Hansard

I welcome the stage 1 debate on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. I thank the many witnesses for their valuable contributions and the Justice Committee clerks for their work in delivering a comprehensive report.

It was the evidence that was provided by one witness, Flt Lt James Jones, that highlighted that no mandatory FAIs are carried out in Scotland following the deaths of service personnel abroad. I am therefore pleased that agreement in principle has been reached with the UK Government to ensure that a mandatory FAI can be held in those circumstances, in the same way as investigations into such deaths are carried out by a coroner in England and Wales.

I acknowledge and pay tribute to the extensive work that Patricia Ferguson has done on her bill, which covers the same policy area and which we will discuss more fully next week.

In 2008, in recognition of the fact that FAIs required significant reform and modernisation, Lord Cullen carried out a review. The treatment of bereaved families and the lengthy delays to the commencement of inquiries, aggravated by patchy communication from the Crown Office and Procurator Fiscal Service, formed the basis that prompted many of the review recommendations and the subsequent provisions in the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. The affected families have already endured the distress and pain of losing a loved one and, although FAIs are undertaken in the public interest, they undoubtedly significantly help to offer resolution and much-needed closure for relatives.

However, some important recommendations that Lord Cullen made in his review are not in the bill, including the suggestion of holding an early hearing when an FAI is mandatory. When he gave evidence to the committee, Lord Cullen said that he proposed such a procedure

“simply to let the families and other persons who are directly involved know what is going on so they can be satisfied that all proper steps are being taken to progress matters.”—[Official Report, Justice Committee, 5 May 2015; c 5.]

Stakeholders had mixed responses to that suggestion, with campaigners broadly in favour of the idea. Lord Gill, on the other hand, expressed doubts that formal meetings were necessary when the same outcomes could be achieved if the Crown established

“good protocols of conduct whereby the relatives would be kept in touch.”—[Official Report, Justice Committee, 19 May 2015; c 37.]

Significantly, Lord Cullen stated:

“If the COPFS has made improvements such that fears about the family not being kept fully in the picture are groundless, that makes an early hearing of the type that I described ... unnecessary.”—[Official Report, Justice Committee, 5 May 2015; c 5.]

In response to some of that evidence and the legitimate concern that there is a pressing need to reduce the unacceptable delays that adversely affect bereaved families, the Solicitor General committed to producing a milestone charter. It outlines what families can expect from the COPFS in relation to the timings of investigations and decision making. The priority must be to keep relatives informed while concentrating the minds of the COPFS on the work that must be done to avoid delays.

The committee has yet to receive a draft of the charter—perhaps the minister could give us some idea of the timescale for when it will be available—but, if it measures up to expectations, it will most certainly be a positive step forward.

I turn next to the Cullen review recommendation that a mandatory FAI should be held when someone was, at the time of their death, subject to compulsory detention by a public authority, which would include detention under mental health legislation. During evidence sessions, concerns were expressed about how the deaths of those who were detained under mental health legislation are investigated in practice. However, in considering its stage 1 report, the committee concluded that there is no need for mandatory FAIs in such circumstances, because some deaths of those who were detained under mental health legislation are straightforward—for example, they clearly result from natural causes.

Given that those who are detained under mental health legislation are some of the most vulnerable in our society, I revisited Lord Cullen’s review and noted that he states that

“even investigations into deaths by natural causes may reveal unsafe conditions ... it is in the public interest that an FAI should be held into the deaths of those detained by the state, especially those who are most vulnerable.”

Therefore, even in the case of so-called straightforward deaths, such as deaths from natural causes—and despite the comments from the Mental Welfare Commission and others, to which the minster referred—I believe that there are still many issues to consider before rejecting the need for a mandatory FAI to be carried out. There is merit in revisiting the issue at stage 2.

I would like to highlight two further areas. The first is the withdrawal of the reasonableness test—to which Elaine Murray referred—for legal representation for the deceased’s relatives. Although I appreciate that it is not an access to justice question in the conventional sense, Lord Cullen emphasised that the crucial question is

“whether there is a public interest ... in families having that degree of support.”—[Official Report, Justice Committee, 5 May 2015; c 8.]

I urge the Scottish Government to consider the question carefully at stage 2. Secondly, Lord Cullen recommended the creation of a central team to co-ordinate and monitor FAIs. That idea seems sensible and there is a precedent for it in the form of the domestic abuse task force.

If the improvements to the bill are to be realised, it will be vital for the Crown Office and Procurator Fiscal Service, which is already under immense strain, to have the resources in place to deal with FAIs efficiently and effectively. I confirm that the Scottish Conservatives support the general principles of the bill.