Section 3: Directions and other measures to address lack of capacity (Part 2 Powers of Direction)
This section provides guidance on Part 2 of Schedule 28, which gives powers of direction to local authorities and the Scottish Ministers in order for them to manage capacity in the death management system. It sets out how these powers can be activated and how they are expected to be used by local authorities. Templates that local authorities should use to issue, vary or revoke directions under this Part are included at Annex C.
3.1. The powers of direction enable local authorities and the Scottish Ministers to address capacity issues in the death management system, through making directions which facilitate the transportation, storage and disposal of the deceased. Before a local authority or the Scottish Ministers can make directions under Part 2 of Schedule 28, a local authority must be 'designated' first.
What is a designation?
3.2. A designation is the legal mechanism by which the Scottish Ministers 'activate' the direction powers of a local authority in Part 2. Once designated, these powers are 'switched on' and available for the designated local authority to use. A designation takes effect when published online by the Scottish Government, and can be revoked at any time. Revocations will also be published online and will take effect in the same way. Designations and revocations will be published in the Edinburgh Gazette by the Scottish Government as soon as possible after they have been made. Once designated, a local authority is able to use the powers of direction to address capacity issues within the death management system.
When would a designation be triggered?
3.3. The Scottish Ministers may designate a local authority where they consider that as a result of coronavirus diseases (i) there is, or is likely to be, insufficient capacity in that authority's area to transport, store or dispose of deceased bodies or human remains, and (ii) the exercise of powers of direction are likely to be an effective means of addressing those capacity issues (see paragraph 4(1) of Schedule 28).
3.4. LRPs, RRPs and the SCG are the principal forums for collecting information on capacity within local death management systems. The Scottish Government is already working closely with local areas to monitor and assess capacity. These structures, together with the information provisions in Part 1 of the Act, are designed to identify potential capacity issues at an early point so that the Scottish Government can support local authorities to meet any additional capacity requirements. However, the Part 2 powers of direction are an important additional tool to manage capacity, and information on current or forecasted capacity provided through LRPs, RRPs and the SCG, and any information provided by use of Part 1 powers, will inform decisions on designations.
3.5. Forecasted capacity issues should be raised within the LRP's and RRP's response structures to the SCG, where the strategic leadership within the SCG can jointly consider whether the use of additional powers available to Scottish Ministers and local authorities under Schedule 28 to the Coronavirus Act may be an appropriate course of action, and feed views into the Scottish Government on whether it may be appropriate to put the case forward for a ministerial decision. Scottish Government RRP Coordinators will be involved in this assessment and can provide a view on whether there is a case for a designation.
3.6. A decision by the Scottish Ministers to designate a local authority is based on their view about whether there is, or is likely to be, insufficient capacity within the local death management system in a local authority area. That view will be informed by a number of factors which could include (but are not restricted to) the following:
- Information on local capacity for managing deaths returns provided via LRPs, RRPs and the SCG and through any information provided by the use of Part 1 powers
- Advice from Health Protection Scotland or local public health directors
- Advice from the Scientific Advisory Group for Emergencies (SAGE)
- A direct ask from a local authority or group of authorities
- Feedback from Scottish Government RRP Coordinators in the area
- Non-compliance of organisations to take appropriate action within their area to assist capacity.
- Information from the Scottish Fatalities Investigation Unit at the Crown Office and Procurator Fiscal Service
- An assessment by government of the national capacity picture and predicted trajectory, based on ongoing work
- Information from the Additional Deaths Oversight Group of the SCG including from the sector (e.g. funeral directors)
- Health board or special health board capacity data (including hospital mortuary capacity).
3.7. In assessing whether a designation is required, Scottish Ministers will also consider how directions could be used to address capacity issues in the local death management system, and what effect they are intended to create, including a consideration of other ways of addressing the capacity issues. For example, if a factor driving local capacity issues relates to practices with a crematorium operated by a private sector provider which can be addressed by the operator changing processes or providing additional resources, a designation may not be required.
3.8. If the Scottish Ministers conclude that the conditions in paragraph 4 of Schedule 28 to the Act are met, they may make the decision to designate a named local authority. The Scottish Government would seek to complete the steps above as quickly as possible, recognising that reaching this point would likely mean swift action was urgently required to address capacity issues.
3.9. If the Scottish Ministers decide to designate a local authority, the Scottish Government will inform the local authority of the designation and the decision will be published online on the Scottish Government website. The designation will take effect at the point at which it is published online. The designation will also be published by the Scottish Government in the Edinburgh Gazette as soon as practicable after the designation is made.
3.10. The decision to designate will be recorded by the Scottish Government along with details of the rationale for making the decision to ensure consistency in application. Details of the justification will be shared with the local authority. This will include information on the reasons for designation and the capacity issue the designation is seeking to address.
3.11. Local authorities will be expected to use the direction in line with this reasoning. The powers of direction would be expected only to be used for the purposes outlined in the designation form – e.g. if Scottish Ministers designate the powers to a local authority so that the authority can address transportation issues, the powers of direction would be used only for this purpose. This will help inform any decisions to maintain or revoke a designation.
3.12. If a designated local authority considers that it needs to make broader use of the powers of direction than outlined in the designation form, this should be raised within the LRP's and RRP's response structures to the SCG. If Scottish Ministers agree that such broader use is required, they will issue a letter to the authority confirming that they are content for the authority to make broader use of the powers.
How can a local authority request to be designated?
3.13. If a local authority wishes to request a designation this should be raised to government via LRPs, RRPs and the SCG. Local authorities will already be working with these structures and the support of government to manage capacity and put plans in place to avoid reaching the point where these powers are required. A designation can only be made when the Scottish Ministers consider that the two conditions set out in paragraph 4 of Schedule 28 to the Act are met.
3.14. It is expected that decisions on capacity will be taken with the support of and in collaboration with local authorities. Local authority views on whether the designation is an appropriate response will be an important part of the decision-making process. However, the Scottish Ministers will proceed with a designation if they believe it is necessary to address a lack of capacity in line with the two conditions in paragraph 4(1) of Schedule 28 to the Act.
Which authorities could be designated?
3.15. 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.
3.16. It will be for the local authority to decide who should be responsible for carrying out actions under Part 2 powers in the Act.
What is the practical effect of a designation – how can the powers be used by a local authority?
What types of activity could a direction cover?
3.17. Once a local authority is designated, a local authority can give directions to support local death management systems. Consideration should be given to how these can be used alongside the provisions in sections 18-21 of the Act to streamline the process for registration of deaths. The directions that can be given are broadly defined to provide flexibility as to what may be required to deal with the situation as necessary.
3.18. The actions could include (but are not limited to):
- directing whether to bury or cremate a deceased person, having had regard to the legal duties in Part 4 of the Schedule about the deceased's wishes;
- directing crematoria to operate longer hours;
- directing funeral directors to have shorter services or to manage the deceased even if they are not the preferred funeral director;
- directing a company to use their vehicles to transport bodies or resources;
- directing a shorter time for body storage;
- directing those with excavation equipment to dig burial spaces under the supervision of those with relevant authority/qualifications;
- directing when an action needs to be taken.
3.19. Local authorities should bear in mind that costs may arise as a consequence of making directions and that a compensation scheme will be developed to provide for payments to those to whom a direction is given. See paragraph 3.35.
3.20. There may be circumstances where it may not be appropriate for a direction to apply to certain case(s), for example if the direction would impede a police investigation or breach health and safety legislation. Local authorities should limit the directions to exclude these.
Who can be directed using these powers?
3.21. The directions can be given to companies, partnerships, limited liability partnerships and other incorporated bodies (collectively "organisations"), but cannot be given to individuals or public authorities. Therefore they cannot, for example, be used to direct the military or NHS bodies. The only exception is that Scottish Ministers can direct local authorities under part 3 of the Schedule. This is dealt with in Section 4 of this guidance. There are no further restrictions on which organisations can be directed, or where in Scotland these organisations are based, provided that the activity required by the direction is for the purpose of facilitating the transportation, storage or disposal of deceased bodies or other human remains. There are, however, important considerations for local authorities to take into account when making such directions (see paragraph 3.22 below).
How should an authority issue a direction?
3.22. The powers in Part 2 of Schedule 28 provide designated local authorities with the flexibility to direct bodies such as businesses and other organisations (but not individuals or public authorities) as they consider necessary to facilitate effective death management capacity in their area. However, in making directions, local authorities must ensure they are using the powers effectively and in line with the requirements of the Act: Local authorities:
- Must have due regard to the wishes or religion or beliefs of the deceased, as set out in Part 4 of Schedule 28. This is critical and local authorities will need to be able to demonstrate how they have met this legal requirement. Further guidance is included in Section 5.
- Must consider the effect that any direction is likely to have on the ability of the organisation to carry on their normal business. If an organisation sits outside the death management sector but could have a critical role in the wider COVID-19 response, for example owners and/or operators of refrigerated vehicles, but has indicated it does not have sufficient capacity, local authorities should avoid issuing directions unless absolutely necessary. In these scenarios the issue should be raised to within the LRP's and RRP's response structures, and where needed with the SCG to determine the overall impact on the COVID-19 response and agree a final decision on the appropriateness of the direction.
- Should have regard to whether certain groups will be disproportionately affected by the action they are considering under the Public Sector Equality Duty.
- Should discuss requirements with their LRPs, RRPs, and, where needed, with the SCG, as the principal forums for monitoring capacity within local death management systems. Local authorities should also consult local organisations involved, for example local crematoriums or funeral directors, to assess potential actions that may be required to facilitate effective death management.
- Should work with relevant stakeholders to understand how the directions could be used most effectively including with funeral directors who are likely to have valuable knowledge of the local death management system.
- Should apply fairness, reasonableness and proportionality to their decision making. The actions taken should be those deemed most effective to address capacity in the area which will inevitably mean extra pressure or requirements on part of the sector or organisations. However, a designated local authority should be able to justify how activities have been undertaken fairly, as far as practicable.
- Should cooperate with surrounding areas. It is recommended that, where appropriate, local authorities work together to share capacity, particularly in highly populated cities. If a local authority deems that it is necessary to issue a direction which would have an impact outside of its area, this should be raised through the relevant LRP(s), RRP(s) and, where needed, with the SCG.
- Should ensure that those they direct are carrying out required activities safely. All action should be in line with Health Protection Scotland guidance.
3.23. Once a local authority has identified what it requires from local organisations, it should issue the directions using the templates included at Annex C. This includes a template if a local authority needs to vary a direction, and a template for revoking directions which should be used when they are no longer needed.
What records should be kept?
3.24. Designated local authorities, and Scottish Ministers, if they make directions, must keep records. This should include the following information – a record keeping template is included at Annex D:
- who was directed, what the direction was and the date of direction;
- a log of decisions regarding the directions made and rationale for those decisions;
- information on local partners who were consulted in making the decisions;
- how they considered the effect of the direction on carrying out normal business;
- how they adhered to Part 4 duties (wishes of the deceased); and
- any equalities impacts.
3.25. The appropriate period for which records need to be kept is a minimum of five years. However, under the GDPR as implemented by the Data Protection Act 2018, personal data, such as next of kin details, should not be kept for longer than it is needed.
3.26. Local authorities must submit records to Scottish Ministers if requested. This will ensure transparency and central oversight. Local authorities should also share information with other relevant authorities if there has been working across other local authority areas, for example if a direction issued by a local authority applied to a business which operated primarily in another area.
3.27. When a designation is made, local authorities should work closely with LRPs, RRPs, the SCG and the Scottish Government as the powers are used. When directions are made by a local authority, copies of the direction forms should be copied to the Scottish Government when these are made – contact details will be provided.
3.28. The Scottish Ministers will also keep in regular review (i) whether local authorities are using the powers correctly and appropriately, including the points set out in 3.22, and (ii) What impact the any exercise of the powers is having – ongoing capacity returns will be used to determine whether a change of approach or revocation of the designation is required.
When would Scottish Ministers make directions?
3.29. Scottish Ministers have the power to make directions under Schedule 28 and this power may be used in three different scenarios:
i. If they consider that a national response is appropriate, instead of leaving it to a local authority. This can only be utilised if one or more local authorities are designated under paragraph 4(1) (see paragraph 5(2) of Schedule 28). This course of action may be considered if the Scottish Ministers judge that a national or regional approach is the most appropriate solution. An example of this would be where several local authorities are intending to direct a particular business to use its vehicles. Instead of designating multiple local authorities in this case, it might be more suitable for the Scottish Ministers to direct the business instead.
ii. If Scottish Ministers consider a designated local authority is failing to exercise its powers of direction under paragraph 5(1) of Schedule 28 properly. In this situation, the Scottish Ministers can give any direction under paragraph 5(1) that the designated local authority could have given (see paragraph 6 of Schedule 28).
iii. If the Scottish Ministers consider that a local authority has failed properly to exercise its functions as (a) a burial or cremation authority or (b) in connection with the transportation, storage or disposal of dead bodies or other human remains. The Scottish Ministers can give the local authority directions as to the exercise of its functions in connection with the above matters, whether under Schedule 28 or otherwise.
3.30. Option (ii) may be considered if ongoing monitoring suggests that powers are not being used correctly, appropriately, or at all. This is only an option once a local authority has been designated. Indicators the Scottish Ministers will consider are:
- If a local authority has not issued a direction or is not issuing directions in line with guidance.
- If a local authority is not moving at the pace required to manage capacity issues, for example there are delays to issuing directions.
- If a local authority issues directions that are out of scope with the designation issued by the Scottish Ministers
- Whether a local authority is adhering to the requirements set out in 3.22.
3.31. Option (iii) is addressed in Section 4 of this guidance.
3.32. In these three scenarios, the Scottish Ministers will clearly communicate their decision to local authorities.
3.33. If a direction made by the Scottish Ministers conflicts with a direction made by a local authority, the direction by Scottish Ministers takes precedence to the extent of the conflict in the directions and must be followed (see paragraph 7 of Schedule 28). It is also possible a combination of the directions powers in both paragraph 5(1) and 5(2) could be an effective means of addressing the capacity issue(s), i.e. both a local authority and Scottish Ministers may issue directions concurrently.
Compensation for affected parties
3.34. Organisations which have been issued with a direction may be entitled to compensation (see Paragraph 8 of Schedule 28). This compensation could be for:
- costs associated with anything provided in accordance with a direction made under Schedule 28; and
- losses or liabilities incurred in complying with a direction made under Schedule 28.
Compensation will be paid by the local authority except where the costs or losses relate to a direction issued by the Scottish Ministers under paragraph 5(2) of Schedule 28.
3.35. If they take a decision to designate a local authority under Paragraph 4 of Schedule 28, Scottish Ministers will publish a separate scheme setting out arrangements for compensation under Paragraph 8 of the Schedule.
What happens in the event of non-compliance?
3.36. If an organisation fails to comply with a direction, without reasonable excuse, it is an offence and they may be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
3.37. A reasonable justification may be that the business is unable to act against certain individuals due to legal reasons, for example, if doing so would breach GDPR requirements or duties of care under Health and Safety at Work legislation.
Revoking the designation
3.38. As part of ongoing monitoring, the Scottish Ministers will keep a designation under regular review. A designation must be revoked when the Scottish Ministers no longer consider that the requirements in paragraph 4(1) of Schedule 28 are met regarding the threshold for designating a local authority. The decision will be based on the factors such as those set out in paragraphs 3.6-3.10.
3.39. The decision to revoke the designation will be communicated to the local authority before the formal revocation, so that the local authority can prepare for the powers to be withdrawn. A revocation takes effect when the decision is published online, and will be published in the Edinburgh Gazette by the Scottish Government as soon as practicable after the revocation is made. The effect of the revocation is that the local authority is no longer a designated local authority and therefore the powers of direction in Part 2 are not available to be used and any existing directions made no longer have effect. Therefore if a direction given by a local authority or by the Scottish Ministers provides for it to be an ongoing obligation, that obligation will lapse when the designation is revoked. When a designation is revoked, local authorities should ensure that suitable records have been stored and that all persons affected by directions issued are informed of the revocation.
3.40. A revocation of a designation does not prevent a local authority from being designated again under Paragraph 4(1) of Schedule 28.
3.41. The powers of direction will only be available whilst the powers in Schedule 28 are in force. Once the Coronavirus Act 2020 has expired these powers will no longer be available.