Meeting of the Parliament 10 December 2015
I support amendment 1, in my name, and I oppose amendment 13, in the name of the minister.
My stage 2 amendment, which was agreed to by the Justice Committee, sought to ensure that one of the key findings of Lord Cullen’s report on FAIs would be implemented—namely, that civil legal aid would be available to the families of the bereaved to allow them to be represented at an FAI.
As the Parliament is aware, the bill has its genesis in the review of FAIs that was undertaken by Lord Cullen at the request of the Scottish Government. Lord Cullen made two particularly important points in relation to legal aid for families who wish to participate in FAIs. The first was that relatives often believe that the procurator fiscal attends an FAI to look after their interests if they are unrepresented, but the Crown Office and Procurator Fiscal Service’s own guidance makes it clear that that is not the case and indicates that the role of the procurator fiscal is to represent to the court any matter that affects the public interest, not that of the bereaved families. Indeed, the procurator fiscal is perfectly entitled to decline to put questions on behalf of the families.
The second point that Lord Cullen made was that FAIs take place regardless of whether relatives consent to them. If relatives want to participate, their ability to do so without representation is limited, and they are at a considerable disadvantage in comparison with other parties. Indeed, the Faculty of Advocates stated in evidence to Lord Cullen that
“it is impossible for relatives to participate effectively in important inquiries without legal representation”,
while Sheriff J P Murphy observed that the relatives
“should not be expected to be capable of self-representation in the traumatic situation of an FAI. I have never seen a lay person do it adequately.”
My stage 2 amendment had the effect of disapplying the normal financial conditions and thresholds, and it required ministers to come forward with a special scheme of conditions for relatives who were involved in FAIs. I was deliberately not prescriptive about what those regulations should be but instead left to ministers the job of drawing up a scheme that would implement those intentions. I did so in the context of a presumption that legal aid would be available and that families would be able to be represented throughout the process and would not find that the cash had run out part way through an FAI, as has happened.
Amendment 13 would have the impact of removing the entire provision, which would mean that bereaved families would not have access to legal aid. It seems to me that that is a basic principle, and it is one that I hope Parliament will uphold by rejecting amendment 13.
Amendment 1 seeks to ensure that when ministers bring forward the scheme for legal aid that was agreed to at stage 2, as I hope they will, they are required to do so by affirmative resolution. That would ensure that Parliament had the opportunity to consider whether the provisions of the Scottish Government’s scheme fulfilled Parliament’s objectives.
I move amendment 1.