Hansard

I thank my colleague Gil Paterson for introducing the bill and for his hard work and tenacity on behalf of victims and their families over many years. The bill is sympathetic and understanding of the grief and anguish felt by those who have lost a loved one, often in the most appalling circumstances, and it reflects a desire to reduce delays or difficulties in allowing grieving victims’ families to hold a funeral following the release of the body. However, there is no evidence to suggest that delays in the return of bodies are caused by inappropriate action or inaction on the part of defence agents.

Since October 2018, there has been a non-legislative forensic pathologist consultant in place to give defence agents greater confidence in initial post-mortem conclusions and to avoid multiple post-mortem examinations without compromising justice. As we have heard, in the year after the protocol was passed, only two defence post mortems were requested, with none since July 2019. That shows that the protocol is working. The Law Society of Scotland suggested that an evaluation of the protocol’s success or otherwise should be undertaken to establish whether there is any absence of due diligence in relation to its application by the defence and whether further measures are needed.

In its current form, the bill could create more defence post mortems rather than fewer. If applications are based on an arbitrary timescale, the provisions could have the opposite effect to the bill’s intentions and could inadvertently exacerbate the stress and pain that are experienced by families.

A defence with only 14 days to request a post mortem before losing its right to do so is much more likely to request one. An increase in applications, which the Law Society says is inevitable, would burden courts with the time and the associated costs needed to support such a process, while it is reasonable to assume that an increase in applications resulting in more post mortems would also be felt by forensic pathologists—of which there is a shortage, as we have heard.

Further scrutiny—of both the bill and the protocol—is required to investigate how best to improve the bill and to ensure that it has no unintended consequences. Covid-19 and the measures that it necessitates continue to impact on the workings of the Parliament. In its stage 1 report, the Justice Committee indicated that it was unable to provide the necessary level of scrutiny, as lockdown restrictions delayed the committee’s hectic work programme. Indeed, this feels like déjà vu, given that we were in exactly the same position only five days ago with Claire Baker’s Culpable Homicide (Scotland) Bill.

Presiding Officer, one wonders why bills are being brought forward to stage 1 without effective scrutiny, which is undoubtedly leading to disappointment both for the member concerned and for those supporting the bill’s aims. We must deliberate consistently and without fear or favour.

The bill before us comes from a place of humanity and a strong desire to help families who are enduring unimaginable grief. Without appropriate scrutiny, however, we risk passing legislation that is incomplete, possibly with unintended and unforeseen consequences.

It is therefore with great regret that I cannot support the bill today.