Hansard

I am delighted to open the stage 1 debate on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. I thank the Justice Committee for its consideration of the bill and of Patricia Ferguson’s Inquiries into Deaths (Scotland) Bill, which I shall speak about shortly.

In 2008, Lord Cullen, the former Lord President of the Court of Session, was asked to undertake a review of the fatal accident inquiry legislation and his review team undertook a comprehensive and thorough review, reporting in November 2009. Lord Cullen made 36 recommendations for reform of the system. Some were addressed to the Crown Office and Procurator Fiscal Service and have already been implemented, principally by the establishment in 2010 of the Scottish fatalities investigation unit, which now oversees death investigations in Scotland.

The SFIU provides advice to procurators fiscal who investigate deaths locally, liaises with Crown counsel on complex death investigations and liaises with the bereaved family or families. Approximately 11,000 deaths are reported to the Crown Office each year. Fiscals conduct investigations in around half of those cases—about 5,500 deaths—and an average of between 50 and 60 FAIs are held per year. Thus, the overwhelming majority of deaths that are investigated by procurators fiscal do not result in a fatal accident inquiry because it is not deemed to be necessary.

Lord Cullen’s aim was to set out practical measures for an effective, efficient and fair system for inquiry. That is also the aim of the Scottish Government’s bill. It will build on Lord Cullen’s recommendations that were implemented by the Crown Office to make the system more efficient, for example by greater use of preliminary hearings and by more flexible accommodation arrangements for FAIs. It will ensure that FAIs remain inquisitorial fact-finding hearings.

FAIs are not meant to hold people to account, as the media occasionally mistakenly suggest. They do not apportion blame or guilt in the civil or criminal sense; that is for civil or criminal proceedings. FAIs are inquisitorial judicial inquiries that are held in the public interest to establish the circumstances of sudden, suspicious or unexplained death or deaths that have caused serious public concern. The sheriff will consider what steps, if any, might be taken to prevent other deaths in similar circumstances.

The bill will rationalise and extend the categories of death in which it is mandatory to hold a fatal accident inquiry and include deaths of children in secure accommodation and deaths under police arrest, irrespective of location. It will, for the first time, permit discretionary FAIs into deaths of Scots abroad. I thank the family of Blair Jordan for sharing their experiences with me following Blair’s death off the coast of Japan in 2009.

With regard to deaths abroad, the Government is minded to take into account concerns raised by the Justice Committee to remove the requirement that the body must be repatriated before such an inquiry might take place. There might be occasions when a body has been lost or is otherwise not available for examination or post mortem. It is right that in such exceptional circumstances the possibility of a death investigation and potentially an FAI into a death abroad should not be lost. That will be an advance on English law and practice where there would be no coroner’s inquest in the absence of a body in those circumstances.

The bill will, for the first time, permit FAIs to be reopened if new evidence arises or, if the new evidence is so substantial, to permit a completely new inquiry to be held. Sheriffs will be permitted to disseminate determinations to regulatory bodies, which can implement any recommendations made. Finally, and crucially, the bill will, for the first time, place a requirement on those to whom sheriffs direct recommendations at the conclusion of an inquiry to respond and to indicate what action they have taken or, if they have not taken action, to explain why not.

Sheriffs make recommendations in around a third of all FAIs for precautions that might be taken to prevent deaths in similar circumstances in the future. The response, or lack of response, to a recommendation will be published along with the sheriff’s determination to create a public record. That procedure will replicate the system used under coroners’ inquests in England and will foster compliance with sheriffs’ recommendations in a transparent way.

The question of delays in holding an FAI has often been cited as one of the main concerns with the system of FAIs. Lord Cullen opposed the introduction of statutory timescales. He believed that the complexity and diversity of FAIs meant that timescales would be counterproductive. Rigid timescales might mean that the FAI might not achieve the aim of finding out the cause of death and any recommendations by which it might have been avoided. That view was confirmed by 80 per cent of respondents to the Scottish Government’s consultation on legislative proposals.

There are very often legitimate and unavoidable reasons for delays between the date of death and the beginning of an FAI, such as the need to wait for the outcome of other investigations by bodies such as the Health and Safety Executive or the Air Accidents Investigation Branch; the possible need to obtain expert advice; the need to consider whether criminal proceedings are appropriate; and, above all, the overriding necessity of conducting death investigations thoroughly—that factor is of particular relevance in relation to the complexity of some investigations, especially those involving medical cases and of course helicopter crashes.

Like the Justice Committee, I welcome the commitment by the Solicitor General for Scotland to produce a charter for families. That will provide clarity regarding what information the bereaved family will be provided with at the different stages of a death investigation and how and when that information will be communicated to them by the Crown Office.

It is proposed that the Crown Office will offer to meet bereaved families within three months after the date that the death has been reported to it to give them an update on the progress of the death investigation, the likelihood of criminal proceedings and the possibility of an FAI. The charter will also explain the different stages of a death investigation and set out the commitments of the Crown Office in terms of keeping in touch with relatives.

The Scottish Government is minded that the bill should be amended at stage 2 with a provision that will underpin the charter, as helpfully suggested by Patricia Ferguson, whose interest in FAIs is, I know, driven by her experience of the Stockline tragedy. A charter with statutory status should address concerns over delays and communication, and it should complement the provisions in the bill to make the FAI system more efficient. I am happy to work with Patricia Ferguson on such an amendment.

The Scottish Government has been discussing with the United Kingdom Government proposals to permit deaths in Scotland of service personnel in the course of their duties to be the subject of a mandatory FAI. Following representations that I have made to the UK Government, I am delighted to be able to tell members that the UK Government has given its in-principle agreement that it should be possible for a mandatory FAI to be carried out for such deaths, in the same way that such deaths would be subject to a coroner’s inquest if they occurred in England or Wales. I commend Flt Lt James Jones for bringing that important matter to the attention of the Scottish Government and the Parliament.

That change to the law will not, however, be effected by amending the bill. The matter falls within the defence reservation, and thus the change will have to be achieved by means of an order under section 104 of the Scotland Act 1998. I have written to all relevant UK ministers to inform them of our intention to seek a section 104 order.

I would like to take a moment to explain why there are some matters that are not provided for in the Scottish Government’s bill.

There is no provision in the Government’s bill for mandatory FAIs for deaths resulting from industrial disease or exposure to hazardous substances. That is because, as the Solicitor General confirmed in her evidence before the Justice Committee, the Lord Advocate can exercise his discretion to have an inquiry, particularly in cases involving a new type of industrial process or a new disease, where there would be public concern about the issues. There is little, if any, value in terms of public interest in holding an FAI into a death resulting from an industrial disease where the dangers are already well known and well acknowledged.

There is no provision in the Government’s bill for mandatory FAIs for the deaths of detained or voluntary mental health patients. Neither the Mental Welfare Commission for Scotland nor the Royal College of Psychiatrists believes that it is necessary or even desirable to hold mandatory FAIs in such cases. Indeed, there is concern that doing so might prove distressing to the bereaved family. The Royal College of Psychiatrists described the proposal as

“unduly legalistic, in that it will impose large numbers of elaborate, expensive and drawn-out judicial procedures upon families, clinicians and services with no discernible benefit in prospect to justify it.”

Members will be aware that section 37 of the Mental Health (Scotland) Act 2015 requires ministers to carry out a review within three years of the arrangements for investigating the deaths of compulsorily detained mental health patients or those who were admitted voluntarily for treatment for a mental disorder. Section 37 arose from an amendment proposed by Dr Richard Simpson during parliamentary consideration of the bill, and the Government accepted the desirability of a statutory review in the context described in section 37. I do not believe that it would be appropriate or sensible to legislate to extend the mandatory category in relation to deaths of mental health patients in advance of the work of that review.

I turn now to Patricia Ferguson’s Inquiries into Deaths (Scotland) Bill. Although I do not support the bill, I pay tribute to the work that Patricia Ferguson has done over the past couple of years in relation to the system of fatal accident inquiries, which has been informed by her involvement with helping families affected by the Stockline tragedy. Although Ms Ferguson originally claimed that her proposals would implement Lord Cullen’s recommendations in his review, she now believes that they do not go far enough. However, I note that in some respects Ms Ferguson’s bill contradicts Lord Cullen’s conclusions.

The Government believes that its bill is a proportionate response to Lord Cullen’s recommendations to reform the system of FAIs. Criticism of the system has arisen from some high-profile and controversial cases, but some of them did not even result in an FAI, because the circumstances of death were established in criminal proceedings. Some of Ms Ferguson’s proposals are, in our opinion, inappropriate and unworkable, and we believe that they would have potentially a significant negative impact on the Crown Office, the Scottish Courts and Tribunals Service and the legal aid fund, which is why we urge members to resist them.

The Faculty of Advocates has said:

“The proposed Inquiries into Deaths (Scotland) Bill put forward by Patricia Ferguson could result in FAIs becoming longer, more complex and more expensive, when the aim was to make the process quicker and more transparent.”

The faculty goes on to say:

“We think certain aspects of the proposed Bill have the potential to encourage FAIs to become adversarial in nature as opposed to inquisitorial.”

I know that that is not what Patricia Ferguson intends to happen, but we share the view of the Faculty of Advocates, which also said:

“Other unintended and unwelcome consequences … are the increase in the length, complexity and additional expense of FAIs, and potential for injustice arising from the provisions relating to the enforcing of recommendations.”

I know that Patricia Ferguson has amended some of her original proposals, but the main planks of her bill remain largely untouched. In particular, there are two areas of it where, regrettably, the Scottish Government believes the reforms suggested might not be workable: first, the proposal to make sheriffs’ recommendations legally binding and appealable, with criminal sanction in the event of non-compliance; and, secondly, mandatory inquiries for deaths from industrial diseases.

I have already set out the Scottish Government’s position in relation to the latter; in terms of the former, I welcome Patricia Ferguson’s argument in the explanatory notes for her bill that a sheriff’s determination should be inadmissible in evidence and should not be founded on in other judicial proceedings—that is also what the Scottish Government’s bill provides. The Scottish Government entirely agrees that that is an essential element of the distinction between, on the one hand, the fact-finding, inquisitorial nature of an FAI, with the sheriff empowered to make recommendations; and, on the other hand, the fault-finding, adversarial nature of other legal proceedings.

It is not the purpose of an FAI to establish liability for negligent actions. As Ms Ferguson has suggested, if liability arises from a death, a civil case is the forum where those matters are examined. That statement of principle is, however, undermined by the provision in Ms Ferguson’s bill to make sheriffs’ recommendations enforceable with an appeal process.

The suggestion that an FAI might be held before the sheriff personal injury court is another example of where we disagree with Ms Ferguson. Personal injury actions are adversarial proceedings that seek to establish negligence as grounds for the payment of damages as redress, whereas FAIs are inquisitorial actions that do not apportion blame or guilt and are thus a completely different legal specialism.

Patricia Ferguson’s bill would effectively turn FAIs into preliminary hearings for subsequent civil action. That is opposed by many stakeholders, including Lord Cullen, Lord Gill and the Health and Safety Executive.

I have met Patricia Ferguson on a few occasions throughout the process to try to find common ground, and I am happy to continue to do so. I am pleased that we have found areas in which we can work together in taking forward the Government’s bill.

In summary, the law relating to fatal accident inquiries in Scotland has not been revisited for almost 40 years and therefore never before by the reconvened Scottish Parliament. Lord Cullen has identified areas for reform and, thanks to the charter that the Crown Office is introducing, bereaved families will be kept fully informed of the progress of a death investigation and the likelihood of criminal proceedings or the potential for an FAI. For those cases that proceed to an FAI, the Scottish Government’s bill provides for a coherent, proportionate and modernised system of fatal accident inquiries that is fit for the 21st century.

I will be lodging technical amendments at stage 2 to improve and clarify the bill, in the spirit of the inquisitorial principle that the Government is inviting the Parliament to endorse today. I intend to work closely with Patricia Ferguson to put the Crown Office’s charter on a statutory footing. I commend the motion in my name, and I thank members for their time.

I move,

That the Parliament agrees to the general principles of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Bill.