Section 2: Information about capacity
This section sets out guidance on using the information-sharing powers in Part 1, Schedule 28 of the Act. The template that local authorities should use to request information is included at Annex B.
2.1. The powers in Part 1 of the Schedule enable local authorities to require persons to provide information to assist those authorities to ascertain the capacity to deal with transportation, storage or disposal of dead bodies and other human remains, in a particular area. The Scottish Ministers also have powers under this Part to require local authorities to provide the same information, allowing Ministers to ascertain capacity nationally.
2.2. Local Resilience Partnerships (LRPs), Regional Resilience Partnerships (RRPs) and the Strategic Coordinating Group (SCG) of the Multi-Agency Coordination Centre are the principal forums for collecting information on capacity in local death management systems and provide the structures to facilitate effective information sharing between public and private organisations. This coordinated understanding of capacity (as per Category 1 and Category 2 responder duties under the Civil Contingencies Act (CCA) 2004) is vital for managing pressures within the system. The powers in this Part of the Schedule can be used to support and enhance these arrangements and for effective planning and reporting on a local, regional and national level. All organisations involved in the local death management system should have already been identified and included in LRP and RRP planning.
When do these powers become available?
2.3. The information provisions in Part 1 came into force on Royal Assent and are available to use immediately to ascertain information about capacity.
When would a request for information need to be made?
2.4. Information requests can be made by local authorities or the Scottish Ministers when information is required about the death management system's capacity for transportation, storage and disposal of deceased bodies. Information is critical for facilitating effective death management — for example, if local authorities need to understand the storage capacity in their area in order to identify whether there are, or are likely to be, storage capacity issues. This information will also be relevant to the Scottish Ministers in determining whether a local authority should be designated (see section 3).
2.5. Local authorities are able to seek the information without using these powers, using the usual methods available to them such as contact with trade bodies and the Scottish Bereavement Benchmarking Group. This is likely to be the fastest method of getting the information - companies and organisations are likely to be willing to help. The information request using Part 1 of Schedule 28 provisions should be used if normal processes are not working or where local authorities believe it is the most effective way to get the information needed quickly.
2.6. If an organisation or person is not cooperating with an information request under Schedule 28 the issue should be escalated within the LRP, RRP and, where needed, to the SCG. If the issue remains unresolved after these steps the local authority should refer it to the procurator fiscal.
2.7. Requests for information using the Part 1 powers could be made to assist with the following:
- To support activity coordinated by LRPs and RRPs relating to local death management;
- To assess capacity to carry out local death management plans;
- To evaluate whether additional requests for support are needed (e.g. Military Aid to the Civil Authorities requests);
- To feed into data or information returns for the Scottish Government;
- To assist the Scottish Ministers in ascertaining capacity nationally or within a particular area, which will also help to inform decisions about designating local authorities.
2.8. Some examples of the type of information which may be collected are:
- information from private businesses (such as private funeral homes or crematoria) on their capacity, e.g. number of cremators running;
- information from funeral homes on their operational status e.g. staff absences;
- information on workforce, including staff training levels;
- information on burial capacity in cemeteries;
- information on consecrated or burial provision for certain religious and community groups;
- information on vehicles for movement of bodies; and
- information on excavation equipment for digging of graves.
2.9. Local authorities can also require that information is shared with other actors who require it (for example neighbouring local authorities who are searching for spare capacity in the region) and/or can disclose it to them so long as it is for the purposes of ascertaining capacity.
2.10. The list in paragraph 2.8 is not exhaustive and the scope of the provision is broad. If a local authority or Scottish Ministers consider that certain information is reasonably required to ascertain capacity about the transportation, storage or disposal of dead bodies or other human remains, the powers in Part 1 can be used to obtain that information and disclose that information to others who need it for those purposes. This includes information which may be deemed commercially sensitive – local authorities and Scottish Ministers are able to request this information if it is required. The information gathered using the Part 1 powers may only be used or shared for the purpose of operating the death management system (see paragraphs 2.15 to 2.17 below).
How often is the information needed?
2.11. The frequency of information returns will depend on the nature of the information request. It will be a decision for local authorities and/or Scottish Ministers to determine whether information is needed as a one-off return, or whether daily/weekly/fortnightly information will be required. This will depend on the timing of the request and the reason for it. The deadline for receipt of information and the frequency with which it should be provided must be outlined when the information request is made.
2.12. Local authorities should bear in mind the additional administrative burden their information requests may pose on people and organisations. They should ensure that they are not asking for information too regularly if there is a risk that higher priority requests could be delayed as a result.
How can an authority make a request for information?
2.13. An information request made under Paragraph 1(1) of Schedule 28 must:
- Be in writing - the template which should be used is at Annex B.
- Specify whether the information is to be provided to the local authority, to the Scottish Ministers, or another specified person. For example, a local authority may request information from a crematorium and specify that the information must be reported to both the local authority and to the Scottish Ministers. This will need to be clear in the request.
- Specify how the information is to be provided - for example, a telephone call as soon as the information is available, followed up by a confirmatory email.
- Specify when the information is to be provided.
The local authority should provide an acknowledgement of receipt of the information return to the information provider once they have completed the request.
2.14. If practical, local authorities may wish to nominate a single point of contact or contacts within the authority to be responsible for managing information flows using this power. This could help to avoid any duplication of requests, and would also provide a contact point for businesses to highlight any issues or delays to providing the information.
EXAMPLE: Making a request for information
Local Authority A wants to ascertain the total body storage capacity in its area, including all public and private spaces available. It makes a request through local structures to engage with relevant organisations and agree data collection and use.
An organisation is cooperative but does not provide the necessary information in the timeframe agreed. Attempts are made to obtain the information using normal methods, including involvement by the LRP and/or SCG.
If this intervention is unsuccessful the local authority makes a request as outlined above in writing using the template and pursues any enforcement action as required.
Restrictions on use and disclosure of information
2.15. Information provided under Part 1 of Schedule 28 can only be used or disclosed for the purposes of ascertaining information on capacity to deal with the transportation, storage or disposal of dead bodies or other human remains. In particular, it can only be disclosed to a third party if it is for this specific purpose.
2.16. Information provided in a response to a request under Part 1 of Schedule 28 must be processed in accordance with data protection laws. Data of the deceased is not personal data for the purposes of data protection legislation. However, where data is shared that includes personal data, the local authority which requested the data is a data controller and responsible for ensuring processing is compliant with the data protection legislation, as defined by section 3(9) of the Data Protection Act 2018. The most likely personal data to be shared will be next of kin details.
2.17. Confidential and market-sensitive information supplied from the industry should be treated appropriately and confidentially. Data should be handled, stored and – when appropriate - destroyed in line with data protection legislation, with reference to a data retention policy to classify and manage the retention and disposal of information.
Which authorities can make use of the powers?
2.18. Requests for information can be made by local authorities.
2.19. A 'local authority' for the purposes of Schedule 28 is defined in Part 5 of the Schedule to be a council constituted under section 2 of the Local Government etc (Scotland) Act 1994.
How will these powers be enforced?
2.20. If a person or organisation fails to provide information requested under Part 1 within the specified timeframe the request should be followed up highlighting that it is a statutory requirement to comply with the request. If a request is not met this should be escalated within the LRP, RRP and, where needed, to the SCG. If the issue remains unresolved after these steps the local authority should refer it to the procurator fiscal.
2.21. It is an offence if a request by the local authority, made under paragraph 1(1) of Schedule 28, for information is not complied with without reasonable excuse, or to knowingly or recklessly give false information in response to a requirement under paragraph 1(1). It is also an offence for a person to use or disclose such information for non-authorised purposes. However, a requirement to provide information under paragraph 1(1) does not require or authorise the disclosure of information which would contravene data protection legislation, such as knowingly or recklessly re-identifying information that has been de-identified without the consent of the controller who de-identified the data contrary to section 171 of the Data Protection Act 2018, or that is prohibited by Parts 1 to 7 or Chapter 1 or Part 9 of the Investigatory Powers Act 2016. In Scotland, a person guilty of any of the offences listed in Part 1 of Schedule 28 is liable on summary conviction to a fine not exceeding level 5 on the standard scale.