 Good morning and welcome to the second meeting of 2016. Everyone present is asked to switch off mobile phones and other electronic equipment as they affect the broadcasting system. Some committee members will use tablets during the course of the meeting because we provide papers in a digital format. We have apologies this morning from Jane Baxter. Our first agenda item today is to take evidence in the Dogfowling Fixed Penalty Scotland Order 2016. I welcome Paul Wheelhouse, Minister for Community Safety and Legal Affairs and Douglas Forrester from the Scottish Government. After we have taken evidence on the instrument, we will debate the motion in the name of the minister item 2. The committee has up to 90 minutes to debate the motion and officials are not permitted to contribute at that point. Minister, can I ask you to make any opening remarks that you may have, please? Thank you, convener. The order under consideration today increases the fixed penalty currently set out in section 9 of the Dogfowling Scotland Act 2003. The order will double the fixed penalty for dogfowling from its current level of 40 pounds to 80 pounds, bringing it into line with the fixed penalty for littering. That change has followed on from an analysis of responses to our consultation on promoting responsible dog ownership in 2014. The consultation asked respondents to make suggestions and measures to tackle the persistent problem of dogfowling in our communities, and an overwhelming number of respondents said that they would like to raise the fixed penalty. Following on from this consultation, my officials also carried out a further limited consultation among relevant stakeholders, including all local authorities, and Keep Scotland Beautiful about doubling the fixed penalty. All respondents to the consultation were in overwhelming agreement that the fixed penalty should be raised and that 80 pounds was an appropriate level at which to set it. That is all that I have to open with, convener, but I am happy to take questions. Thank you, minister. Are there any questions? John Wilson, please. Thank you, convener. Good morning, minister. As you are aware, no puns if they come out intended in terms of discussion. I will be stopping that. The reality is that we know that it is a serious issue out there and it is one of the most common complaints that we receive. When you consulted the local authorities, 32 local authorities, could you indicate how many of those local authorities indicated that they had enforcement officers or dog wardens operating to carry out enforcement? There is no point in increasing fines if there is no one there to enforce the legislation. How many local authorities indicated that they had enforcement officers and the level of enforcement that is taking place since the legislation came into place? I agree with Mr Wilson that it is an extremely important point that there is little threat of prosecution or charge if there is no means to catch those who are guilty of such offences. We have been doing an exercise where we have been inviting all local authorities to tell us one by one what approaches they take at a local level to enforce them. It does vary hugely across the country in terms of the type of approach that is taken by individual local authorities to how they actually catch individuals. Some have dog wardens and some don't and use other officers or neighbourhood officers who are doing other functions to cover areas such as dog fouling. My colleague Douglas Forrester has been involved in that exercise and, with your permission, I may ask Mr Forrester to comment on any evidence that we have received to date. I have not yet seen a comprehensive analysis of the feedback, but Mr Forrester may be able to contribute to that point. We have consulted with local authorities. The dog fouling act allows local authorities to use appointed officers to collect fixed penalties. As the minister says, they might not always be specialist dog wardens. Sometimes they are community wardens or neighbourhood officers, but they are authorised by the local authority under the provisions of that to collect fixed penalties. At the end of meetings with the Unsocial Bavarian Officers Forum, it is a meeting that involves unsocial bavarian officers and co-ordinators at local authorities, and they have raised the issue of dog fouling. All local authorities at those meetings say that they have got authorised officers in place, and it is through those meetings that I have heard the desire to see the dog fouling campaign—sorry, the dog fouling fixed penalty—to be increased. Also, there are a number of councillors from various local authorities, especially from Reddenburn and Scottish Borders, who have written in specifically asking the minister if the Scottish Government will consider increasing fixed penalty, so we have taken the views of those people on board. That is why we are here today to discuss this. Can you remind me where a fixed penalty is applied? Who receives the penalty fees? The local authority issues a fixed penalty, the fees, and the fee is accruable to that local authority. On the increase in the fine, would that be seen to help alleviate some of the cost? The assessment that is made by the Government in relation to this amendment to the bill is said to be effectively cost-neutral, and there is no additional cost to local authorities. If there is no additional cost, the additional fees will then go to the local authority. Is that in the hope that we will get more money into the system to allow more enforcement officers to carry out those duties? That would be the aim. The reason is that it is to allow local authorities to collect more money to invest in tackling dogfiling. The other thing to bear in mind, if I may convener, is to stress the importance of the signal. There has been an inconsistency in the approach that has been taken to date. In my view, it is a slightly absurd position that someone is to pick up their dogfiling mess and put it in a bag and then leave that bag hanging, then the littering fine is applicable. However, if they leave the dogfiling mess on the ground and do nothing with it, they paid a smaller penalty, but both are equally unacceptable and we are removing that inconsistency. It is an important signal to increase the fine, because that is an issue that local government takes seriously. It makes it easier because there are significant costs involved in recovering unpaid charges, but increasing the fine therefore improves the return for pursuing the unpaid penalty and makes it more affordable to do so from the local authorities point of view. They can be sure to cover their costs in terms of recovery. That is indeed an area that, while we have not addressed in this measure, that would require primary legislation to do anything to improve that process to ensure that unpaid fines are paid, but that could be looked at after dissolution by the current Scottish Government or, indeed, any other administration. I welcome the minister's comments regarding the unpaid fines and the pursuance of unpaid fines, because, as I said at the start, there is no point in bringing in legislation and fines if people then do not pay them. I also welcome the acknowledgement that has been raised with me by the members of the NFU in relation to dogfiling in the countryside, where there is one infamous tree that is littered with plastic bags containing the remains of the dogfiling that is taking place in the countryside. I hope that we can, through that, move forward and get more enforcement and make people understand that they have responsibilities and duties to not only their own dog ownership responsibility but also to the other people in the countryside. I wholeheartedly agree, convener, with that point. I know that NFUS and Keep Scotland Peaceful have been working closely together to try to tackle dogfiling in agricultural areas. The legislation, as it stands, does not cover dogfiling on agricultural land itself for practical reasons to do with shepherds and, obviously, dogs that are used, working dogs that are used in the countryside so that they are not covered by legislation. However, we are conscious that NFUS and Keep Scotland Beautiful and other campaigners are keen to see this particular issue tackled, because it can, as I am sure Mr Wilson and others would appreciate, have an impact on wildlife as well. I know that, certainly in the Loch Lomond area, when I was formally responsible for looking after Loch Lomond National Park on behalf of the Government, there were significant issues on how dogfiling had impacted on wildlife in that area, particularly in Capercaly. It could have a devastating impact on nesting areas. There are a number of reasons, not least for public health concerns for children, particularly those who are vulnerable to diseases that can be caused by contact with dogmess. That needs to be tackled. I hope that this is a small but important step in stepping up the level of response to what is widely perceived to be a significant problem. Good morning, minister. If this is passed, it comes into force on 1 April, which is only a matter of what ten weeks away. How are we making sure that the public are aware that that is coming? Are local councils getting geared up for this in terms of their awareness campaigns? Is there any evidence that they are beginning to provide more dogfiling bins, which many of the public always seem to be asking for more of? I certainly recognise that the provision of dogfiling bins is very important. It is obviously a matter for local authorities as to how best they deploy those resources. We are confident that local authorities have been in touch with officials to advise officials that they are in the process of organising the new fixed penalty books that we required. They are aware that that is happening and, as has been indicated, very supportive of what we are doing. On the back, if this measure is passed today, obviously the Government will use usual media channels to try and communicate that message out. We can look to see if we can remind people near the dates on 1 April that that is coming into force, just as a reminder that the legislation has changed in the reliable for a larger fine. I agree that behavioural change cannot happen unless people are aware that the measure has been taken and therefore that the fine is higher than it was previously. We need to educate individuals as to the fact that this is a larger risk now for them if they continue to ignore the warnings that they will receive a larger fine. We are confident that local authorities are aware of it and are supportive of it. We will do what is necessary to make sure that the measure is successfully implemented. I add that some local authorities have already been in touch with me to ask about the fixed penalty, whether it would be coming into force on 1 April, because they are in the process of organising new fixed penalty books. I can confirm that some local authorities have been in touch and they are already making arrangements in anticipation of the order that we are working through. I have noticed, certainly in the papers in my right of the woods, that there seems to be some publicity on the go on this. A city warden in Aberdeen was interviewed the other day and reported that a member of the public removed their sock to remove the offending article rather than pay the fine. Cameron Buchanan I wondered whether, in France, in public parks, there are bags that you pay for the bag for a dog fawn. Is that an idea? Should there be notices in public parks that the fine has been increased? In my theory, enforcement is very difficult. You tell somebody not to file the dog and they just tell you to go and see a taxi dermis. It is basically nothing that you can do about it. I wonder how enforcement is going to work. Can we put notices in public parks to say that the increase is now £60? Do you think that that is an idea? £80. To pick up an earlier point, if the fine is not paid, it goes up to £100, so it reaches 50 per cent and the maximum under this area could be £200, so it goes from the current 20 per cent up to 40 per cent, but it rises to 50 per cent if it is not paid on time. I agree that publicity is important and I certainly would be very supportive of any measures that local authorities take to advertise the change. We will do what we can through media and other outlets to do that, but the delivery of things like signages is a matter for local authorities to take. I would hope that the increased revenue from dog penalties will help to some extent to help pay for any additional publicity, but I appreciate that that is a very simplistic analysis of how the financial mechanics may work. It may not work in practice, but I would be very supportive of any efforts that local authorities take to ensure that, particularly, I think that the member is right to hit on things like public parks where children would have a reasonable expectation that they can play in safety without having to find themselves covered in dog mess and put the risk at health. That is particularly important. It is probably not impractical to have signage everywhere where public and dogs mix, but I would think that public parks and play areas, football pitches and such places should be areas in which we make it very clear that it is unacceptable to leave dog mess. Would you suggest in your memorandum that notices are put up? That is really what I was trying to say for the enforcement. We are trying to, as I said earlier on in my earlier remarks, gauge the degree of approaches that are taken across the country. If we can gather evidence that signage works and adds value to particular authorities and takes local authority views on whether that is being effective, we would certainly communicate that to other local authorities to say that that has an impact. We have to try to listen to local authorities about what works at a local level. There are some very innovative practices being taken forward, and Douglas Forrest referred to them. However, the Edinburgh Council is among the most proactive in tackling the dogfouling of the local authorities, which I am aware of anyway, and it has done quite a lot of work to map where dogfouling takes place and, therefore, target resources at where the offences are being committed. Obviously, that could identify where signage would be most appropriate rather than having it somewhere where perhaps there is very few offences and therefore not getting a good return for the investment in the signage. Targeting that resource investment in signage at areas where you know that there is a problem is probably the right way to go. My understanding is that, when the legislation came to pass, that in terms of the fixed penalty notices, the charge was going to be based on a percentage of a schedule 1 fine. Am I correct in thinking that? That is correct. The schedule 1 fine goes up to £200, and the current charge is 20 per cent of that. We are increasing that to 40 per cent. Indeed, the late penalty, which will stay the same at 20 pounds as it currently is, would take it up to 50 per cent if somebody does not pay on time. We are doing it this way because, obviously, schedule 1 fines have not increased since this legislation was enacted. Is that right? I could not answer that. I do not know whether Douglas Forreston knows whether that figure has changed over the time since 2003. I did check before I put the order through. According to the Scottish Government website, schedule 1 fine is still set to £200, so that is correct. We are increasing that percentage. Indeed, it is 40 per cent. That is the standard fee, but 50 per cent if it is a late payment. It seems a long while since a schedule 1 fine has gone up, but that is probably a matter for another committee rather than this one. Are there any other questions? No. I then move on to agenda item 2. I indicated before that this is now the formal debate on the instrument. Minister, can I ask you to speak to and to move the motion, please? Formally moved, convener. Any contributions from members? No. In that case, I put the question that motion S4M-15229 be agreed to. Are we all agreed? Thank you very much indeed. Can I thank you, minister, for your attendance today, and I'll suspend the meeting briefly for a change of air and witness. Our next item of business is to take evidence from the Scottish Government on the burial and cremation Scotland Bill, and I welcome Maureen Watt, Minister for Public Health, Dr Simon Cuthbert Kerr, burial and cremation building leader, and Graham McGlashan, principal legal officer from the Scottish Government. Minister, would you like to make an opening statement, please? Yes. Thank you, convener, and thank you for the opportunity to come to the committee today to speak about the burial and cremation Scotland Bill. Just as a brief introduction, the Bill represents a much-needed modernisation of the processes involved in burial and cremation. The Bill contains widely-ranging provisions that will standardise and improve practice across Scotland. The committee will be well aware of the issues identified by Lord Bonomy's infant cremation commission. Lord Bonomy made a number of recommendations to improve the processes involved in the cremation of infants, and many of those will be implemented by the Bill. Many non-legislative improvements have already been introduced, and the Bill will create a legislative framework that will mean that previous mistakes cannot be repeated. In particular, the Bill defines ashes and sets out what may be done with ashes. The Bill provides a power for ministers to prescribe forms for applying for a cremation. People who complete those forms will need to specify what they want to happen with ashes, and cremations will not be able to take place without that information. The Bill also establishes a process for deciding what should be done with the remains of a pregnancy loss. That places the woman who experiences the loss at the centre of the process, and requires that her options are explained to her clearly and that each decision that is made is recorded. That will bring consistency and transparency to the process. The Bill will also implement recommendations made by the burial and cremation review group. Some of the group's recommendations have already been implemented in the certification of death Scotland Act 2011. The remaining recommendations being implemented in the Bill will modernise the processes involved in burial and cremation. Those include giving burial authorities clear powers about what the management of burial grounds, including requirements to ensure their safety. The Bill will ensure that burial continues to be an option for future generations by allowing certain layers to be reused in tightly controlled circumstances. That will ease pressure on burial space and also help to bring closed burial grounds back into use. The Bill also allows ministers to introduce inspectors for various parts of the funeral industry. I have already appointed an inspector of crematoria, and the Bill allows for further inspectors to be appointed to scrutinise burial processes and funeral directors. In addition, the Bill also allows ministers to introduce a licensing scheme for funeral directors. If introduced, the Bill would address concerns about the conduct of some funeral directors, ensuring consistent best practice across the industry. Overall, the Bill will provide a robust framework for burial and cremation, which will meet the needs of 21st century Scotland. I am happy to answer any questions that the committee might have. Thank you very much, minister. You have talked about modernisation of the system, and I think that we will probably tease out some more on that. Of course, you have just touched upon the possible licensing of funeral directors. One of the things that has come out during the course of our evidence sessions is high costs of funerals, not only the charges from local authorities, which are very diverse indeed, but also costs of funeral directors themselves. Modernisation of burial and cremation is the aim here, but the industry itself, the funeral director industry, does not seem to be particularly modern. In fact, it seems to be stuck in the past, and that is maybe one of the reasons why there are such high costs. How can we ensure that the Bill will help to reduce funeral costs from the public sector point of view and from the private sector point of view? The bill's main aim is not in relation to funeral costs. In fact, we do not believe that the bill is the right place to deal with funeral costs. Undoubtedly, as you say, funeral costs are increasing, but they are made up of a wide variety of different elements that include local authority fees and funeral director fees. We do not think that using legislation to attempt to control those costs will necessarily address the underlying problems. As you know, the Scottish Government is doing other work to address funeral costs. It is reviewing the operation of the social one, which is to be developed to Scotland. The Cabinet Secretary for Social Justice, Communities and Pension rights has instigated a comprehensive review of funeral costs with a view to identifying ways to tackle funeral costs across a range of the relevant sectors. The cabinet secretary is publishing new information to help people to plan for funerals, including advice on the likely costs and to ensure that the various options for burial and a funeral are explained to people. However, I will go back to what I said initially that this bill is not the vehicle that we think is not the vehicle for helping with funeral costs. How do we ensure that the bill does not lead to further rises in costs? During the course of evidence sessions that we have heard from particularly local authorities last week, there may be an added cost to implementing some parts of the bill. We do not believe that the bill will necessarily lead to added costs in relation to funerals. As your witness from East Dunbartonshire demonstrated last week, there is a huge variety across local authorities in relation to the costs of layers and funeral costs and cremations generally. However, the bill is not, as I said, dealing with helping to reduce funeral costs. In fact, we could see, as a result of the bill, areas in which we could help to increase the number of layers, for example, and thereby reduce the cost of layers. Obviously, you have just mentioned East Dunbartonshire, which has the highest cost in the country. If memory serves me right, it was around £2,700. Is there any way that the Government itself can offer some kind of guidance on a maximum cost? There seems to be a huge difference in those costs, not only for burial but also for cremation. It was suggested last week that some local authorities and burial authorities no longer want to allow for burials and are trying to price themselves out of the market, if you will. We have a scenario in which the bill is trying to increase the amount of layers, increase the amount of burial space and bring more back into use. However, at the same time, it is going to put folk off using burial grounds if they cannot afford to use them. How do we get the balance right? Currently, the balance between funerals and cremations is 60 per cent—40 per cent—but we think that the bill could have a positive effect, overall effect, on costs of funerals. For example, we intend to bring forward its stage 2 amendment to require local authorities to publish all costs relating to burial and cremation. We will not do the same for funeral directors because that is a matter of consumer protection, which is still reserved. However, we are still working with funeral directors and the National Association of Funeral Directors to encourage them to be more transparent about their costs and to be much more forthcoming in advising customers of the wide variety of types of funerals that they can have. We believe that the appointment of inspectors of funeral directors as well as introducing a licensing scheme may help to drive up the overall standards for funeral directors and bring, as I said, transparency. You have talked about the consumer protection aspects and the committee understands that those issues remain reserved. However, is there no way circumventing consumer protection legislation but bringing something else into force that the Scottish Government could require funeral directors, for example, to have to give a cost for a very simple funeral? As it could be done as part of what we are going to require in terms of the devolution of the funeral grant, for example, I am sure that there are ways and means that we can come to some possible arrangement that does not involve consumer protection legislation. Has that been looked at? As I said, this is not the main purpose of this bill. We believe that, because we have been working with the funeral industry and local authorities on the subject, we have generated a need for funeral directors to be more open and transparent. As I said in my previous answer, to publish the wide range of funerals that are available for people is not necessarily just direct people towards the most expensive funeral that is available, but we can look at that as part of the licensing requirements in guidance on subordinate legislation. I realise that cost is not one of the main purposes of the bill, but it has come up to a huge degree during the course of our evidence, and we may well come back to some of that. On the aspects of consumer protection and the reserves and matters in that regard, if Mr McGlashan could tell us if there was a way that we could deal with those matters in Scotland rather than bringing the Consumer Protection Act into play? As the minister indicated, the Consumer Protection Act generally is reserved in the schedule 5 in the Scotland Act. I think that the convener was suggesting that the Government place some kind of requirement on funeral directors to publish their costs. The reservation and consumer protection also covers price indications as a reserved area, and to require funeral directors to publish their costs, we think, will follow that reservation as well. Regulation of funeral directors, would that be devolved or reserved? Regulation of funeral directors, in terms of licensing of it, would be a licensing scheme that would be proposing. That would be within powers, and that is certainly what we have. You could put within that licensing arrangements that funeral directors had to show a tariff. You can certainly go away and think about it. You appreciate it as a complex area. I cannot give legal advice to the committee. I would need to go away and have a think about it, but we can certainly... It would be most interesting for the committee to know if a licensing regime could have within it an acknowledgement that funeral directors have to show a tariff in order to be licensed. If you could get back to something, that would be grateful. Cameron Buchanan, please. I want to go back to the proximity of the new crematory, the 200-yard rule. Why have you decided not to put this in the bill? Yes, this is a difficult one and obviously one that has raised a lot of interest. The bill does not replicate the existing minimum distance for crematoriums. The current minimum distance, we believe, does not work, and providing a minimum distance in the bill is not the right approach. Even if the bill contained a minimum distance, it would not necessarily prevent a crematorium from being granted planning permission. We believe that it is preferable that decisions about the location of crematoria and the location of buildings close to crematoria are made by the planning system. For example, the perceived wisdom is that you cannot build a crematorium within 200 yards of houses, but it may not get a licence to operate because houses close by can object to it, but you can currently build housing right up to the boundary of crematoria and then what is the boundary? We believe that rather than replicating an inefficient provision at the moment that it is best left to the planning system. Would you consider reducing it to maybe 50 yards? It has created quite a lot of controversy and a lot of correspondence that people wanted to be protected by the crematoria. Would you consider it to be 200, 200 or 50 yards? As I said, we believe that it is best left to the planning system and not to put in distances because distances do not work currently. Are we protecting the peaceful setting of the crematorium or are we protecting housing residents? When the legislation was first put in place, there were not the same protections for emissions from crematoria as there are now, there are virtually no emissions. Why was that legislation put in place in the first place? I do not know if you know all the research that you have done, Simon. We have conducted quite a lot of research into the original purpose of it and it is certainly not clear. As the minister indicated, the fact that houses can be built right up to the perimeter of a crematorium suggests that the original intention of the minimum distance was the protection of residents from emissions rather than any effort to try and protect the sanctity of the crematorium. If the 200 yards rule is not restated, does the Scottish Government intend to provide additional statutory guidance on planning issues as they relate to crematoria? We can certainly look at that in relation to guidance, but have we got any plans at the moment? At the moment, no. We have had an on-going discussion with Scottish Government planning colleagues about this and they tell us that, or at least my understanding of it, that any minimum distance in another act could be taken into account as a material consideration by planning authorities. Nonetheless, it would not necessarily prevent planning permission being granted to a crematorium proposal that was technically breached at a minimum distance. The reason for that is that planning authorities look at the specific location that development exists in. If planning believed that there was no particular reason other than the minimum distance in the bill, why a crematorium could not be built within, say, 100 yards, they would be able to grant planning permission. Obviously, at this moment in time, the planning review panel is looking at a number of aspects of the planning system. Is this proposed change something that they are aware of and is it something that they may look at? That is something that we have spoken to planning colleagues about. I believe that, at the moment, it is not something that they intend to look at, but, as the minister indicated, that is certainly something that we could raise again with them. It certainly seems to be something that is causing some controversy. Cameron, do you want to come back in? Do you therefore consider putting in guidelines, as it did not quite understand, if we are going to put in guidelines for the minimum distance? We can certainly look at that, but we have not had proposals to do that until now. I think that I am allaying some of the fears of the people who are nearby. I follow what you say about the fact that housing, of course I can understand that, but I think that people are very concerned that it is going to be right up to the limit. I think that a guideline would be helpful to lay some of those fears. It is just building on the same point raised by Cameron. I am quite concerned about the Government's position on the issue. Most of all the witnesses that have come here have supported to keep in the 200 yards restriction. I have had a number of people that have contacted me concerned that, given that local authorities have a vested interest possibly in a development going ahead maybe because they own a building or because they have the land to sell, it is not only right that residents should have some sort of legal protection to prevent the invasion of privacy near their homes. I understand that, in anticipation of the bill being passed, East Lothian Council have agreed plan and permission for a crematorium in Haddington, and there is one property that is just 40 yards away. Surely that is not in the interests of the residents or in the mourners that would be attending the crematorium. I was wondering what reassurance the Government can give residents who face the prospect of a crematorium in their back garden. Is this not an example of how the planning system isn't working properly and is it possible that they need to strengthen the existing protection rather than remove it as being planned? Currently, through the planning system, what won't change is that it can object. We have seen an example of an eye mouth of a crematorium being built within the distance and an objection being raised and it couldn't operate. However, as I understand it, the owners of the crematorium and the objector came to an agreement and it now goes ahead. Through the current planning system, one can raise an objection, of course. I still think that the current law needs to be strengthened. Last week, we heard evidence that I cannot remember who it was from to say that we should review the plan, the 200 yards criteria, so that it works both ways, so that it applies to both existing developments and future housing developments. I think that that would possibly be something that the Government should be considering. There are no emissions from crematoriums now, so I would be interested to hear a bit more about what assessment has been made of the risk to residents of Lyman living in close proximity to a crematorium. Can you give a concrete guarantee that there are no emissions, particularly asher things falling into people's gardens? That is obviously a concern of local residents, so it would be good to have on the record some sort of concrete guarantee that there are no health implications. I certainly cannot speak to the detail of SEPA restrictions, but crematoriums require annual inspection by SEPA in terms of emissions. Emissions over particular levels will result in crematoriums operation being suspended, if necessary, or at least the number of crematoriums that cremations are able to carry out being reduced. We believe that the existing SEPA controls are appropriate and sufficient. It is certainly not something that has been raised by anybody during the consultation that I am aware of. We have recently had one letter that we received last week on the subject, specifically in the development in Haddington. Can I stay on the 200 yard limit just for clarification? There has been mention of the 200 yard limit being built in, and it goes back to legislation from the early 1900s. Could we get clarification on whether or not that was legislation or that was guidance? If legislation should not be built within 200 yards or crematoriums should not be built within 200 yards, does that mean that there have been breaches of the legislation that have taken place since the legislation was introduced and that local authorities have just basically ignored the legislation that was originally introduced relating to crematoriums? My understanding, Mr Wilson, was that it was in the Cremation Act 1902, but Simon has done an awful lot of research into this, so I am going to hand over to him. The way that the Cremation Act 1902 operates is that it requires somebody to object to the operation of a cremation that is built within breach of the 200 yard limit. It is not the case that a cremation that was built 150 yards from housing would automatically be prevented from operating. It would need essentially a person who lived in a house within that distance to make an objection. I think that that is what happened in the case in the Scottish Borders recently. On whether other crematoriums have been built in breach of the legislation, I cannot say, but that is certainly how it operates. Given that current planning legislation indicates that only those who live within 20 metres of a proposed development are consulted about a planning application, in relation to that 200 yards, if people are not aware that that currently exists in legislation in the 1902 act that they can object, then clearly there have been a number of breaches of that 1902 act mainly because people or residents were unaware of their right to object to that 200 yard limit being imposed on any new crematoria. Is that not the case? I think that it would be very useful if we could get a brief summary of the difference between the planning legislation that is involved here and the operation of crematoria as per the 1902 act. Dr Cuthbert Kerr, could you maybe give us a wee summary of that? Absolutely. The Cremation Act 1902 says that a crematorium cannot operate within 200 yards of an existing house unless it is with the consent of the owner of the house. I am not a planning official, so I cannot speak to that. From our dialogue with planning colleagues, I understand that the planning system will look at developments within the context of a particular location and will make a decision as to whether that particular proposal can be granted planning permission. As I understand it, even with the 200 yard distance that is currently in the 1902 act, a planning authority may choose to grant planning permission to a crematorium, which is, for example, 50 yards from a house because it sees no planning reason to not grant permission in other locations. However, it may choose to refuse to grant planning permission because the particular factors of the location require a further distance or that the planning authority believes that a particular distance is not appropriate. As I understand it, however, that is a decision made in the planning system rather than specifically in relation to other pieces of legislation. That is very useful, because I think that some folks are maybe conflating the two pieces of legislation. The reason for the conflation of the information that is provided before us is that we have a 1902 act that says that the crematorium should not be built within 200 yards of existing residences. However, what we have at the present and what we have seen over the period of time since the 1902 act is that Dr Simon Cuthbert Kerr indicated there that planning authorities have ignored the 1902 act and made decisions. Where we are actually putting words in Dr Cuthbert Kerr's mouth here, because I think that the 1902 act, if I have Dr Cuthbert Kerr right, states that a crematoria cannot be built within 200 yards of somebody's abode unless they have agreed that that would be the case. Dr Cuthbert Kerr, am I… Mr McGlashan. No crematorium shall be constructed nearer to any dwelling house than 200 yards except with the consent and writing of the owner. Let's see an occupier of such a house. We have heard from Dr Cuthbert Kerr that planning authorities have ignored that, and despite the fact that objections have been raised by residents about the crematoria. I want to stop you, John, because we are getting confused here to a huge degree between the legislation that governs crematoria and the legislation of planning. It is like a planning authority can give the go-aheads, for example, for a bookmaker shop or a pub, but it does not mean to say that that is going to end up licenced. We are in the same kind of situation as regards crematoria. Are we not, folks? I think that that is right. It is again a case where we are conflating the two, the planning system and the other operation. Mr McGlashan, do you have any other comment in that regard? Mr Wilson, I got it wrong in terms of, because it is a crematorium, there has to be wider consultation in relation to the crematorium. I think that this is a difficulty for this committee sometimes in dealing with these things. It is certainly a difficulty for members of the public to understand where each piece of legislation actually fits in. One of the things that may simplify the situation is if the two things could be joined at the hip, dealt with in tandem, so that the public out there actually know what the situation is. We have confusion here, so we are definitely going to have confusion out there, and it is something that you may need to reflect on. I have to be honest and say that instead of just having discussions with planning colleagues, we should come up with solutions to try and resolve it so that we do not have the situation where there is this huge amount of confusion. John Swinney, do you want to come back in? I think that you have clearly laid your position on the interpretation of the legislation in the 1902 act as verses of what is currently being carried out by local authorities. Can we go on to, just in relation to the issue of crematorium—not the crematorium, the cemeteries—and the issue about opening up or reusing existing layers? We heard last week in evidence that one local authority had carried out a survey of existing cemeteries and found that anything up to 25 per cent of layers in particular cemeteries had not been used. Has the Scottish Government carried out any work with local authorities to find out whether that is a universal situation in local authority cemeteries, or is that a one-off? Are there some indications of the number of unused layers that currently exist and have not been used for more than 25 to 50 years? Dr Casper, we have worked with both private and local authorities to try to work out how many layers fall into that category and, consistently, across all of them, have a high number of unused layers. At the moment, I do not have the figures in front of me, so I cannot necessarily say whether 25 per cent is common across the whole country, but certainly there are a high number of unused layers in all burial authorities. We thought in the bill that layers will no longer be sold in perpetuity, instead they will be sold for 25 years in the first instance. The owner of the layer will be given the opportunity to renew his or her ownership of the layer for the next 10 years, so that local authorities can have more control over layers that have been unused. You have indicated that someone could go along and purchase a layer, and they would be given title to that for 25 years. Would it not be more appropriate to have local authorities sell the layers when they are required, rather than a 25-year effect of lease on a plot in a cemetery? It starts leading to confusion once again that somebody has, as you have outlined, purchased or I am not sure whether they would be purchasing the layer if they would only have a lease on it for 25 years in the extended lease, so they would be effectively just for clarification. Are we talking about a lease situation or a purchase situation? It is how many 10-year extensions would then be granted to someone because, as you have said, we are trying to end the in-perpetuity rule that currently applies, but we are effectively saying that 25 years lease, then another 10, then another 10. How can we monitor that and make sure that a proper use has been made? My understanding is that it is ownership rather than lease, so it is ownership with the right to bury there. You might get some kickback from the public if they were told that they could not prepare for their eventual death by not being able to buy a layer whenever they wanted to, but by putting in these renewal opportunities, local authorities will have more control over what their burial and layer situation is. Clearly, for example, people have moved away to another area and do not want to renew their lease. Of course, their ownership of that can be resold to someone else. It is just the definition of ownership, minister. In terms of the legislation and guidance with the legislation, we need to be clear that that ownership applies only initially for the 25-year period. If we talk about ownership of a layer, it could be confused for that layer. We need to make sure that we get the language right so that whoever is purchasing or, as I have described, leasing the layer is clear that if they make a purchase in 25 years time, they might be approached by the local authority or the cemetery operator to ask whether they want to renew the ownership of that. It is about ownership or leasing, and it is just trying to get that quite clear, given that we have other pieces within the proposed bill that says that certain layers will be able to be used after 100 years. Richard McLeish. The right of burial is defined in section 12.3 of the bill as a right to be buried in the layer and to determine whose remains may be buried in the layer. In section 13.1, clearly, six of that right is extinguished at the end of the period of 25 years. I think that we would feel that the clarity is there already, but we certainly can have a think about it. Certainly, some burial authorities have already stopped selling layers in perpetuity to allow them to better manage their burial capacity and have a better control of what the situation is within their local authority area. As I said, it is just the clarification for anyone who is considering purchasing a layer that they realise that that does not confer ownership in perpetuity. Willie Coffey, please. Willie Coffey, I wonder if I could just come back to the cost issue. We moved swiftly over from that to the 200-yard issue there. What concerns me and a number of people have given evidence and have been in touch with us is that some local authorities, in particular the one that we mentioned last week, are charging huge fees for layer purchasing and internment—almost £3,000, I think that the figure was. I appreciate what you said about the cabinet secretary's review, the social fund arrangements and so on, but I am not so certain that that review might lead to local authorities reducing their charges for layers. The example that you gave, I think that you said that the balance is 60-40 in favour of cremations in post-de-Berlin, Scotland, but in Easton-Barn it is 75-25, according to the person that came to give evidence last week. That tells me that people in that particular authority are struggling here and are not choosing to use the burial option because of the huge cost of it. He did say, however, that the bill could help to increase the number of layers in Scotland and that might lead to a reduction in the cost, but is there any more of a direct tie-in that the Scottish Government could deploy to either guide lanes or expectation in authorities to do something about their layer charges because they are getting out of hand in some authorities? My first answer would be that we do not want, as a Scottish Government, to be interfering in something that is clearly a local authority responsibility. However, I think that, for example, providing for the reuse of layers that have not been used for 100 years, we can give the local authorities the option of bringing old layers back into use in existing cemetry, so that in itself could provide more layers. Obviously, in areas such as Ayrshire and Lanarkshire, we have a situation in which local authorities would be competing with house builders for land around about towns. We do not want a burial ground and a cemetery far away from a town, because we want people to be able to go and visit the graves of their loved ones. The further out it is, the less likelihood that that option is available for relatives. We think that by providing the opportunity for local authorities to reuse layers in older cemeteries, it will not only mean that they can increase the number of layers, but it will also bring those old cemeteries into use and make them vibrant places again. I heard, minister, that, through citizens advice, that last year there was quite a rise, about a 35 per cent increase in the number of people finding difficulty paying for funeral costs. In terms of the social fund review that you mentioned, are you able to give any more information on how that might assist or is it too early for you to make any comment on that? As I have already said, that work is not directly related to the bill. The Cabinet Secretary for Social Justice Communities and Pensions is taking that forward. I have read the citizens advice Scotland report, The Cost of Saying Goodbye 2. We know, for example, that the current social fund is insufficient in a number of ways. Once that is devolved, obviously, the cabinet secretary has the option to change that fund and perhaps make it better able to meet the costs of people who are finding the cost of burials too high. There will be, hopefully, the opportunity to improve the funeral grants once that fund is devolved. The Commonwealth War Graves Commission, we have a bit. Do you think that they should have explicit treatment? Do you think that they should have what, sir? Explicit treatment. The Commonwealth War Graves Commission, they came and asked if they could have special dispensation for their areas. Yes, that is an interesting piece of part of this bill, which I hadn't been aware of before. I think that it is important that we take into account what the Commonwealth War Graves Commission has said. Simon had a telephone call with them just on Monday to go through parts of the bill that they are interested in. I think that we are considering now whether at stage 2 we will lodge some amendments to provide absolute clarity about how Commonwealth Graves should be managed. I haven't realised, for example, perhaps you already do you might have an interest in this area, Mr Buchanan, that if the Commonwealth War Graves Commission identify a grave that is occupied by someone who was fought in the wars, then they might have an interest in the fact that the person died in war or as a result of war. Bear in mind that a lot of those are overseas in other cemeteries. The bill does not affect those overseas at all, but it may be where remains have been discovered overseas and repatriated. Then the Commonwealth War Graves Commission, but we are on the case. I think that the Commonwealth Graves Commission clearly raised concerns last week. Given that we are within the 100th anniversary of the First World War, there are a number of remains lying in local cemeteries around Scotland. We can get some assurances that, where there are identified people who have died fighting for their country, those remains will get to lie with being untouched in cemeteries. With this 100-year rule, we are very much crossing over that line if the legislation comes through where local authorities may decide to start opening up other layers and cemeteries and whether or not, where there are individuals who have been interred, who fought in those wars, whether or not those remains would be remain intact. We have been quite clear in the bill, Mr Wilson, that if the commission were to raise an objection where the local authority or the burial owner were thinking of reusing layers, that would absolutely stop the process right away. Minister, if we can maybe move on to record keeping. Can I ask what your view is and the role of Wrecker keeping and whether it could have wider uses, for example genealogy, tourism and also in recording the depth of internment to improve the potential for reuse of layers? I think that our late colleague Brian Adam was very active in terms of genealogy and family tourism. We are certainly aware of how important record keeping, not just death certificates but also record keeping in relation to internment, is important not only for the potential reuse of layers but in terms of genealogical research. Requiring burial information authorities to maintain consistent and accurate registers will ensure that anyone who wishes to check the records for any reason will be able to do so with confidence. We can get consistency across local authorities on that. In the future, it may be possible to link those records with other records, and that is something that we will consider as a requirement for what information is recorded and what will be developed in the future. That probably leads us well into Willie Coffey, if he is going to ask the same question as previously. Thank you very much, convener. You have raised this before, and it is on that issue about linkage between one set of records and another. As you probably know, there is no real direct connection between a person who is buried in a cemetery and the entry in the national records of Scotland. You have to make an educated guess that it might be one and the same person. Would that be something that we would see in linking the records in the future to help towards issues such as genealogy and so on? There is no connection, yet you would be pretty much guessing whether a person is buried and who they are in the national records. I think that that is absolutely something that we could consider. The actual data requirements for the registers under the bill have yet to be decided, so we could certainly look at requiring the death certification number to be included in that and to make a clear unambiguous link back to the death register. Can I ask one more thing on records, and, again, back to the point of the modernisation of all of that, the draft legislation itself does not require electronic records to be retained. Why would we not be requiring electronic records? We have heard from folks over the weeks that most folk have records in electronic format now, but why would we not have that requirement in the bill? I think that that is an end point that we would like to get to, that all our records are electronic. There are some local authorities who are better than others at digitising old records, but we did not put that in the bill because the funeral industry is very diverse, and, obviously, larger companies may well be fully computerised, but the smaller family funeral director in a small town may not be, so we did not want to make it a requirement, but, obviously, it is something that we would like to get to. On spelling that out, is there anything that can be put into the legislation to say that we should be fully digitised by x amount of time, rather than having to revisit that in a number of years' time, only to find that still not everything is digitised? I think that this is something that the inspectors have already said, appointed as an inspector of crematoria. The bill allows me to appoint some of my successors to appoint further inspectors. I think that that is something that the inspector could have a role in encouraging funeral directors to move to that and to spread out best practice, if you like. There is a subgroup of the national committee on infant cremation, considering the forms and records. If we have the same forms, it should be easier for everybody to use them and to do them electronically. The Delegated Powers and Law Reform Committee has drawn your attention to a number of points, minister, on why the licensing scheme at section 66 is provided for and is important at legislation and not in the bill and what are the amplifications that that might have in those in the industry. Do you have any comment on that point that they have made there? Yes, we have looked at the Delegated Powers and Law Reform Committee's report, and I will answer them shortly. In terms of the licensing scheme in section 66, it is our intention that the operation of any licensing scheme that is introduced would be influenced by the recommendations of inspectors. The approach taken in the bill will mean that we are not committed to a particular model and will provide sufficient flexibility to ensure that any scheme delivers what is required based on the view of the inspectors. Why, given the codes of practice that must be complied with by burial authorities, cremation authorities and funeral directors, are they not to be scrutinised by Parliament? In terms of that convener, we have accepted the point that was made by the DPLRC and we intend to lodge an amendment at stage 2 to require any codes of practice to be approved by the Parliament before they come into force. The other point that they made was round about section 70, which permits the creation of unspecified penalties and sanctions and regulation. Why have such matters not been included in the bill? Again, in relation to their recommendations, we are considering this section again, and we may lodge an amendment at stage 2 on this. Minister, I thank you and Dr Cuthbert Kerr and Mr McGlasham for your evidence today. I suspend and move into private session.