Coronavirus Act 2020 – Statutory guidance for local authorities

On 17 April, the MHCLG issued statutory guidance on Schedule 28 (“the guidance”) to the Coronavirus Act 2020 which contains new powers for local authorities and government to support the resilience of local death management systems and to step in if they become overwhelmed; the guidance sets out how and when the powers should be used by local authorities.

The guidance was announced in the MHCLG Press Release Government sets out plans to ensure bereaved families can attend funerals during pandemic which also stated that Local Government Minister had written to all councils in England to ensure that family members can attend the funerals of their loved ones and that the wishes of the deceased are respected.

The Press Release said “the government is clear that close family must be allowed to attend funerals in person” and indicated that Councils had been asked” to introduce safe and innovative approaches so that bereaved families can attend funerals”. In an accompanying letter dated 17 April, the Local Government Minister Simon Clarke “welcome[d] the PHE Guidance for managing a funeral during the coronavirus (COVID-19) pandemic being published on 18 April”.

This post reviews the statutory guidance; a separate post reviews the PHE guidance COVID-19: guidance for managing a funeral during the coronavirus pandemic which was published on 19 April.

Overview 

The 35-page guidance, Section 58 and Schedule 28 to the Coronavirus Act 2020: Local death management, provides statutory guidance for local authorities on Schedule 28 and the Powers in Relation to Transportation, Storage and Disposal of the Deceased, (section 58 is the link within the Act to Schedule 28).

With regard to its statutory authority, “the guidance is issued under paragraphs 9 and 13 of Schedule 28 to the Act, by the Secretary of State for Housing, Community and Local Government (MHCLG). It is issued through publication on GOV.UK.  It is valid from publication and will be kept under review and updated as necessary. It will remain valid as long as the powers in the Act are in force”, viz.

9 (1) The appropriate national authority may give guidance as to the exercise by designated local authorities of functions under this Part of this Schedule.
(2) Designated local authorities must have regard to any guidance given under this paragraph

13 … (5) The appropriate national authority must give guidance as to the discharge by local authorities of duties under this paragraph.
(6) Local authorities must have regard to any guidance given under subparagraph (5).

Although this guidance was issued under statutory authority, it is not a document with statutory authority, since the document did not require the approval of Parliament. It states [emphasis added]:

“[1.12] This guidance does not impose additional legal obligations on parties seeking to make use of the powers, nor is it an authoritative statement of the law. This is statutory guidance which local authorities must have regard to when exercising functions under Schedule 28.

The phrase ‘must have regard’, when used in this context, does not mean that the sections of statutory guidance have to be followed in every detail, but that they should be followed unless there is a good reason not to in a particular case.

Our recent post, Cremation under coronavirus restrictions, gave an overview of the provisions of the Act and associated legislation, and this new guidance provides more detailed information on these issues. In addition to cremation, Annex A: Related guidance of the guidance document provides a link to Cemeteries and Burials: Prevent groundwater pollution guidance 2017, an updated version of the Environment Agency position statement, reviewed here.

Capacity

In the context of Annex 28, “capacity” relates to the capability of local authorities in relation to the “transportation, storage and disposal of dead bodies” (“capacity” has different meanings elsewhere in the Act). The powers in Schedule 28 are:

  • Part 1: Information on capacity, (Section 2 of the guidance).
  • Part 2: Directions and other measures to address lack of capacity, (Section 3 of the guidance).
  • Part 3: Power to direct local authorities, (Section 4 of the guidance).
  • Part 4: Deceased’s wishes, (Section 5 of the guidance).
  • Part 5: Interpretation, (Section 6 of the guidance).

The guidance explains [emphasis added]:

“[1.7]. The Coronavirus Act 2020 received Royal Assent on 25 March 2020. The information-sharing powers (in Part 1 of Schedule 28) can be used now to assist in the COVID-19 emergency. However, as the powers of direction (in Part 2 of the Schedule) are extraordinary measures, they have to be ‘switched on’ by the appropriate national authority through the process of designating a local authority, before that local authority or the appropriate national authority can use them. The process for this is outlined later in the guidance.

[1.10]. This guidance is relevant for England only. Resilience is a devolved matter. Although the provisions in Section 58 and Schedule 28 apply in Wales, Scotland and Northern Ireland, the respective devolved administrations will develop their own guidance on these powers to reflect devolved differences in local government structures and different legislative positions. These sets of guidance will be published on their government websites after they are made.

Section 5 of the guidance: Deceased’s wishes (Part 4 of the Schedule)

This section of the guidance explains Part 4 of Schedule 28 and the obligations placed on a local authority when considering a deceased person’s wishes, religion or beliefs, where known, of the method used for their final committal (i.e. burial or cremation). Where possible, local authorities should [5.9]:

  • Bury or cremate a body in line with the wishes of the deceased or the family’s wishes if the wishes of the deceased are not known
  • Bury a body, or intern cremated ashes, in the appropriate section of a specified burial ground or cemetery based on the wishes of the deceased, including any requirements they had in relation to their religion or belief, such as the removal of ashes in line with wishes.

The circumstances for which local authorities can make a direction that goes against an individual’s wishes, religion or belief are summarized as:

[5.13]. Making a direction for cremation or burial that would go against an individual’s wishes, religion or belief must be the last resort and only used if there is a severe public health risk in not doing so, for example if there was no body storage availability, and no way of alleviating the pressures through other means.

[5.14]. Before this extreme measure is considered, local authorities must nonetheless have regard to the deceased’s wishes and demonstrate they have:

    • considered whether cremation or burial capacity can be increased using other measures, such as:
      ○ whether Part 2 Powers of Direction can be used to increase cremation or burial capacity by creating new burial sites, lengthening crematoria operating hours, or, where relevant, ensuring full utilisation of the burial sites of the deceased’s religious group.
      ○ whether the body can be committed in line with the deceased’s wishes in an area outside of the local region
    • consulted local community, religion and belief groups to understand whether there are any alternative mitigations available
    • considered whether the body can be stored for longer, embalmed or frozen until it can be committed in line with the deceased’s wishes. This is only an option if it complies with public health guidance on storing and handling the deceased, and with the understanding that certain religion and belief groups require rapid disposal of the body after death.
    • sought out best practice and assistance from other local authorities and industry partners.
Cite this article as: David Pocklington, "Coronavirus Act 2020 – Statutory guidance for local authorities" in Law & Religion UK, 18 April 2020, https://lawandreligionuk.com/2020/04/18/coronavirus-act-2020-statutory-guidance-for-local-authorities/

 

3 thoughts on “Coronavirus Act 2020 – Statutory guidance for local authorities

  1. Para 5.9 of the Guidance:
    “5.9. Where possible, local authorities should:
    ● Bury or cremate a body in line with the wishes of the deceased or the family’s wishes if the wishes of the deceased are not known
    ● Bury a body, or intern [sic] cremated ashes, in the appropriate section of a specified burial ground or cemetery based on the wishes of the deceased, including any requirements they had in relation to their religion or belief, such as the removal of ashes in line with wishes.”
    We may be in a lockdown period, but I didn’t know the Government intended that ashes or cremated remains (not cremated ashes, incidentally) should be locked up!

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