Scottish Statutory Instruments
Burial
Cremation
Made
18th December 2018
Laid before the Scottish Parliament
20th December 2018
Coming into force
4th April 2019
The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 112(2), (3) and (4) of the Burial and Cremation (Scotland) Act 2016(1) and all other powers enabling them to do so.
1.—(1) These Regulations may be cited as the Burial and Cremation (Scotland) Act 2016 (Commencement No. 3, Transitional, Saving and Transitory Provisions) Regulations 2018 and come into force on 4 April 2019.
(2) In these Regulations—
“the Act” means the Burial and Cremation (Scotland) Act 2016; and
“the 1935 Regulations” means the Cremation (Scotland) Regulations 1935(2).
2. 4 April 2019 is the day appointed for the coming into force of the provisions of the Act specified in column 1 of the schedule (the subject matter of which is specified in column 2 of the schedule) but, where a purpose is specified in column 3 of that table in relation to a provision in column 1, that provision comes into force only for that purpose.
3.—(1) Each cremation authority must allow an inspector appointed under section 89(1)(b) (inspectors of cremation) of the Act access at any reasonable time to each crematorium for which it is the cremation authority and any premises (other than a dwellinghouse) associated with the carrying out of the functions of the authority.
(2) In this regulation “premises” includes any installation, container or receptacle associated with the carrying out of the function of a cremation authority.
(3) This regulation ceases to have effect on the coming into force of section 91(1)(a)(ii) (powers of entry to cremation authority premises) of the Act.
4.—(1) This regulation applies where an application for cremation is submitted to a cremation authority before the appointed day and the cremation has not taken place before that day.
(2) Regulations 7, 8, 12, 13 and 16 (conditions under which cremation may take place) of the 1935 Regulations continue to have effect in relation to the carrying out of the cremation.
(3) Sections 48 (application for cremation), 49 (section 48: offences), 50 (requirements for carrying out cremation) and 51 (duty of cremation authority before carrying out cremation) of the Act do not apply to the carrying out of that cremation.
(4) For the purposes of regulations 7, 8, 12, 13 and 16 of the 1935 Regulations, the definitions in the section entitled “Definitions” and the schedule of those Regulations continue to have effect.
5. Where a cremation is carried out before the appointed day—
(a)regulation 17 (disposal of ashes) of the 1935 Regulations continues to apply,
(b)the definition of “cremation authority” in the section entitled “Definitions” in the 1935 Regulations continues to have effect for the purposes of regulation 17 of those Regulations, and
(c)sections 52 to 55 (handling of ashes: duties of cremation authorities) of the Act have no effect.
6.—(1) Sections 57 (cremation register) and 58 (cremation register: offence) have no effect in respect of any cremation which is carried out before the appointed day.
(2) Regulations 18 and 19 (registration of cremations etc.) of the 1935 Regulations continue to have effect in respect of any cremation carried out before the appointed day.
(3) Where paragraph (2) applies, the definitions in the section entitled “Definitions” and the schedule of the 1935 Regulations continue to have effect for the purposes of regulations 18 and 19 of those Regulations.
7. Sections 59 (new crematorium: notice) and 60 (section 59: offences) of the Act have no effect in relation to the opening of a crematorium where, before the appointed day, notice of the opening of the crematorium has been given to the Scottish Ministers in accordance with regulation 1 of the 1935 Regulations.
8.—(1) Where a cremation authority proposes to close a crematorium, the authority must, at least one month before the proposed date for closure—
(a)give notice of the proposed closure in accordance with paragraph (2), and
(b)notify the Scottish Ministers in writing of the proposed closure.
(2) A notice under paragraph (1)(a) must be—
(a)published in a newspaper circulating in the area where the crematorium is situated, and
(b)affixed to the entrance of the crematorium.
(3) When a crematorium is closed the cremation authority must send all registers and documents relating to the cremations which have been carried out at the crematorium to the Scottish Ministers or dispose of those registers and documents in a manner directed by the Scottish Ministers.
(4) Paragraphs (1) and (2) do not apply in relation to the closing of a crematorium where, before the appointed day, notice has been given by advertisement in two papers circulating in the locality and by written notice fixed at the entrance to the crematorium in accordance with regulation 1 of the 1935 Regulations.
(5) This regulation has effect until section 61 (closure of crematorium) of the Act comes into force.
JOE FITZPATRICK
Authorised to sign by the Scottish Ministers
St Andrew’s House,
Edinburgh
18th December 2018
Regulation 2
| Column 1 | Column 2 | Column 3 |
|---|---|---|
| Provisions of the Burial and Cremation (Scotland) Act 2016 | Subject matter | Purpose |
| Section 45 | Meaning of “cremation” and “ashes” | |
| Section 46 | Provision of crematorium: local authority | |
| Section 47 | Cremation authority: duties | |
| Section 48 | Application for cremation | |
| Section 49 | Section 48: offences | |
| Section 50 | Requirements for carrying out cremation | |
| Section 51 | Duty of cremation authority before carrying out cremation | |
| Section 52 | Duty of cremation authority following cremation | |
| Section 53 | Failure to collect ashes | |
| Section 54 | Power of funeral director in relation to ashes | |
| Section 55 | Duties of cremation authority where ashes returned | |
| Section 56 | Handing of ashes: regulations | |
| Section 57 | Cremation register | |
| Section 58 | Cremation register: offence | |
| Section 59 | New crematorium: notice | |
| Section 60 | Section 59: offences | |
| Section 63 | Fees for cremation and other services | |
| Section 65 | Arrangements on death of adult | |
| Section 66 | Arrangements on death of child | |
| Section 67 | Arrangements under sections 65 and 66 | |
| Section 68 | Sections 65 and 66: application to sheriff | |
| Section 69 | Arrangements on termination of pregnancy after 24 weeks | |
| Section 70 | Section 69: health body authorised to make arrangements | |
| Section 71 | Section 69: no arrangements | |
| Section 72 | Duty of health body where still-birth likely to occur | |
| Section 73 | Section 72: health body authorised to make arrangements | |
| Section 74 | Arrangements on still-birth | |
| Section 75 | Section 74: power of appropriate health body | |
| Section 76 | Section 74: general power of appropriate health body | |
| Section 77 | Duty of health body where pregnancy loss likely to occur | |
| Section 78 | Section 77: health body authorised to make arrangements | |
| Section 79 | Arrangements on pregnancy loss on or before 24 weeks | |
| Section 80 | Change in arrangements | |
| Section 81 | Individual authorised to make arrangements | |
| Section 82 | Duty to transfer remains | |
| Section 83 | Appropriate health authority authorised to make arrangements | |
| Section 84 | Duty of appropriate health authority | |
| Section 85 | Duty to keep register | |
| Section 87 | Burial or cremation: duty of local authority | |
| Section 88 | Expenses of attending funeral | |
| Section 89(1)(b) | Appointment of inspectors of cremation | |
| Section 93 | Reports | So far as not already in force |
| Section 99 | Power to extend application of Act | |
| Section 103 | Offences by bodies corporate etc. | |
| Section 104 | Regulations: consultation requirements | So far as not already in force |
| Section 109 | Minor and consequential amendments | |
| Schedule 1 | Minor and consequential amendments | |
| Section 110 | Repeals | So far as not already in force |
| Schedule 2 | Repeals | So far as not already in force |
| Section 111 | Crown application |
(This note is not part of the Regulations)
These Regulations bring into force provisions in Parts 2, 3, 4, 6 and 7 of the Burial and Cremation (Scotland) Act 2016 (“the Act”). The Regulations appoint 4 April 2019 as the day on which the provisions listed in the table in the schedule will come into force. They also make transitional, transitory and savings provision.
Part 2 of the Act makes provision in respect of cremations. These Regulations bring into force all of Part 2 with the exception of section 61 (closure of crematorium), section 62 (section 61: offence) and section 64 (cremation authority: code of practice). Part 3 of the Act makes provision for the regulatory framework for the making of arrangements on the death of a person. These Regulations bring into force all of Part 3 with the exception of section 86 (register under section 85: offence). Part 4 of the Act makes provision in relation to inspection: section 89(1)(b) (appointment of inspectors of cremation) is brought into force by these Regulations together with section 93 (reports) so far as not already in force. Part 6 of the Act makes miscellaneous provision: section 99 (power to extend application of the Act) is brought into force by these Regulations. In relation to Part 7 (general provision) of the Act these Regulations bring into force section 103 (offences by bodies corporate etc.), section 104 (regulations: consultation requirements) so far as not already in force and section 111 (Crown application). These Regulations also bring into force the consequential amendments in section 109 and schedule 1 of the Act and, so far as they are not already in force, the repeals in section 110 and schedule 2 of the Act.
Regulations 3 to 8 make transitional, transitory and saving provisions. Regulation 3 makes a transitory provision in respect of powers of entry for inspectors appointed under section 89 of the Act. That provision has effect until the coming into force of section 91(1)(a)(ii) of the Act. Savings provisions are made where an application for a cremation has been submitted before the appointed day but the cremation has not yet been carried out (regulation 4). Where cremations are carried out before the appointed day, the Regulations make saving provisions in respect of the disposal of ashes (regulation 5) and for the keeping of a cremation register (regulation 6). Regulations 7 and 8 make provision for the opening and closing of crematoriums. Regulation 7 provides that the Act does not apply to the opening of a new crematorium where notice of the opening of the crematorium has already been provided under the Cremation (Scotland) Regulations 1935 (”the 1935 Regulations”). Regulation 8 makes transitory provision for the closing of a crematorium and saving provision where in relation to the closing of a crematorium notice has been given by advertisement in two papers circulating in the locality and by written notice fixed at the entrance to the crematorium in accordance with regulation 1 of the 1935 Regulations before the appointed day. That provision has effect until the coming into force of section 61 of the Act.
The Bill for the Act received Royal Assent on 28th April 2016. By virtue of section 112(1) of the Act, sections 100 (power to suspend or modify enactments), 106 (regulations: parliamentary procedure), 107 (interpretation), 108 (ancillary provision), 112 (commencement) and 113 (short title) came into force on the day after Royal Assent.
(This note is not part of the Regulations)
The following provisions of the Burial and Cremation (Scotland) Act 2016 have been brought into force by commencement regulations made before the date of these Regulations:—
| >Provision | Date of Commencement | Instrument No. |
|---|---|---|
| Sections 1 to 7 | 28th December 2016 | S.S.I. 2016/417 |
| Section 17 | 28th December 2016 | S.S.I. 2016/417 |
| Section 20 | 28th December 2016 | S.S.I. 2016/417 |
| Section 89(1)(a) and (c) and (2) to (6) | 28th December 2016 | S.S.I. 2016/417 |
| Section 93 (partially) | 28th December 2016 | S.S.I. 2016/417 |
| Section 98 | 1st June 2018 | S.S.I. 2018/157 |
| Section 101 | 28th December 2016 | S.S.I. 2016/417 |
| Section 104(1) (partially) | 28th December 2016 | S.S.I. 2016/417 |
| Section 110 (partially) | 28th December 2016 | S.S.I. 2016/417 |
| Schedule 2 (partially) | 28th December 2016 | S.S.I. 2016/417 |
S.I. 1935/247 as amended by S.I. 1952/1639, S.I. 1967/398, S.S.I. 2003/301 and S.S.I. 2015/164.