Hansard

On behalf of Labour members, I thank the clerks, the Scottish Parliament information centre and the witnesses who contributed to our stage 1 consideration.

On 7 March 2008 the justice secretary at the time, Kenny MacAskill, announced a review of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, which was to be conducted by the Rt Hon Lord Cullen of Whitekirk, a former Lord President of the Court of Session. A debate took place in the Scottish Parliament on 27 March 2008, led by the Lord Advocate, during which members of all parties expressed concern over the functioning of the 1976 act. Lord Cullen reported in November 2009, but it took until 2011 for the Scottish Government to publish its response, and it took a further three years for it to publish a consultation on proposed legislative change, which it did in July 2014. The Government bill was finally introduced on 19 March this year, five and a half years after Lord Cullen had reported.

The Justice Committee agreed to the general principles of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill, which takes forward some, but not all, of the recommendations of Lord Cullen’s 2009 report on his review of fatal accident inquiry legislation. However, that was not the only bill to address the recommendations. While the committee took evidence on the Government bill, it also considered the alternative approach that was offered by Patricia Ferguson’s member’s bill: the Inquiries into Deaths (Scotland) Bill.

Members who, like me, sat in this Parliament in 2004 will recall the support that Patricia Ferguson gave to her constituents who were affected when ICI’s Stockline Plastics factory exploded on 11 May 2004, with the loss of nine lives. Her experience of supporting her constituents and her frustration at the lack of action by the Scottish Government following Lord Cullen’s review in 2009 led her to draft a proposal for a member’s bill in August 2013 and, following consultation, to introduce her bill in November last year.

The Justice Committee’s stage 1 report makes reference to the member’s bill and the ways in which it differs from the Government bill, but it does not make recommendations about the member’s bill. Instead, the committee published a shorter stage 1 report on Ms Ferguson’s bill and it anticipated that both bills’ stage 1 debates might take place on the same day. I do not know whether we made a formal recommendation to that effect, but it certainly seemed to be the favoured way forward when we discussed our reports on both bills. I understand, however, that Scottish Government officials thought that it might be too confusing for members to consider two bills that cover the same area of policy on the same day. In the Justice Committee we frequently have more than one bill before us on the same day.

Labour members are disappointed that we are not debating both bills on the same day. I tabled an amendment to the stage 1 motion on the general principles of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill, which reflected the Justice Committee’s recommendations on how proposals in the two bills might be considered together. Unfortunately my amendment was not selected for debate today, despite assurances from the chamber desk that it was competent.

The current legislation—the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976—limits mandatory fatal accident inquiries to deaths in work-related accidents or deaths that occur in legal custody. The Lord Advocate has discretion to decide not to hold a mandatory FAI into deaths in work-related accidents or deaths that occur in legal custody if the circumstances of the deaths have been established during criminal proceedings. If it is in the public interest and lessons can be learned to prevent similar deaths from occurring in future, the Lord Advocate can also decide to hold a fatal accident inquiry in other circumstances if a death is sudden, suspicious or unexplained.

The bill does not take forward a number of Lord Cullen’s recommendations. For example, he recommended that the scope of the bill be extended to include children who die in residential care, other than secure accommodation, and deaths of people during compulsory detention by a public authority.

The Scottish Human Rights Commission agreed with Lord Cullen that fatal accident inquiries should be mandatory for deaths of persons who are held in mental health detention. However, in a case in which the Mental Welfare Commission for Scotland’s investigation had established the circumstances of the death, the Lord Advocate would have discretion not to hold a fatal accident inquiry. Families against corporate killers agreed with the position of the Scottish Human Rights Commission, considering that people who are held in compulsory detention are amongst some of the most vulnerable.

In order to keep families informed of progress, Lord Cullen suggested that an initial early court hearing be held shortly after the reporting of the death to the Crown Office and Procurator Fiscal Service. In evidence to the Justice Committee, he went even further and suggested that an earlier meeting take place to inform family members about process and timescales. However, the status that such a meeting would have was unclear, and, given that the Solicitor General’s recently published milestone charter should cover the information that would be included in such a meeting, the committee felt that this early meeting would not add anything.

Under the bill, fatal accident inquiries remain mandatory where someone dies in a work-related accident or in legal custody; the mandatory category is extended to children who are kept in secure accommodation; and discretionary fatal accident inquiries are extended to deaths abroad where the body is repatriated. A number of witnesses including the National Union of Rail, Maritime and Transport Workers, which represents workers employed at sea, argued that the bill should give the Lord Advocate discretion to hold an FAI without the body being repatriated, as lessons could still be learned in such circumstances. We welcome the Scottish Government’s response that it intends to lodge an amendment at stage 2 to allow the Lord Advocate discretion to permit a fatal accident inquiry in some circumstances when it has not been possible to retrieve the body. We also welcome the provisions in the bill that enable an FAI to be reopened under certain circumstances.

As has been mentioned, a strange anomaly was uncovered during the bill’s consideration as a result of evidence from a member of the public. I think that it came as a surprise to committee members and the ministers that fatal accident inquiries cannot be held for service personnel on active service who die in Scotland, even though in England and Wales coroner’s inquests can be held in such circumstances. We were advised that that was because service personnel are appointees of the Crown, not employees. I welcome the minister’s announcement that the UK Government is considering what I think is called a section 140 amendment, because of the reserved aspects, and I hope that the matter will soon be resolved to enable the families of service personnel who die in Scotland to have the death of their loved one investigated in the same way that it would be if the person had died in England and Wales.

Addressing delays in holding fatal accident inquiries and keeping families informed of progress were major concerns for committee members, who heard a number of possible routes in that respect. Bereaved families should be central to the fatal accident inquiry process and they and the appropriate trade unions and staff associations must be kept informed and enabled to participate. The draft milestone charter, which has already been referred to, sets out commitments to bereaved families on the timescales by which certain communications with families should take place at various stages in the process. Bereaved families must be better included in the inquiry process and I look forward to the stage 2 amendments that, as the minister indicated, will place the charter on a statutory footing and improve accountability to families.

In its briefing on the bill, the Law Society voices concern that Lord Cullen’s recommendation regarding the provision of legal aid to families without their having to demonstrate reasonableness is not reflected in the bill. It points out that because FAIs are fact-finding inquiries in the public interest they can be very complex and families might be in particular need of legal advice.

The Government bill requires that, where the Lord Advocate decides not to hold an FAI, whether it be discretionary or mandatory, written reasons be provided to families on request. In its stage 1 report, the committee recommended that the requirement that the information be requested be removed and that the information be provided to families as a matter of course.

Lord Cullen suggested that the Scottish Government publish sheriff’s recommendations, and the Government bill proposes that that be done via the Scottish Courts and Tribunals Service website, instead of the Scottish Government publishing the material itself. However, it is not clear on whom the duty to monitor the implementation of such recommendations would rest. That is a particular concern; for example, in its briefing, the Law Society comments that no sanction appears to be proposed against parties that fail to comply or co-operate with the sheriff’s recommendations.

Patricia Ferguson hoped to address the matter in her bill by enabling a sheriff to make legally enforceable recommendations where appropriate; in other words, the party at which the recommendation was aimed would be within Scottish jurisdiction and the recommendation would be capable of being enforced. As currently drafted, Ms Ferguson’s bill does not make that as clear as it could be but, during the committee’s evidence-taking session on her bill, Ms Ferguson mentioned amendments to the bill, and I think that that would have been the effect of those amendments. If that solution is not enforceable, we urge the Government to consider how enforceability can be strengthened under its own proposals, because we believe that that is still an omission in the bill that will lead to the distress of families whose loved ones have died in those particular circumstances.

Scottish Labour will vote for the bill at stage 1, but we do so very much in the hope that some of the suggestions that have been made by our colleague Patricia Ferguson in her bill will be included as amendments at stages 2 and 3.