Section 5 - Suspension and Revocation of licences
60. The intended aim of the licensing scheme is to regulate the care and handling of the deceased by funeral directors. It will also create an environment in which there is scrutiny and regulation to increase credibility of, and confidence in, Scotland's funeral director sector through greater transparency and accountability. It is intended that as a consequence, the public can be confident in the services being afforded to the deceased (e.g. ensuring respect and dignity are preserved) and in the practices of the funeral sector against statutory minimum standards.
61. To contribute to this aim, an intended function of the licensing scheme is to ensure funeral director businesses are held accountable for complying with all relevant legislation, the Funeral Director Code of Practice and any conditions of licence. Inspectors will work with funeral director businesses to ensure they are maintaining compliance with these requirements.
62. It is proposed that regulations to be developed will provide for the suspension and revocation of funeral director business licences. It is proposed that suspension would mean a licence is made inoperative for a temporary period, until the concerns raised by the Inspector are appropriately addressed. Revocation would mean that the licence is removed, with no option for reinstating it.
63. The provision by regulations to provide for suspension and revocation of funeral director business licences will involve the interaction of sections 90 (inspection) and 95 (licensing) of the 2016 Act.
64. The proposed approach is as follows:
Suspension or Revocation Under Section 90 of 2016 Act (Inspection Route)
65. Generally, prior to any suspension or revocation action being considered, it is expected that Inspectors would first take an 'improvement approach' to provide businesses an opportunity to improve compliance. If necessary, this would be followed by the issuing of an enforcement notice. These steps are detailed in the consultation on the Inspection Regulations.
66. However, in what is expected to be only the most serious circumstances, if a funeral director business is found, through inspections, to be repeatedly or seriously non-compliant with set standards, the Scottish Ministers will be empowered to decide to suspend or revoke their licence. It is expected that typically suspension would be imposed first, and if necessary be followed by revocation. In these circumstances, suspension or revocation will, in practical terms, follow a route through the inspection regime.
67. This will be made possible because Section 90 of the 2016 Act (which provides for an inspection regime) will be commenced to permit an Inspector to recommend that a licence be suspended or revoked. The Act provides that, following on from a recommendation made by the inspectors, it must ultimately be Scottish Ministers who take the decision to suspend or revoke a licence (see inspection consultation).
68. It is anticipated that any suspension or revocation of a licence through this route would be done as a last resort, generally after other improvement or enforcement measures have been attempted but failed, and thus it is expected that licence suspension or revocation would occur rarely.
Suspension or Revocation Under Section 95 of 2016 Act (Licensing Route)
69. Separately, section 95(2)(l) of the 2016 Act provides for suspension and revocation of licence through the licensing regime. The proposed licensing regulations will set out the circumstances in which the licensing authority may suspend or revoke licences, where this does not follow non-compliance with standards discovered through inspections or inspectors' investigations of complaints.
70. We consider that there is one circumstance in which the Scottish Government considers it appropriate to provide powers to the licensing authority in order that the licensing authority may decide whether to suspend or revoke a licence: The licensing authority has been made aware that the licence holder (owner) of a funeral director business has been convicted of certain types of offences, for example a violent crime or fraud.
71. We are seeking views about whether there are any other circumstances in which the licensing authority may decide to suspend or revoke a licence, separate to suspension or revocation which may occur under the inspection route described above. We are also seeking views about what types of convictions may be appropriate to warrant suspension or revocation of licence. We intend to list categories of convictions which may prompt consideration for a licence suspension or revocation.
72. It is intended that there will be a requirement on the licence holder to notify the licensing authority of relevant convictions.
73. Where a funeral director business has had their licence revoked, the Scottish Government proposes that the person should have to wait a certain period of time before being permitted to apply for another funeral director business licence. We are seeking views on what the most appropriate period would be, including whether the waiting period should be the same for those who's licence has been suspended by either 'route' above.
74. The Scottish Government intends that the proposed licensing regulations would provide for appeals of substantive decisions by the licensing authority (e.g. to reject a licence application, or suspend or revoke a licence). This process would match the process for appeals of Scottish Ministers' decisions to impose enforcement notices – please see inspection consultation for details on appeals.
Question 8 - Please provide any comments you have on the proposed approach to licence suspensions or revocations, as provided for in the 2016 Act.
Question 9 - In addition to the circumstance noted in paragraph 70, are there any other circumstances in which the licensing authority may decide to suspend or revoke a funeral director business licence?
Question 10 - Please provide any comments on the possible types of convictions which might warrant the licensing authority deciding to suspend or revoke a funeral director business licence.
Question 11 - When a person has their licence revoked, how long should they be required to wait before being allowed to apply for a new licence?
- 1 Year
- 2 Years
- 5 Years
- 10 Years
Question 12 - Please provide any further comments.
There is a problem
Thanks for your feedback