Section 1 - The Licensing Authority
29. Section 95(2)(1) of the 2016 Act provides that licensing regulations may "specify who is to administer the scheme", and names this body the "licensing authority". The 2016 Act further sets out that, where the relevant powers under section 95 are utilised, the licensing authority is responsible for key decisions such as whether to grant or refuse a licence (or grant a licence with conditions).
30. The Scottish Government intends to utilise the powers in section 95 to name the Scottish Ministers as the licensing authority. In practice, if implemented, this will mean that when determining a licence application Scottish Ministers would be making decisions as the licensing authority.
31. The Scottish Government's view is that Scottish Ministers are the most appropriate authority to act as the licensing authority as Ministers have (along with other bodies) responsibilities for protecting public health in Scotland. Further, ensuring that the deceased are treated with respect and dignity is a matter of such public interest and concern that it is appropriate that the elected Government of the day is charged with ultimate responsibility in ensuring the minimum standards are met. The decision to grant or refuse a licence application or renewal application is likely to have a direct impact on whether a business can operate, thus impacting on people's livelihoods. We are also mindful that: it will be more cost effective to use existing resources rather than set up a new body for the licensing authority; that Scottish Ministers already perform similar roles with respect to, for example, Marine Licensing, Fish Health, and administering the PVG scheme via Disclosure Scotland; and that the 2019 Report of the Inspector of Funeral Directors recommended that the Licensing Authority be set within the governance of the Scottish Government.
32. Moreover, Parliament has already determined in the 2016 Act that it would be Scottish Ministers who would decide if a licence should be suspended or revoked (as set out in section 90(h)) (thus deciding if a funeral director business must stop operating). The Scottish Government perceives it is also commensurate and appropriate for Scottish Ministers to act as the licensing authority (to determine licence applications, and thus whether a business can commence operating).
33. We have been asked by stakeholders in the funeral sector whether an alternative choice might be to appoint Inspectors of Burial, Cremation and Funeral Directors as the licensing authority. However, there is not a discrete 'agency' or 'body' of inspectors which could collectively act as the licensing authority – inspectors will be appointed individually under the proposed inspection regulations, using powers provided in section 89 of the 2016 Act (see consultation on inspection regulations). Further, Inspectors are Ministerial Appointees and thus report to Ministers. As such, in response to stakeholder queries regarding whether Inspectors would be a more 'independent' licensing authority, they are not entirely independent from Ministerial accountability. As a result, the Scottish Government considers that Inspectors should not act as the licensing authority.
34. Other options included setting up a new body to act as the licensing authority and administer the scheme, or confer this function on an existing body. There are existing examples of 'inspectorates' and of licensing regimes sited in organisations such as local government or regulatory bodies (for example, the Scottish Environmental Protection Agency (SEPA)). These options have been subject to the following considerations.
35. Were the role of licensing authority to be given to an existing body, that would require a suitable body to be identified. It is viewed that for practical reasons Inspectors and the licensing authority would be sited in the same organisation, thus consideration of a suitable body would need to meet the requirements of both. On examination of independent bodies in Scotland and local government, there were no existing bodies with a model that would meet the needs of the funeral sector inspection and licensing regimes. For example, all local authorities are burial authorities and many are cremation authorities, which will be subject to inspection. Therefore there would be a conflict of interest in inspectors being both sited in, and inspecting, local authorities. It is also anticipated that centralising the licensing authority function will be more efficient than siting this in each local authority. Of the other existing 'industry-specific' inspectorates in Scotland, none is considered to be adequate in encompassing the aims of the funeral sector inspection and funeral director licensing regimes. Overall, due to the unique nature of the funeral sector, we are of the view that there is no existing body that could provide a ready-made solution.
36. We have also considered that the 2016 Act provides that suspension and revocation of licences (where it is triggered by an Inspector recommendation) must be decided by Scottish Ministers – this responsibility cannot be delegated and will always rest with Scottish Ministers. The option of setting up a new body or conferring the licensing authority function on to a different body may therefore create an environment in which regulation of the sector is administered across two organisations with their own governance, funding, etc. This type of governance structure is likely to be overly complex and bureaucratic.
37. Further, we note the Scottish Government's upcoming implementation of a Ministerial Control Framework, in which there is a presumption against the creation of new public bodies, unless there is no alternative and clear public value. We consider that alternative options are still available for the housing and administration of the licensing authority, and thus a new public body is not currently necessary.
38. Finally, the cost implications of setting up a new body or conferring these functions on an existing body also make these options less viable than providing for Ministers to be the licensing authority.
39. Given the above, we are not currently proposing to create a new body or confer the licensing authority function onto an existing body. Our present intention is that Scottish Ministers will be the licensing authority.
Question 1 - Please provide any comments on the proposal to designate Scottish Ministers as the 'licensing authority'.
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