Section 4: Powers to direct local authorities (Part 3)
This section outlines the powers in Part 3 of Schedule 28, which give the Scottish Ministers the ability to direct local authorities, and explains when they may be used.
4.1. The powers included in Part 3 of the legislation differ from those under which the Scottish Ministers can 'step in' in Part 2 (paragraph 6) of Schedule 28 and the ability of the Scottish Ministers to make directions where a regional or national response is required in paragraph 5(2) as outlined above in paragraph 3.29(ii) of this guidance. In those cases the Scottish Ministers would be exercising the powers of direction instead of the local authority.
4.2. Part 3 of Schedule 28 gives the Scottish Ministers the ability to give directions to local authorities about how the local authority should exercise its functions in relation to transportation, storage and disposal of dead bodies and other human remains both generally and under the Act and also as burial and cremation authorities.
When would government direct a local authority?
4.3. The powers under Part 3 would apply when the Scottish Ministers deem the local authority has failed to properly exercise its functions in the death management system. Issues which could give rise to such a judgement should be discussed with LRPs, RRPs, and where needed with the SCG, as the principal forums for monitoring capacity within local death management systems.
4.4. The most likely scenario where this would be used is when a local authority was declining to take action. For example if a local authority declined to extend opening hours at a crematorium it operated, or to use vehicles available to it for transportation of bodies, the Scottish Ministers could direct the local authority to do so. This would mean that instead of stepping in and issuing directions on the local authority's behalf, they would instruct the local authority to take actions itself. If urgency requires, government can step in using paragraph 6 powers.
4.5. The decision to give direction to local authorities will be made by the Scottish Ministers.
4.6. The Scottish Ministers must give directions to local authorities in writing. The directions must be specific and be related to the exercise of the local authority's functions as a burial or a cremation authority or the exercise of functions related to the storage, transportation or disposal of dead bodies. Local authorities must comply with any such direction
4.7. Directions given to local authorities will be revoked in writing when the Scottish Ministers assess they have been fulfilled or are no longer required. This assessment would be made based on information from the LRP, RRP, SCG, Scottish Government RRP Coordinators, reports from the death management industry, national information reporting mechanisms, and scientific advice. See 'Revoking the designation', above.