The Coronavirus Act 2020 (the "2020 Act") gives significant powers to government to take certain decisions to be taken in response to the COVID-19 pandemic, including (in Part 2 of Schedule 14) a Scottish Government power to make determinations in relation to cremations. On 8 April the Scottish Government made two such determinations, which amend the requirements around the handling of ashes for funeral directors, cremation authorities (i.e. those who run crematoriums) and local authorities, and relax the rules on who can apply for a cremation.
Handling ashes
The first determination suspends certain obligations imposed by the Burial and Cremation (Scotland) Act 2016 (the "2016 Act") and the Cremation (Scotland) Regulations 2019 (the "2019 Regulations") on funeral directors, cremation authorities and local authorities in relation to handling ashes. The direction specifically suspends the operation of:
- section 53 of the 2016 Act, concerning a failure to collect ashes;
- section 54 of the 2016 Act, on the powers of funeral directors in relation to ashes;
- section 55 of the 2016 Act, on the duties of cremation authority where ashes are returned; and
- regulations 12(1), (2) and (3) and 13(2), (3) and (4) of the 2019 Regulations, which sets out rules on the giving of notices and a four-week time period for the collection of ashes.
The effect of suspending these provisions, combined with paragraph 10(2) of Schedule 14 to the 2020 Act, is that funeral directors and cremation authorities must retain ashes if they do not know how they are to be dealt with or the ashes have not been collected. This obligation to retain will continue until the Scottish Government's determination is revoked, at which point the four-week time period will begin anew and the director / authority will have to try to ascertain the wishes of the person who applied for the cremation (including doing so again, if wishes had already been expressed prior to the Government's determination).
The determination will also affect Scottish local authorities' obligations where they are arranging for a person's remains to be cremated under section 87 of the 2016 Act (i.e. if it appears no other arrangements have been made for a burial or cremation). Paragraph 12 of Schedule 14 to the 2020 Act provides that, for as long as the determination remains in force, the authority can apply for cremation without taking steps to ascertain how the ashes should be disposed of. However, it must then retain the ashes until the determination is revoked and it has taken reasonable steps to identify a surviving relative. If a relative is identified the authority must direct the cremation authority to comply with the relative's wishes as to collection, disposal or retention of the ashes. If the local authority cannot identify a relative or ascertain their wishes, it can direct the cremation authority to dispose of the ashes in line with the 2016 Act.
Relaxing requirements as to who can apply for a cremation
In normal circumstances the hierarchy of people who can make arrangements for the burial or cremation of a deceased's remains is determined by sections 65 and 66 of the 2016 Act. So, if the deceased is an adult, a spouse or civil partner ranks ahead of the deceased's children, who rank ahead of parents, etc. Under section 49 of the 2016 Act it is an offence to knowingly or recklessly provide false or misleading information in an application for cremation. In most cases that application will include a declaration that the applicant has the legal right to apply for the cremation, which would include being top of the hierarchy of near relatives. It would therefore ordinarily be an offence if (for example) a parent applied for cremation ahead of the deceased's spouse.
The second Scottish Government determination issued on 8 April suspends the offence in section 49 in relation to the signing of the declaration in an application for cremation. The introductory text to the determination indicates that it has been made to allow anyone in the hierarchy to arrange a cremation – e.g. it would no longer be an offence for a sibling of a deceased to say they had the legal right to arrange the cremation notwithstanding that the deceased had children who could have done so. However, any other matter relevant to the declaration, such as the funeral director's statement that they had discussed options with the applicant and know of no reason why the cremation cannot take place, would also no longer be subject to section 49.
That determination will remain in place until revoked by the Scottish Government.
These changes will require careful navigation by funeral directors, cremation authorities and local authorities alike. While they are intended to reduce the administration around cremations, they do themselves impose new responsibilities.
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