We have been following developments in Scottish funeral regulation. The developments are either part of or connected to the Burial and Cremation (Scotland) Act 2016 (the “2016 Act”). What is the latest?

Some background

Amongst other things the 2016 Act introduces an “Inspector of Funerals”(who was appointed earlier this year) and an initial framework for the possible licensing of funeral directors (essentially who can be a funeral director and the expected standards to carry out such activities). Such a licensing framework, if and when introduced, can include a funeral directors’ code of practice covering the carrying out of a funeral director’s functions. Any such code would be binding as the 2016 Act says that “a funeral director must comply with any code of practice issued by Scottish Ministers” (our emphasis). In addition to potential licensing and binding codes of practice, the 2016 Act continues by stating that “Scottish Ministers may publish guidance on the costs associated with making arrangements for a funeral” and that such guidance “may in particular cover the desirability of such costs being affordable”.

The latest milestone: the “Funeral Costs Plan”

Scottish Government recently published the Funeral Costs Plan. It sets out ten action points to “help tackle funeral poverty” and “make more affordable funeral options available.” On affordability, the Cabinet Secretary’s foreward to the paper says that “the funeral industry is also taking steps to make its pricing clearer for customers, and to increase awareness of affordable funeral options. I welcome the efforts that are already underway but there is still more that can be done”. As well as affordability, the Funeral Costs Plan considers planning and saving and hopes for increased awareness of the products available to do so. Overall, there is an aim that there will be a higher level of ‘funeral literacy’.

The Scottish Government action points also exist in a wider regulatory context and it is identified that some matters connected to funeral regulation are reserved matters which the Scottish Parliament cannot legislate on alone. These may include financial services and competition law aspects of the regulation of the funeral industry and wider consumer protection. Scottish Government has and will continue to engage with UK Government, the Financial Conduct Authority and the Competition and Markets Authority.

Some of the ‘actions’ in the Funeral Costs Plan

There are ten action points. We mention four here.

“We will publish guidance on funeral costs by December 2018” On this, the paper trails that a formal consultation process will begin towards the end of 2017 and that Scottish Government “wants” to prepare statutory guidance on these costs. There is a commitment to continued engagement with industry and a recognition of professional association commitments on pricing transparency and an industry-led code of practice.

“We will seek to strengthen consumer protection in relation to pre-paid funeral plans” This is an action point that particularly interacts with wider UK financial, consumer and competition regulation. It is noted that as part of the notion of a ‘pre-paid funeral plan’, Scottish Government includes insurance-based products. The ideas of ‘transparency’ and ‘security’ seem key to aims in this action point. A full understanding of the current regime is important to designing any strengthening.

“We will make people aware of the products credit unions offer, including those specifically for funerals” This has an express objective to extend the appreciation of products available from and developed by credit unions. There is also reference to credit union umbrella groups working with Scottish Governments to explore possible new products.

“We will provide more options to help people save for their funeral by piloting a Scottish funeral bond” The description of this action in the paper says that without seeking to duplicate existing planning options, there have been initial discussions with parties, such as credit unions, on the best way to create a ‘Scottish funeral bond’ that will encourage people to save for their funeral.

What next?

There are ten actions to work on. There will be much work for and engagement with various parties. The Inspector of Funerals will be working on an 18 month review of the industry following which she will report on funeral sector regulation, including on a potential licensing regime. The consultation process on funeral costs will also commence. There will then be guidance on that topic.

In sum, there is a lot happening. Amongst that work there is much existing regulation, structures, products and law to be considered and understood. As matters evolve, there may be proposed and new ones to examine, understand the impact and work with.