Meeting of the Parliament 10 December 2015
As Patricia Ferguson said, this group of amendments relates to the provision for legal aid for FAIs. Patricia Ferguson’s amendment 1 is relevant only if her stage 2 amendment on legal aid remains part of the bill and, for reasons that I will explain, amendment 13 will reverse that amendment.
The bill as amended at stage 2 now provides for the establishment of a family charter, which will, as one of its effects, formalise the engagement between the bereaved family and the Crown Office and Procurator Fiscal Service. Among the issues that the charter will cover, the procurator fiscal will engage with the family on matters where they seek clarity on the circumstances of the death of their loved one from the FAI to inform the Crown’s questions of witnesses, which will seek to serve the public interest, as Patricia Ferguson said.
At present, if the bereaved family wish to ask questions that the fiscal cannot ask in the public interest, they may be entitled to legal aid. They will typically qualify for legal aid if they meet the eligibility criteria. The key tests for agreeing legal aid are about probable cause and reasonableness. Probable cause will always be satisfied where a relative has a right to participate in a fatal accident inquiry, so the main question for the Scottish Legal Aid Board will often be about reasonableness.
To give a real-life example of the reasonableness test in action, I am aware of an example in which a relative was granted legal aid to explore specific mental health issues of the deceased that had been raised prior to that person’s death. I make it clear that the reasonableness test will always be satisfied where a relative of the person requiring legal aid has died in prison.
Civil legal aid has generous financial eligibility thresholds to ensure that anyone who is eligible will be granted legal aid. Instead of controlling spend by restricting the types of cases that are eligible or capping the expenditure in any given year, tests of reasonableness and probable cause are applied as well as financial eligibility to ensure that public funds are appropriately directed.