Meeting of the Parliament 10 December 2015
I acknowledge Patricia Ferguson’s significant involvement in this legislative process following the withdrawal of her own bill, and her co-operation with the Scottish Government at stage 2. I thank the witnesses and stakeholders for their insightful evidence, which has informed the committee’s scrutiny of the bill.
It is not surprising that, 30 years after the system of FAIs was enacted, significant reform and modernisation of it were required. In 2009, Lord Cullen’s review of the law governing FAIs made a number of important recommendations, many of which are provided for by the bill.
During its stage 1 scrutiny, the Justice Committee identified a number of weaknesses that needed to be addressed at stage 2. For example, a common criticism from bereaved families was about the long delays before the commencement of inquiries, which can be aggravated by patchy communication from the Crown Office and Procurator Fiscal Service. Concern was expressed about the fact that the Scottish Government did not include a provision reflecting Lord Cullen’s recommendation that early hearings should be held, especially because early hearings would not only require the procurator fiscal to keep relatives informed of the progress of the investigation but would, crucially, focus attention on holding the FAI as quickly as possible.
However, following the commitment of the Solicitor General to produce a milestone charter outlining what families can expect from the COPFS in relation to timings of investigations and decision making, the committee came to the view that early hearings are no longer necessary.
In relation to FAIs into deaths abroad, the Justice Committee questioned the requirement that the body must be repatriated to Scotland for the FAI to be held. Taking into account evidence that occasionally exceptional circumstances would render that impossible, the Scottish Government amended the bill accordingly at stage 2.
I turn to the stage 2 amendments on legal aid for families and the amendments on mandatory inquiries—albeit with an opt-out for the Lord Advocate—into the deaths of individuals who have been detained compulsorily under mental health legislation. The recommendations from Lord Cullen were not provided for by the bill as introduced, but amendments to provide for them were voted for by a majority of the Justice Committee at stage 2. I still consider that the amendments relating to mental health detainees struck the right balance between ensuring that the mandatory FAI would not be carried out unnecessarily and ensuring the protection of the deceased’s rights. Moreover, the amendment that dealt with legal aid recognised that the Lord Advocate represents not the interest of the families but the public interest.
Today, the Scottish Government has overturned both those amendments. Two consequences will flow from that, the first of which is the laying bare of the total absence of checks and balances in the decision making of this Scottish National Party majority Government. That continues to be, justifiably, an issue of grave concern.