Hansard

This is the second of two members’ bills that have come to the chamber for debate this month after having been examined by the Justice Committee. As I explained in the debate last week on Claire Baker’s Culpable Homicide (Scotland) Bill, the Justice Committee has been unable to devote to the two bills the full and detailed consideration that they deserved. In part, of course, that is due to the pandemic and its impact on parliamentary business, but in greater part it is due to the quantity of Government legislation that has somewhat deluged the committee and that we are currently wading through.

The committee treated Mr Paterson’s bill in the same way as it treated Ms Baker’s, which was debated last week. That is to say that we took evidence from the member in charge of the bill and published a short report inviting the Government to respond in advance of today’s stage 1 debate. Accordingly, we took evidence from Mr Paterson in September and published our report in November, and the Government’s response was received in January. I thank both Mr Paterson and the cabinet secretary for their co-operation and understanding of the constrained circumstances under which the Justice Committee has to operate now.

The evidence that we took and the views that were submitted to Mr Paterson’s consultation raised three matters that I should draw to the attention of the chamber. First, it has to be said that the problem that Mr Paterson’s bill seeks to solve does not appear to arise very often. Despite the fact that Mr Paterson told us that the problem is fairly common, the most recent year for which statistics are available suggests that only two post mortem examinations were requested by the defence—only two in an entire year. That does not lessen the very real anguish that a family might have to endure in any particular case in which the body of the deceased cannot be released. However, it does suggest that the number of occasions on which the problem arises is very small.

Secondly, submissions from the Faculty of Advocates and others suggest that, when there is a problem, it is caused by a shortage of available forensic pathologists. If that is the problem, legislating for a maximum period of time within which the defence can request a post mortem examination, as the bill does, is not going to solve it.

Thirdly, the committee’s attention was drawn to a protocol, published by the Crown Office in 2018, that—as Mr Paterson acknowledged—has been helpful in addressing the issues. On that point, I highlight the view of the Law Society of Scotland, which said that

“a reasonable amount of time should be allowed to ascertain how the protocol is working ... in practice”

before the Parliament legislates on the matter.

In the light of those considerations, the Justice Committee came to the following conclusions. First, it is important that the body of a deceased relative is released to the grieving family in a timely fashion, keeping delays to a minimum. Secondly, the number of times when that fails to occur are few and far between; nonetheless, each delay will cause considerable pain and distress for the family involved. Finally, although the committee had some sympathy with the policy intentions that underpin the bill, we noted a range of issues that were raised with the member in charge of the bill. I have outlined those to the chamber in my remarks this afternoon.

Taking all of that into account, the Justice Committee was unable to make a recommendation to the Parliament on the general principles of the bill, and I will leave it there.