Hansard

I begin by welcoming the review of the legislation governing fatal accident inquiries in Scotland. I particularly welcome the choice of Lord Cullen of Whitekirk to conduct the review. As the Solicitor General said, Lord Cullen's reputation goes before him: he has presided over previous inquiries of major importance to Scotland. I pay tribute to him on behalf of the Labour Party.

The 1976 act that we are reviewing is relatively young for a piece of Scottish legislation, but it is still in need of reform. We have had a limited amount of discussion in the Parliament about the purpose and efficiency of fatal accident inquiries, although a few petitions on specific cases have gone before the justice committees, which other members will address. Clearly we can learn lessons from such cases, but I will deal with the general principles and the areas that need reform, and leave others to talk about specific cases.

First, I will deal with Margaret Smith's amendment, which we will support tonight. She is right to say that some of the detail needs to be resolved, but Labour in Scotland supports the concept of helping service families by holding hearings in Scotland as long as the same conditions that apply in the English coroners' jurisdiction apply in cases heard in Scotland. Labour fully supports what Margaret Smith is trying to achieve and we acknowledge her work in the area.

In a helpful and sensitive letter that was copied to all MSPs, Des Browne, the Secretary of State for Defence, states that although the current system ensures that, following the death of a Scottish soldier ordinary domiciled in Scotland, their family is entitled to an investigation into the death, it does not deliver the convenience of investigations close to home. That applies to many United Kingdom families.

For cases to be heard in Scotland, two things would need to change. First, the Scottish system does not allow the investigation of deaths abroad, so we do not have the jurisdiction to conduct FAIs into deaths that take place outside Scotland. Secondly, not all fatal accident inquiries are mandatory; unless we changed that, families would not have the guarantee that they have at the moment. Both matters would have to be addressed.

There will be some debate about what legislation needs to be changed. For the record, I will read from Des Browne's letter. He says:

"Addressing these issues is of course a matter for Scottish Ministers. The answer is for you to make a commitment to amend Scots law in a way that can guarantee that Scottish based service families can be assured of mandatory inquiries into overseas operational deaths. If that were to happen then it would be entirely appropriate to repatriate deceased service personnel to Scottish bases once the law has been changed. You will understand, however, that I cannot contemplate changes without your commitment to mandatory investigations."

The view of the Secretary of State for Defence is that we need to change Scots law. Labour members believe that we should make the changes that are necessary to enable such FAIs to proceed in Scotland. It may not be necessary to amend the Scotland Act 1998—we can debate whether that is required. However, coroners' inquiries are part of English law and are a matter for Westminster, whereas FAIs are a matter for us. It is Scots law that bars us from investigating deaths abroad at the moment. I am sure that we will debate the issue further, although it is clear that matters relating to defence are reserved.

The review should be wide ranging and should include consideration of the position of Scots who die in war zones assisting others, including aid workers with Oxfam, Medical Aid for Palestinians or Save the Children, and even construction workers in combat zones. However, we should amend Scots law first.

We know that the main purpose of fatal accident inquiries is to investigate sudden, unexplained or suspicious deaths. Until something happens, many people are unaware of the investigation role of the procurator fiscal. I hope that at the end of the review that role will remain with the Crown Office. However, many families that have been involved in a fatal accident inquiry think that they should have representation, at least to help them understand the proceedings. It is right that the Cullen review will consider that issue, in which Labour will take a great deal of interest.

It is important that families get justice and that they know how to get answers, if they want them. We know that some families will not want to know the answers, but many will. There is a parallel situation in Scottish courts, because often when watching proceedings families do not understand what is happening. That has led to a demand for legal representation. I do not have a settled view on whether that is the right way forward, but some change must happen to ensure that families feel part of the process and get the answers that they need.

FAIs should continue to take place at the discretion of the Crown, but perhaps families should be able to challenge a decision not to hold an FAI, if there are grounds for doing so. Clear lines must be drawn on the issue of which deaths will be investigated and which will not, because we do not want to open the floodgates. At the moment, between 50 and 70 FAIs are under way in Scotland. It is important for the Cullen review to address the issue of how any expansion in the number of FAIs would be resourced. I presume that that is why the review will consider whether sheriffs should continue to make decisions on FAIs.

The review will also consider whether recommendations by sheriffs should be binding. At this early stage, we are listening to the arguments for and against that proposal—we do not have a clear view on it. However, any FAI should have a clear purpose, and the public interest must always be a consideration.

FAIs should continue not to attribute blame or guilt, except in cases in which such a move would result in criminal proceedings. Moreover, we ought to consider how an FAI's findings should be treated, and acknowledge that a sheriff's findings must be given their place in the system. Although I am not wholly convinced that FAI decisions should be binding, we must ensure that any findings are taken seriously and are given a certain amount of status.

As the Solicitor General has rightly pointed out, a number of reviews on aspects of our legal system are currently under way. As other members will no doubt make clear in relation to FAIs, we in the Labour Party feel that the recurring theme of these reviews and inquiries should be not only that our systems must be made more efficient but that the victims and families are put at the centre. I do not have the impression, for example, that they are central to the review of civil justice—I hope that we will discuss that matter in due course.

It is important that families get justice, that they understand and feel part of the system and that they know when they can and cannot challenge it. I wholly welcome the review and this debate.