Hansard

I am delighted to open this stage 3 debate on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. The law relating to the investigation of sudden, suspicious and unexplained death is different in Scotland from the law in the rest of the United Kingdom. Countries that follow the common-law system, such as England, have coroners. In countries where there is a tradition of the civil law—in other words, law deriving from Roman law—sudden and suspicious deaths are investigated by the procurator, whose other duties include the preparation of criminal cases for prosecution.

Scotland is historically a country where the civil law has been followed, so the duty of investigating sudden and unnatural deaths has been handed down over a number of centuries to the procurator fiscal. The concept of the fatal accident inquiry has its roots in the reforms of the 19th century, which quite rightly demanded the improvement of social and working conditions.

The procurator fiscal thus first became the guardian of the public interest in relation to industrial and occupational deaths in order to ensure the impartial investigation of fatal industrial accidents with a view to presenting the evidence to a sheriff. Later, the procurator fiscal was charged with investigating any sudden or suspicious death in Scotland in relation to which there was a public interest in exposing and examining the facts of the death.

There have been a number of pieces of legislation on fatal accident inquiries and the most recent, the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, has served Scotland for nearly 40 years. It is right that the law should now be reformed and modernised and I pay tribute to Lord Cullen, who carried out a most thorough review of the legislation, which has brought us to this point.

There is a reason why I have sought to put the system of death investigation and of fatal accident inquiries in Scotland into context and to explain its historical derivation. Procurators fiscal investigate some 5,500 sudden, suspicious or unexplained deaths every year. Clearly many of those investigations will result in criminal proceedings.

In many cases, the fiscal will conclude that no further investigation or inquiry is necessary. Only around 50 to 60 cases per annum proceed to a full fatal accident inquiry before a sheriff. The Scottish Government firmly believes that this system incorporates and permits a necessary and beneficial degree of flexibility. Cases that have led to public concern will almost certainly lead to an FAI before a sheriff, while those that do not, by and large, will not.

One of the strengths of vesting all death investigation powers in a single public officer is that when homicide has been excluded, the prosecutor’s duty is not at an end, whereas if suspicious circumstances emerge in the course of investigating what had appeared to be an expected death, the prosecutor is already aware of the circumstances.

Deaths as a result of an accident in the course of employment and deaths in legal custody will automatically result in mandatory FAIs. Under the bill, deaths of children in secure accommodation and deaths in police custody, irrespective of the location of the death, will also now result in mandatory inquiries.

In all other cases, discretion is given to the Lord Advocate and the Crown Office to decide whether an FAI is required in the public interest. It is right that they should have that discretion, since the Crown will first have to establish whether there has been any behaviour in relation to the death that merits criminal prosecution. Only after that decision has been taken will consideration be given to the need for an FAI where it is not mandatory.

Lord Gill, the former Lord President, indicated in his evidence to the Justice Committee that it was right that the Crown Office should exercise discretion rather than the law becoming too inflexible, which would lead to many FAIs being held from which no lessons would be learned yet the bereaved family or families would suffer the distress of a public examination of the circumstances of the death of their loved one.

Under the bill, it will now be possible for the Lord Advocate to judge whether it would be in the public interest for an FAI to be held into the death of a person normally resident in Scotland who dies or is killed abroad. In coming to that decision, the Lord Advocate will have to take into account whether there has already been an adequate investigation of the death in the country where it took place. He or she will also have to consider whether there is a realistic prospect that an investigation in Scotland by the Crown Office will be able to properly establish the circumstances of the death, given that it will have to rely on liaison with, and the co-operation of, the legal and Government authorities in the country in which the death took place.

Nevertheless, the Government believes that the bill is a major advance in the law of death investigation in Scotland, particularly as it will be possible to hold an FAI without the body being repatriated to this country. That is still a requirement for a coroner’s inquest to be held in such circumstances in the rest of the UK. The requirement for the repatriation of the body was removed from the bill at the suggestion of the Justice Committee, to whose members I extend my thanks for their thoughtful and thorough consideration of the bill. There is therefore now parity in the bill in terms of a death occurring on the Scottish mainland, in the offshore North Sea oil and gas area, or abroad.

I should add that the system in Scotland is quite different from that under coroners in the rest of the UK. Under the coroners’ system, the coroner is responsible for the investigation of the death or deaths, but the coroner also presides over the inquest. In Scotland, the procurator fiscal investigates the death but if an FAI is mandatory or is ordered by the Lord Advocate, the fiscal will present the evidence to a full judicial inquiry before a sheriff. We believe that that system combines and embodies the necessary elements of effective investigation, separation of powers and judicial independence to determine authoritatively the circumstances of the death and any precautions that might have been taken and which should be taken in the future to prevent deaths in similar circumstances.

The bill contains new provisions that require participants at FAIs to whom a sheriff has directed a recommendation to respond, setting out how they propose to implement the recommendation or, if they do not intend to comply, explaining why not. Patricia Ferguson lodged an amendment at stage 2 that requires Scottish ministers to produce an annual report on responses to recommendations. Taken as a package. we believe that the proposals on requiring responses to sheriffs’ recommendations and the annual report will provide a transparent record of what has happened in relation to those recommendations. The report will highlight whether participants have responded to the recommendations, although if the experience under a similar system for coroners’ inquests is a guide, very high response rates may be expected.

Patricia Ferguson lodged another amendment at stage 2, which provides statutory underpinning for the family liaison charter that the Solicitor General for Scotland promised during evidence at stage 1. The charter will keep bereaved families fully informed of the progress of a death investigation and the likelihood of criminal proceedings or the potential for a fatal accident inquiry.

Patricia Ferguson did, of course, introduce her own member’s bill on fatal accident inquiries. Although she chose to withdraw her bill at stage 1, it is appropriate to acknowledge and pay tribute to all the hard work that she has devoted to addressing the various issues surrounding death investigations and FAIs. I thank her for the collaborative way in which she has engaged with the Government on the bill.

Elaine Murray lodged an amendment at stage 2 on trade union participation at FAIs. The Scottish Government accepted the amendment, subject to amending the provision to ensure that it properly reflected the policy intention. I am grateful to Elaine Murray, too, for discussing that with me, which has resulted in our amending the provision to ensure that it means that bodies similar to trade unions that represent workers who are not permitted to join trade unions will be able to participate at FAIs.

I pay tribute, too, to Flt Lt James Jones, who drew to the attention of the Justice Committee the anomaly that deaths of service personnel in the course of their duties in Scotland do not at present automatically result in a fatal accident inquiry, although a discretionary inquiry may be held. That fact was not raised by Lord Cullen in his review, nor was the matter raised during the Government’s consultation on its legislative proposals. It is a credit to the Justice Committee’s system of evidence taking that the issue was identified during its deliberations.

The matter will now be progressed by means of a section 104 order under the Scotland Act 1998, which will be brought forward at the Westminster Parliament because the issue engages the reservation of defence matters and the armed forces. I indicated during the stage 1 debate that we have received agreement in principle from the UK Government for that change. The Scottish Government will continue to work with the UK Government to put in place the necessary order next year.

The bill is not the end of the reforms of the system of fatal accident inquiries. In addition to the section 104 order to which I have referred, the Scottish Civil Justice Council will prepare rules for FAIs under section 34 of the bill that will complement and supplement the bill’s provisions. The rules will provide the kind of comprehensive, self-contained set of rules that Lord Cullen recommended were necessary for FAIs. It will therefore not be necessary in future to supplement the fairly sparse existing rules for FAIs with rules that were written for adversarial civil litigation, which may not lend themselves to an inquisitorial fact-finding process.

The involvement of the Scottish Civil Justice Council will ensure that the new draft bespoke rules for FAIs benefit from structured, co-ordinated stakeholder input. The rules will cover matters such as preliminary hearings, which will now be the norm for FAIs; the agreement so far as possible of uncontroversial evidence before the start of an FAI; greater case management powers for sheriffs, in line with the general thrust of the reforms under the Courts Reform (Scotland) Act 2014; and the new provisions for further inquiry proceedings where new evidence comes to light. The intention is that the new act, the rules and the section 104 order will all be commenced at the same time. As it will take some months to work up suitable and comprehensive rules under the new act, it is anticipated that commencement will not be until later in 2016.

The Scottish Government’s bill provides for a coherent, proportionate, modernised system of fatal accident inquiries fit for the 21st century. It seeks to provide what Lord Cullen desired: practical measures for a system of inquiry that is effective, efficient and fair. We believe that that is what the bill does and we hope that the legislation will be able to serve for even longer than the 1976 act. I commend the motion in my name and ask members to support it.

I move,

That the Parliament agrees that the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Bill be passed.