Hansard

As we have heard, fatal accident inquiries into the circumstances of deaths are undertaken in the public interest in order to determine the time, place and cause of death and to establish whether lessons can be learned in order to prevent similar fatalities in the future. They are intended to be inquisitorial rather than adversarial, and they do not attempt to allocate criminal guilt. I think that we all agree that they should continue to operate in that manner.

The current legislation has for some time been recognised as being inadequate. As long ago as March 2008, shortly after Lord Cullen was asked to conduct his review of the fatal accident inquiry process, a debate was held in Parliament on the inadequacies of the system, and members’ speeches were informed by their direct knowledge of the experiences of their constituents.

Nine of Patricia Ferguson’s constituents died when ICL Plastics Group’s Stockline Plastics Ltd factory exploded in May 2004, and it was because of frustrations with the delays in the system—a judge-led public inquiry was not held for four years—that Ms Ferguson introduced to Parliament in November last year her proposal for the Inquiries into Deaths (Scotland) Bill. She had consulted on draft proposals in August 2013, and Lord Cullen had reported his findings in 2009. The Scottish Government responded in 2011, but did not introduce its bill until after Patricia Ferguson’s bill had been introduced. This may seem to be cynical, but I wonder whether the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill would be with us today if Patricia Ferguson had not started the ball rolling with her member’s bill.

Nevertheless, having been introduced in March, the Fatal Accidents and Sudden Deaths etc (Scotland) Bill has progressed fairly rapidly. As members know, Patricia Ferguson agreed to withdraw her bill and instead to work with the Government on amendments. Her bill sought to introduce time limits within which certain decisions should be taken and family members informed. During the stage 1 evidence taking, the Solicitor General for Scotland advised the Justice Committee of her intention to draw up a charter that would advise what bereaved families could expect with regard to communication, and a copy of the draft charter was circulated to committee members over the summer. At stage 2, Patricia Ferguson, in agreement with the Government, submitted an amendment to put that charter on a statutory basis. She and the Scottish Government also agreed on an amendment to require ministers to prepare an annual report on sheriffs’ recommendations relating to FAIs, and some clarifying amendments have been agreed to this afternoon.

I mention those two amendments because one of the Justice Committee’s recommendations was that the bill be amended to include some additional aspects of Patricia Ferguson’s bill. Even as amended, the bill does not address all the issues that she hoped to cover in her bill, but she will speak in the open debate and will, no doubt, comment on those issues. Neither does the bill address all of Lord Cullen’s recommendations, although it may be that the Government plans to bring some of those things into effect later on. However, the bill improves on the current legislation and is, therefore, welcome.

I am pleased that my modest stage 2 amendment was accepted so that the bill now gives representatives of the trade union of which the deceased was a member at the time of their death an automatic right to attend a fatal accident inquiry, thereby giving the trade union parity with the deceased’s employer. My original amendment also mentioned staff associations because I was keen for bodies such as the Scottish Police Federation and the Association of Scottish Police Superintendents to have the same entitlement to attend an inquiry when one of their members has died. I am grateful to the Scottish Government for improving the way in which that was expressed in its stage 3 amendments.

The Government amended the bill at stage 2 to enable an FAI to be held when a death has occurred abroad, even if the body cannot be repatriated. There are circumstances, for example deaths at sea, in which retrieval of the body is not possible. There being no possibility of a burial or a cremation ceremony is very upsetting for families—even without the law also debarring the possibility of a fatal accident inquiry being held in the public interest.

At stage 1, Flt Lt James Jones brought to us the issue of service personnel who die in service in Scotland. I am pleased that the United Kingdom Parliament is discussing that and I hope that there will be a resolution of the issue. I, too, am grateful to Flt Lt Jones for drawing our attention to the issue.

Patricia Ferguson also lodged an amendment that had majority support in the committee and which would have ensured that families could be legally represented through the complexities of a fatal accident inquiry by removing the reasonableness test for eligibility for legal aid. We are disappointed that the Scottish Government has chosen to delete that provision today, because it continued to have the support of all the opposition parties in Parliament, especially given Ms Ferguson’s erudite explanation of the need for families to be confident at the commencement of the FAI process that they will receive legal aid.

It is notable that the families of people who die in prison are now treated differently in this regard from the families of people who die at work or in the streets.

The committee, on majority vote, also amended the bill at stage 2 to implement Lord Cullen’s recommendation to make FAIs mandatory when people die when they are in compulsory mental health detention. At the time, we were supported by third sector organisations, including Enable, in their submissions to Lord Cullen’s review, and we had also been told that coroner’s inquiries are mandatory in such circumstances in England and Wales.

However, several organisations, health professionals and—crucially—mental health patients and their families subsequently wrote to both the Government and MSPs to ask that the amendments be deleted from the bill and for the bill to revert to the original wording, which provides for discretionary FAIs in such circumstances. As I said during consideration of the stage 3 amendments, my correspondence yesterday with Enable indicated that it would be content with that change, so long as adequate assurances are given that the review of the investigation that is required by section 37 of the Mental Health Act 1983, of deaths of patients who, at the time of death, are detained in hospital under mental health law, is progressed as a matter of urgency. We heard today that the order to do that was laid yesterday and that the review will be undertaken as soon as possible. It was worth while to amend the bill at stage 2, in order to get that reassurance today. I know that everybody will grateful for that.

Despite our disappointment about the deletion of Patricia Ferguson’s amendment on legal aid, we believe that the bill has been improved by comparison with Patricia Ferguson’s bill and by the subsequent amendments that were agreed at stages 2 and 3. We will support it in this evening’s vote.