Section 1: About this guidance
This section sets out the purpose and the status of this guidance. It explains briefly the policy background and what relevant powers in the Coronavirus Act 2020 will be covered, as well as how the guidance should be used.
Background on Section 58 and Schedule 28
1.1. Section 58 of and Schedule 28 to the Coronavirus Act 2020 ("the Act") introduce new powers relating to the transportation, storage and disposal of dead bodies and other human remains. These powers were included in the Act to ensure Scotland is prepared for a reasonable worst case of deaths caused by COVID-19.
1.2. If advice indicates that the number of people who might die from COVID-19 is likely to significantly exceed the capacity to locally or nationally manage the deceased, despite deployment of other contingency measures (for example, action taken to augment capacity across areas, or additional storage provided by government), designated local authorities and the Scottish Ministers will have the ability to take control of a component or components of the death management process. Capacity includes both baseline capacity well as effective capacity from time to time.
1.3. The powers to designate local authorities, and the powers of direction, available under Schedule 28 will only be used where there is a risk to public health and when scientific evidence and operational advice suggests that it is necessary. Given the penalties that attach for non-compliance, it is expected that the powers in the Schedule would only be used when clearly necessary. Designating local authorities and using the powers of direction will help ensure the local death management system continues to work effectively to protect public health whilst also ensuring every effort is made to preserve the dignity of the deceased. Personal choice will be respected as far as possible, including local authorities and the Scottish Ministers having due regard to treating the deceased in a manner that is consistent with the deceased's wishes or religion or belief.
1.4. The powers and duties in Schedule 28 as they concern Scotland are:
- Part 1: Information on capacity. These powers enable local authorities to require persons, and Scottish Ministers to require local authorities, to provide information for the purposes of ascertaining capacity locally to deal with transportation, storage and disposal of dead bodies and other human remains. See section 2 where this is covered in more detail
- Part 2: Directions and other measures to address lack of capacity. These powers enable Scottish Ministers to "designate" a local authority where, as a result of coronavirus disease, there is, or is likely to be, insufficient capacity within that area to transport, store or dispose of dead bodies or other human remains. Once a local authority is designated, that local authority can give directions to bodies such as businesses and other organisations (but not individuals or public authorities) to address capacity issues. In addition, the Scottish Ministers can give directions where they consider a national response is more appropriate. See section 3 where this is covered in more detail.
- Part 3: Power to direct local authorities. These powers enable the Scottish Ministers to give directions to local authorities where they consider local authorities have failed to exercise their functions properly (either as a burial or cremation authority, or in connection with the transportation, storage or disposal of deceased bodies). See section 4 where this is covered in more detail.
- Part 4: Deceased's wishes. When making directions using these powers, local authorities and the Scottish Ministers must have regard to desirability of allowing for the deceased person's wishes or religion or beliefs to be taken into account. Local authorities must also have regard to the deceased person's wishes, or religion or beliefs when deciding how to dispose of an individual deceased person's remains. See section 5 where this is covered in more detail
- Part 5: Interpretation. This part clarifies definitions of terms used in Schedule 28.
1.5. This statutory guidance is issued in accordance with paragraphs 9 and 13 of Schedule 28 and sets out the framework and principles for local authorities exercising these powers. Designated local authorities are required to take this guidance into account when exercising functions under Schedule 28.
1.6. The Act includes a number of other provisions aimed at relieving pressure in the death management system and to allow funerals to take place as quickly as reasonably possible. Further guidance is available on the Scottish Government website and listed at Annex A.
When does the legislation come into effect?
1.7. The Coronavirus Act 2020 received Royal Assent on 25 March 2020. The information-sharing powers (in Part 1 of Schedule 28) can be used now to assist in the COVID-19 emergency. However, as the powers of direction (in Part 2 of the Schedule) are extraordinary measures, they have to be 'switched on' by the appropriate national authority (in Scotland, Scottish Ministers) through the process of designating a local authority before that local authority or Scottish Ministers can use them. The process for this is outlined later in the guidance.
Who is this guidance for?
1.8. This guidance is for local authorities in Scotland.
1.9. The guidance will also be of interest to individuals and organisations involved in, or with an interest in, local death management.
1.10. This guidance is relevant for Scotland only. Resilience is a devolved matter. Although the provisions in Section 58 and Schedule 28 apply also in England, Wales, and Northern Ireland, the respective administrations will develop their own guidance on these powers to reflect devolved differences in local government structures and different legislative positions. This will be published on their respective government websites after they are made.
How should this guidance be used?
1.11. The purpose of the guidance is to assist local authorities in understanding and utilising powers in section 58 of and Schedule 28 to the Act by setting out the principles and good practice to follow when exercising those provisions. Local authorities must refer to this guidance when considering and using the relevant powers. The guidance has been written to reflect diversity of local processes and therefore some aspects or examples may not apply in some local authorities.
1.12. This guidance does not impose additional legal obligations on local authorities seeking to make use of the powers, nor is it an authoritative statement of the law. This is statutory guidance which local authorities must have regard to when exercising functions under Schedule 28. The phrase 'must have regard', when used in this context, does not mean that the sections of statutory guidance have to be followed in every detail, but that they should be followed unless there is a good reason not to in a particular case.
1.13. This guidance should be read alongside other guidance on death management – details of further guidance is included at Annex A. Local authorities should ensure they are aware of the different requirements of statutory and non-statutory guidance.
Status of this guidance
1.14. This guidance is issued by the Scottish Ministers under paragraphs 9 and 13 of Schedule 28 to the Act. It is issued through publication on the Scottish Government website.
1.15. The guidance is valid from publication. It will be kept under review and updated as necessary. It will remain valid as long as the powers in the Act are in force.