations: consultation requirements
Amendment 100 removes section 73(6), which sets out consultation requirements in relation to regulations made about the licensing of funeral directors. The subsection is no longer required because amendment 101 inserts a new section that sets out fuller consultation requirements, as well as placing additional duties on Scottish ministers in relation to developing a licensing scheme.
Amendment 101 inserts a new section after section 73 that sets out a range of requirements in relation to any regulations made by Scottish ministers under section 66(1) about the licensing scheme for funeral directors. Before laying a draft of the regulations before Parliament, Scottish ministers will be required to prepare a draft of the regulations that they propose to make on which they must consult persons representing funeral directors and anyone else whom they consider appropriate. Ministers must have regard to any representations made during the consultation and must then lay the draft regulations before the Scottish Parliament. In addition, ministers must also lay a document that sets out how representations made during consultation have been taken into account in finalising the draft laid before the Parliament.
The convener of the Delegated Powers and Law Reform Committee wrote to me after stage 2 to set out the committee’s on-going concerns about the power in the bill to make regulations about the licensing of funeral directors. I am confident that the original approach offered sufficient detail and safeguards, but I acknowledge the committee’s concerns and have lodged these two amendments in response. I hope that the amendments reassure the committee and other members.
I move amendment 100.
I am, of course, the aforementioned convener of the Delegated Powers and Law Reform Committee, which welcomes the amendments as a response to its concerns.
Section 66 contains a revised power allowing the Scottish ministers to make regulations for or in connection with a licensing scheme for funeral directors’ businesses. That power was subject to the affirmative procedure. Given the extent of the power and its potential impact on individuals, the committee encouraged the Scottish Government to lodge, at the very least, an amendment to attach an enhanced form of affirmative procedure to the power, which amendment 101 does.
However, the committee continues to believe that licensing regimes ought, as a matter of principle, to be set out substantially in primary legislation rather than delegated entirely to regulations. The committee accepts that some matters of technical or administrative detail relating to such schemes could appropriately be set out in regulations but is of the view that the delegation of power to create an entirely new licensing scheme in subordinate legislation—whether under this bill or any other bill—does not strike an acceptable balance between primary and secondary legislation.
Accordingly, the committee’s preference would have been for matters relating to the licensing of funeral directors’ businesses to be set out more fully on the face of the bill. The committee acknowledges the time constraints and appreciates that it has not been possible to develop such detail on the face of the bill. It therefore accepts that an enhanced form of affirmative procedure will enable the Parliament to scrutinise and influence the development of the proposals on licensing before the regulations are laid for approval in accordance with the affirmative procedure.
I see that the Minister for Parliamentary Business is here. It would have been helpful to the committee if there had been some recognised form of words about enhanced scrutiny to cover the issues involved in, for example, preparing a draft, consulting, laying a document that summarises representations and describing the changes in the affirmative procedure that are in front of us. I understand that we may not want such a form of words laid down in statute, but if we and the Government had such a form of words to refer to, it might make life an awful lot easier.
I am happy that the convener of the Delegated Powers and Law Reform Committee is pleased that I have gone some way towards addressing the committee’s concerns. In the next session of Parliament, I am sure that another committee will take responsibility for looking at funeral directors and how we can make sure that the funeral industry addresses citizens’ needs.
Amendment 100 agreed to.
After section 73
Amendment 101 moved—[Maureen Watt]—and agreed to.
Amendments 71 and 72 moved—[Maureen Watt]—and agreed to.
Amendments 102 to 107 moved—[Maureen Watt]—and agreed to.
Amendment 73 moved—[Maureen Watt]—and agreed to.
Amendment 18 is a structural change to the bill to move section 20 so that it sits with the sections relating to burial in a burial ground. It will be placed in the bill after section 15. It is a minor drafting change.
Amendments 19 and 22 are minor technical adjustments. They will ensure the system for applying for an exhumation and the issuing of guidance about burial authorities’ functions operate effectively.
There have been a number of amendments to the bill in relation to stillbirth, including one that provided for a definition of “still-birth” to be included in section 75, “Interpretation”. Amendment 28 removes the definition from section 47, and amendment 35 removes the definitions of “still-birth” and “still-born child” from section 47B. The definitions are provided in the interpretation section and are no longer needed in sections 47 and 47B.
Amendments 42 and 44 move sections 48 and 49, so that they appear after section 47. The amendments regroup the sections, following the insertion of new sections between sections 47 and 48 at stage 2.
Amendments 98 and 99 make minor changes to section 62, which confers powers on inspectors to enter certain types of premises. Amendment 98 will enable an inspector, if authorised by the Scottish ministers, to enter premises associated with the carrying out of functions of burial authorities and others. The approach will ensure that all activities of burial and cremation authorities and funeral directors are dealt with, by giving inspectors the power to carry out inspections wherever necessary. Amendment 99 makes a necessary consequential change.
Amendments 69 and 70 change references to “documents or records” to “documents, records or registers”. The effect is to make it an offence for a person to fail to comply with an instruction by an inspector to produce a document, record or register. The approach will ensure that an inspector can view information in each format, for the purposes of section 62.
Amendment 72 adds definitions of “still-birth” and “still-born child” to the interpretation section of the bill. Amendments 102 to 107 are minor, technical amendments to the table of repeals in schedule 2. Amendment 73 is a technical amendment, which ensures that the long title of the bill accurately reflects the bill’s content, including the amendments at stage 2 and proposed amendments at stage 3.
I move amendment 18.
Amendment 18 agreed to.
Section 22—Exhumation of human remains
Amendment 19 moved—[Maureen Watt]—and agreed to.
Section 23A—Exhumation register
Amendment 20 moved—[Maureen Watt]—and agreed to.
Section 34—Register of restored lairs
Amendment 21 moved—[Maureen Watt]—and agreed to.
Amendment 22 moved—[Maureen Watt]—and agreed to.
Section 37—Cremation authority: duties
Amendment 74 updates section 37 to put beyond doubt that any regulations that the Scottish ministers make in relation to the operation of a crematorium can include provision about
“the operation of equipment for the carrying out of cremations”.
I move amendment 74.
Amendment 74 agreed to.
Section 42A—Location of crematorium
Section 42A is very odd. From reading it, I take it that there are two policy intentions: to protect residential properties that exist from having a crematorium built at the bottom of the garden, so to speak; and to protect the peace and tranquillity of crematoria, which the minister referred to, from the encroachment of nearby residential properties.
The immediate difficulty is that, if those are the policy objectives, section 42A is incomplete in that it does not in any sense prevent the redesignation of something that might be within 200m as a residential property. Therefore, by the way that it has been constructed, the section fails to meet one of the policy objectives.
The second issue that one might consider in relation to protecting the peace and tranquillity of the crematorium and the grounds, which often contain memorials to those who have been cremated, is that section 42A does not address a wide range of other things that might fall within 200m. Let us think about some things that might do that. A school, a play park, a cinema, a theatre, a public house or a restaurant might do so. If we want to protect a crematorium’s peace and tranquillity, we would need to consider that issue and not simply ban residential properties.
Section 42A is not constructed in a way that would delivery adequately on either of the policy objectives. However, the minister—I speak as a former planning minister—makes an excellent point when she says that putting it into primary legislation is an odd way to deal with a planning issue. The national planning guidelines would be a much more appropriate place, because that would leave councils—who are the planning authorities—the discretion to make decisions that are appropriate to the circumstances before them. In particular, circumstances in a rural location may be very different from those that prevail in an urban location.
Perhaps with regret regarding the policy intentions of the person whose amendment inserted section 42A, we must remove the section at this stage and deal with the issue in a more appropriate way, via the planning system.