Meeting of the Parliament 10 December 2015
I welcome the stage 3 debate on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill and I share in the tributes that have already been paid to the Justice Committee, Patricia Ferguson and the many witnesses and stakeholders who helped to inform the legislative process.
As the bill concludes its parliamentary passage, it is worth reflecting on its purpose, which is to implement the 36 recommendations of the Cullen review that require primary legislation some six years after they were published. The review was timely because the relevant legislation was elderly and had not necessarily kept pace with other developments in the justice system, not least the incorporation of the European convention on human rights into UK law.
The test is whether the bill achieves the policy objective of reforming and modernising the law that governs the holding of fatal accident inquiries in Scotland. My party’s assessment is that it does that, and we shall support it at decision time. There are some very positive and noteworthy provisions in the bill, not least the requirement that sheriffs’ determinations should be published and that anyone who was party to the inquiry and to whom a recommendation is addressed should have to respond accordingly. Just as the Justice Committee did at stage 1, I urge the Scottish Government to find ways of ensuring that sheriffs’ recommendations are respected.
At stage 2, Patricia Ferguson lodged a welcome amendment to the bill to place a statutory obligation on the Lord Advocate to produce a family liaison charter. The issues surrounding the Crown Office and Procurator Fiscal Service’s often intermittent communication with bereaved families are well documented. Although numerous reasons can undoubtedly be adduced for such spasmodic contact, it exacerbates what is already an extremely difficult and sensitive time for relatives, so the cross-party support for that amendment was very welcome, and I join other members in acknowledging Patricia Ferguson’s considerable work to reform FAIs.
I was troubled by the removal from the bill of Patricia Ferguson’s provision to ensure that families receive legal aid. I think that FAIs are an entirely different beast from civil litigation hearings, and I am not sure that that distinction was appreciated.
I want to comment briefly on what the Justice Committee said in its stage 1 report on the lack of clarity surrounding the purpose of an FAI that is held in the public interest. There is a real misunderstanding in this area, which serves to raise the expectations of families. There needs to be greater transparency, and there is an obligation on the parties involved to provide that. How does the fatal accident inquiry relate to other investigations involving fatalities and to the role of the family or families affected? Greater transparency would help to demystify a complex system, while at the same managing the expectations of what the inquiry will ultimately achieve.
Despite the fact that they received support from all but the SNP members of the Justice Committee, Margaret Mitchell’s stage 2 amendments were removed in toto from the bill today. I noted the minister’s comments that the provisions did not attract wide support from stakeholders, although perhaps that is because the policy intent was not fully understood.
It is worth noting that Lord Cullen acknowledged that FAIs should be held into the deaths of those who are detained by the state, especially those who are most vulnerable, and that such FAls are in the public interest. My colleague Margaret Mitchell sought only to put that recommendation on a statutory footing. It is unfortunate that that has been overturned, and it has implications for our unicameral parliamentary system, for the robustness of scrutiny and for the legitimate power and authority of a scrutinising committee by majority to change a bill. Airbrushing out such change at stage 3 is unimpressive.
That said, the bill is a good one that will receive the support of my party, and it will have a positive impact on the system of FAls in Scotland.
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