Fatal Accident Inquiries

– in the Scottish Parliament at 2:15 pm on 27th March 2008.

Alert me about debates like this

Photo of Alex Fergusson Alex Fergusson None 2:15 pm, 27th March 2008

The next item of business is a debate on S3M-1638, in the name of Frank Mulholland, on fatal accident inquiries. Members might wish to note that a revised section A of the Business Bulletin has been produced—the specific revision is that amendment S3M-1638.1, in the name of Margaret Smith, which had previously been selected for debate, has been replaced by amendment S3M-1638.2, also in the name of Margaret Smith, which has been lodged this afternoon and which I have now selected for debate. On that basis, amendment S3M-1638.1 has been withdrawn.

The Solicitor General for Scotland (Frank Mulholland):

I welcome the opportunity to open today's debate. On 7 March, the Cabinet Secretary for Justice announced that he and the Lord Advocate had agreed that there should be a review of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. The intention is that the review will ensure that the legislation is fit for purpose for the next 30 years, and that it will improve the work that is done in this hugely important and sensitive area, with due regard for the concerns of bereaved relatives.

The Government has asked the right hon Lord Cullen of Whitekirk, former Lord President of the Court of Session, to carry out the review on its behalf, with a view to reporting to the Lord Advocate and the Cabinet Secretary for Justice within one year of the start of the review with conclusions and recommendations. We are privileged to have a man of Lord Cullen's calibre conducting the review. He has extensive experience of this kind of work, having conducted inquiries into the Dunblane atrocity and the Piper Alpha and Ladbroke Grove disasters. He will bring his wealth of knowledge and experience to the review, and I am sure that I speak for the Parliament in expressing my gratitude to him for agreeing to undertake this important review.

Following the announcement on 7 March, today's debate is an opportunity for members of the Parliament to raise and discuss issues that they are aware of, which I am sure will be of assistance to Lord Cullen when he begins to think about the issues that are necessary for consideration.

It is clear that the time is right for a review of the system of public inquiries into deaths. Although the current system has, on the whole, served Scotland well and indeed has been the subject of favourable comment by the House of Lords sitting in its judicial capacity, it is acknowledged that the legal framework, processes and societal attitudes have evolved since the introduction of the legislation. For example, the incorporation of the European convention on human rights into our law has been significant in this area. Article 2 concerning the right to life has been the subject of judicial consideration in the recent cases of Emms and Black and Kennedy, and any system of inquiry into deaths must be compatible with the convention.

The review will provide the opportunity to explore alternative procedural and structural arrangements, consider in depth the concerns and wider issues that have been raised from time to time, and enable the delivery of an effective and practical system of judicial inquiry into deaths that is fit for the 21st century. The remit of the review, which I will touch on in more detail shortly, was set out on 7 March. The Government, informed by this debate, will work with Lord Cullen to ensure that the key issues are identified.

Before speaking about some of the specific issues that the Government thinks should be addressed, I will say a little about the context of the review. As the Parliament is aware, some work has been completed and more is under way to ensure that the criminal and civil justice systems are modern, efficient and cost effective. Significant developments include Lord Bonomy's review of the High Court; the review of summary justice; Lord Gill's review of the civil court system; and the introduction of the vulnerable witnesses legislation. Lord Cullen's review will form part of a suite of measures to ensure that the Scottish legal system continues to deliver justice in the 21st century.

The current system of fatal accident inquiries has, on the whole, worked well. It has provided a well-structured opportunity for the judicial examination of deaths in the public interest. However, the legislation that provides for fatal accident inquiries dates from 1976 and concern has been raised about the continuing suitability of the arrangements. For example, concerns have been raised about delays in fatal accident inquiries, either between the date of death and the start of the inquiry or between the start of the inquiry and the sheriff's determination.

Concerns have also been raised about legal representation for bereaved families and the injured; the status of the sheriff's recommendations; whether fatal accident inquiries are the best method of investigating deaths in specific circumstances, such as deaths in hospital and other health care situations; whether other persons, in addition to sheriffs, should be able to conduct inquiries; whether determinations should be reconsidered if significant new information comes to light; and whether fatal accident inquiries should be continuous or whether they may be adjourned to allow people to conduct research or obtain further expert opinion.

I am aware that some of those concerns are shared in the Parliament by members of all parties. Recently, the Justice Committee has considered a number of aspects of fatal accident inquiry procedures that have been drawn to its attention and which have caused the committee concern. It is right and proper that the Justice Committee has been exploring the issues. We need a wholesale re-examination of the legislation that considers the matters that concern the Justice Committee but also asks broader questions, such as whether, in certain cases, alternative models of decision-making procedure might provide a more effective inquiry than the current arrangements, and how the system of fatal accident inquiries interacts with other forms of investigation such as inquiries by the Health and Safety Commission.

I have mentioned some of the wide-ranging issues that we would like the review to address. Others include consideration of the categories of mandatory and discretionary inquiries; the framework of procedural rules; the status and function of the application to have an inquiry; whether there is a role for expert assessors to assist the decision maker when the inquiry encompasses issues of technical complexity; and cross-jurisdiction issues—for example, whether a fatal accident inquiry can consider a death or a cluster of deaths that arose from similar circumstances in another jurisdiction. There is clearly much to be done.

The Crown Office and Procurator Fiscal Service has wide experience of investigating sudden, suspicious, unexpected and unexplained deaths. In 2007, officials investigated more than 13,000 deaths. We have taken a number of steps in recent times to review the efficiency and effectiveness of our investigation of deaths. Our practices and processes in such investigations were the subject of a review by the independent inspector of prosecution in Scotland, who highlighted many examples of good practice in our discharge of that important area of work.

We are acutely aware that the death of a loved one is a particularly difficult time for bereaved relatives, who do not necessarily wish the distressing details of a death to be aired in public. It is not appropriate for a public inquiry to be held into every death that the procurator fiscal investigates. A proportion of investigations of deaths will lead to criminal charges, but in the vast majority of cases, investigation will disclose no grounds for criminal charges or a further inquiry by a judge in the public interest.

I hope that the review and today's debate will allow the Parliament an opportunity to consider how best to serve and pursue the public interest in this vital area of work. The debate is not an appropriate forum for me to comment on the circumstances of specific cases or to explain the decisions that were made in particular investigations. However, I assure the Parliament that the investigation of deaths is treated sensitively and is always subject to thorough examination and the most anxious consideration by Crown counsel.

I endorse and support the review, which is an overdue opportunity carefully to examine the systems that we have in place.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

The Solicitor General for Scotland is opening the debate on the Government's behalf, so will he answer my question on the Government's behalf? What is the Government's timescale for achieving a Scottish legal resolution when service personnel are killed while on active service abroad? When will that be solved under Scots law?

The Solicitor General for Scotland:

I thank the member for his question, which raises an important point. The matter is reserved, because defence is reserved, so it needs to be considered and worked on with United Kingdom ministers and Government officials. I understand that work is being done to identify a solution for that important and sensitive matter.

I look forward to hearing members' views, which will contribute to the debate and inform the vision of an effective and practical system of public inquiry into deaths in Scotland that is fit for the 21st century. I wish Lord Cullen well in his endeavours.

I move,

That the Parliament welcomes the review of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, to be led by Lord Cullen of Whitekirk, which will ensure that Scotland has an effective and practical system of public inquiry into deaths which is fit for the 21st century.

Photo of Margaret Smith Margaret Smith Liberal Democrat 3:06 pm, 27th March 2008

I welcome the debate and Lord Cullen's forthcoming review, which will be the first proper review of the legislation on fatal accident inquiries in more than 30 years. I agree that it is vital to ensure that Scotland has a robust and effective system for public inquiry into sudden, unexplained or suspicious deaths and that that system can keep pace with other changes to the country's justice system and with the ECHR. We echo the Solicitor General's thanks to Lord Cullen for undertaking that important work.

Fatal accident inquiries can play a vital role in providing bereaved families with answers at a time of great distress and, in theory, they can provide for changes to prevent further loss of life, protect against future tragedies and reassure the public after serious incidents. However, as with most systems, a number of concerns are felt about how the FAI system works in practice, so the Liberal Democrats welcome the review under Lord Cullen. Close scrutiny is important to improve not only the system, but public confidence in it.

I will cover some of the grounds for concern, but I begin by focusing on the amendment in my name, which I sincerely hope that MSPs across the parties will feel able to support. I thank the Presiding Officer for allowing me to withdraw my earlier amendment and to lodge an alternative amendment.

Every bereaved family is worthy of our support, assistance and respect, but surely the families of those who have given their lives in the service of our country deserve the right to have the circumstances of their deaths dealt with here in Scotland timeously and reasonably. The 1976 act does not cover deaths that occur overseas. In the past few months, I have highlighted the unacceptable situation whereby grieving families must cope with significant delays as well as long journeys to attend coroners' inquests in the south of England, where the bodies of their loved ones have been repatriated.

I know that the Scottish Government and the UK Government have discussed options. One option might be to amend the 1976 act to allow sheriffs to hold inquiries into the deaths of military personnel who are normally domiciled in Scotland and who die on active service overseas.

My concerns are shared by many in this Parliament and at Westminster and by several SNP members. In January 2007, Alex Salmond condemned the delay in forces inquests and said that the Government needed

"to take immediate action to rectify this situation now. Many service families are suffering unnecessary delays due to this problem. It is disgraceful that the Government is still not prepared to fulfil their inescapable duty to the families, to those who have made the extreme sacrifice, by ensuring that inquests are completed swiftly".

I agree with the First Minister and I urge the Government that he leads to fulfil its duty to those service personnel and their grieving families in whatever manner it can.

We have heard that the review will take a year, which is understandable, given the subject's complexity and sensitivity. However, we need to address military deaths urgently. As of November 2007, 20 Scottish soldiers had lost their lives in Iraq alone. Since 2001, a total of 253 British servicemen and women have been killed in Afghanistan and Iraq. Under the current legislation, all their deaths must be investigated by coroners' inquests in England, where their bodies are repatriated. The scale of the loss has meant huge delays in the system, because there are simply not enough staff or resources to complete the large number of inquests. The UK Government has taken steps to address those difficulties.

Only two of the inquests into the deaths of the 20 Scottish soldiers who gave their lives in Iraq were completed within a year. One family had to wait more than four and a half years for answers, and the delays continue to increase as the problem worsens.

Photo of Keith Brown Keith Brown Scottish National Party

I seek clarification. Margaret Smith has mentioned Scottish soldiers a couple of times, and her amendment mentions both

"personnel, normally domiciled in Scotland" and "Scottish military personnel". Does she mean that the inquests into the deaths of all personnel who were staying in Scotland while they were serving should be held in Scotland?

Photo of Margaret Smith Margaret Smith Liberal Democrat

Yes. I included the phrase "normally domiciled in Scotland" to clarify that.

Families who have lost loved ones through service for our country deserve our support and they deserve to know the truth. They should not be compelled to travel many miles from their homes and to wait years for answers; they should be able to see their case investigated by the Scottish legal system. The cabinet secretary and others are aware of my feelings, and I have been working with the non-Executive bills unit to produce a member's bill on this important issue. However, I would be delighted if the Scottish Government—and, if necessary, the UK Government—were to bring forward any required legislation as quickly as possible, which would mean that a member's bill would be unnecessary.

In response to a parliamentary question from me, the cabinet secretary said that he was having on-going discussions

"with the Ministry of Justice, the Ministry of Defence and the Scotland Office on how the investigations into the deaths of Scottish-based service personnel can be dealt with closer to home".

He said that there were

"difficult legal issues which have to be addressed before a solution can be found."—[Official Report, Written Answers, 18 February 2008; S3W-9013.]

I accept that the issue is complex and that it may involve changes to the Scotland Act 1998 or other legislation. However, any difficulties that it presents to politicians or bureaucrats are as nothing in comparison with the difficulties that the families face.

The UK Government is supportive of the move to allow FAIs for Scottish-domiciled soldiers, and I have heard positive comments from both Des Browne, the Secretary of State for Defence, and Adam Ingram, the former Minister of State for the Armed Forces, who said that he hoped that the law could be changed to allow FAIs to be held into the deaths of Scottish service personnel who are killed abroad. All MSPs have received today a copy of a letter from Des Browne to Kenny MacAskill, in which he says:

"Addressing these issues"— first, the fact that FAIs cannot be held for deaths that occur outside Scotland and, secondly, the need for mandatory investigation—

"is of course a matter for Scottish Ministers. The answer is for you to make a commitment to amend Scots Law in a way that can guarantee that Scottish based service families can be assured of mandatory inquiries into overseas operational deaths."

That may be only part of the picture, and I am willing to understand that it is, but at least it shows willingness on the UK Government's part to see action taken by the Scottish Government and the Scottish Parliament. This is, surely, one issue on which the SNP would have the support of the whole chamber in seizing that competence.

As the review is expected to take a year, what is the timetable for action on the issue? How long will it be before Scottish service families can be guaranteed a full and swift investigation, closer to home, into the death of their loved ones? People have raised concerns that that development would in some way open the floodgates for further extensions, or have said that I am calling for FAIs for every Scot who dies abroad. However, that would not necessarily follow if military deaths were to be a separate mandatory category. Coroners' inquests are not held into all overseas deaths, but they cover military deaths. Exemptions to the FAI legislation have already been made for oil rig workers, and I believe that we have a duty to our service personnel to make a further exception for them, even if the system is not opened up to other overseas deaths.

I move to the wider issue of fatal accident inquiries. The Crown Office has issued new guidance and has taken steps to improve training for staff in dealing with bereaved families. That is to be welcomed, but as I said at the beginning of my speech, a number of concerns remain. Many concerns have been raised with the Public Petitions Committee and the justice committees through a petition from Norman Dunning on behalf of Enable. Enable was concerned, rightly, when it found that recommendations that were made as a result of an FAI, about the care of disabled people in hospital, were not being acted on. The fact that the recommendations of FAIs are not binding means that they are not always implemented. I can imagine nothing worse than seeing one's own painful experience recreated for another family because lessons have not been learned properly from a fatal accident inquiry. The cabinet secretary has questioned whether the Government is best placed to monitor that. My answer is that the Government must do all that it can to learn lessons that could save the lives of others.

It seems reasonable to make use of outside experts to deal with technical issues and of regulatory bodies, when they are available, to enforce recommendations. Setting up a statutory duty to report the matter to the relevant person, who might have the power to take the required action—if such a person can be identified—with statutory duties to follow up that report within a prescribed period of time appears to be a reasonable way forward. That is surely one of the key issues for Lord Cullen's review if the public are to have confidence in the inquiry system.

Clarity is vital at times of distress, and families must be properly informed of how the FAI process works so that they do not feel misled or let down by the system. The fiscal's role as a representative of the public interest has to be made clear, so that families can decide whether they require their own representation; if they do, access to that representation and to legal aid needs to be considered.

Some families may never be consoled by a system that does not apportion blame or guilt in a civil or criminal sense, but which seeks only to find out the facts surrounding a death. Others are often disappointed at the discretionary decisions that are taken regarding whether an FAI should be held in the first place. Given that there are approximately 14,000 sudden deaths each year and only 50 or so FAIs, that is hardly surprising. It is incumbent on the Crown Office to explain its decisions to families, and I believe that it tries its best to do that. However, I know of one constituency case in which a family was keen for an FAI to go ahead, despite the fact that a court case had already taken place and facts had been established.

Sometimes such disappointments hit the headlines, as they did with the decisions that were taken about individuals who had contracted hepatitis C from blood products, or when someone is killed in a road accident. More often than not, however, the families remain anonymous in their grief. I therefore welcome the fact that the review will consider the categories of mandatory and discretionary inquiries.

There are concerns about delays in the current FAI system, and many people are being caused further anxiety by having long waits for answers from FAIs. By November 2007, 30 FAI reports had been made, 13 of which related to people who had died in 2006, 10 to people who had died in 2005, and seven to people who had died before 2005, including two cases in which the person had died six years earlier in 2001. I hope that the review will consider whether there should be a set period during which an inquiry can be held.

All that points to the need for the FAI system to be properly resourced. Last year, sheriffs in Glasgow and Dundee called on the Crown Office to devote more resources to the preparation and conduct of FAIs. I hope that Lord Cullen will consider the financial implications of his recommendations.

We owe it to all families who lose a loved one in sudden, unexplained or suspicious circumstances to provide the best fatal accident inquiry system that Scotland can deliver. I hope that Lord Cullen's review will deliver that. We must act now to end the uncertainty, anxiety and delay that the current system is causing to service families in Scotland, and I call upon MSPs from all parties to support them by supporting the amendment in my name.

I move amendment S3M-1638.2, to insert at end:

"considers that there is a pressing need for the Scottish Government to enable inquiries to be held in Scotland into the deaths of military personnel, normally domiciled in Scotland, who are killed in active service overseas, and believes that the Scottish Government should give consideration to all available options, including the holding of fatal accident inquiries on a mandatory basis, so that the families of Scottish military personnel no longer have to suffer from the additional burden of attending coroners' inquests in England."

Photo of Pauline McNeill Pauline McNeill Labour 3:18 pm, 27th March 2008

I begin by welcoming the review of the legislation governing fatal accident inquiries in Scotland. I particularly welcome the choice of Lord Cullen of Whitekirk to conduct the review. As the Solicitor General said, Lord Cullen's reputation goes before him: he has presided over previous inquiries of major importance to Scotland. I pay tribute to him on behalf of the Labour Party.

The 1976 act that we are reviewing is relatively young for a piece of Scottish legislation, but it is still in need of reform. We have had a limited amount of discussion in the Parliament about the purpose and efficiency of fatal accident inquiries, although a few petitions on specific cases have gone before the justice committees, which other members will address. Clearly we can learn lessons from such cases, but I will deal with the general principles and the areas that need reform, and leave others to talk about specific cases.

First, I will deal with Margaret Smith's amendment, which we will support tonight. She is right to say that some of the detail needs to be resolved, but Labour in Scotland supports the concept of helping service families by holding hearings in Scotland as long as the same conditions that apply in the English coroners' jurisdiction apply in cases heard in Scotland. Labour fully supports what Margaret Smith is trying to achieve and we acknowledge her work in the area.

In a helpful and sensitive letter that was copied to all MSPs, Des Browne, the Secretary of State for Defence, states that although the current system ensures that, following the death of a Scottish soldier ordinary domiciled in Scotland, their family is entitled to an investigation into the death, it does not deliver the convenience of investigations close to home. That applies to many United Kingdom families.

For cases to be heard in Scotland, two things would need to change. First, the Scottish system does not allow the investigation of deaths abroad, so we do not have the jurisdiction to conduct FAIs into deaths that take place outside Scotland. Secondly, not all fatal accident inquiries are mandatory; unless we changed that, families would not have the guarantee that they have at the moment. Both matters would have to be addressed.

There will be some debate about what legislation needs to be changed. For the record, I will read from Des Browne's letter. He says:

"Addressing these issues is of course a matter for Scottish Ministers. The answer is for you to make a commitment to amend Scots law in a way that can guarantee that Scottish based service families can be assured of mandatory inquiries into overseas operational deaths. If that were to happen then it would be entirely appropriate to repatriate deceased service personnel to Scottish bases once the law has been changed. You will understand, however, that I cannot contemplate changes without your commitment to mandatory investigations."

The view of the Secretary of State for Defence is that we need to change Scots law. Labour members believe that we should make the changes that are necessary to enable such FAIs to proceed in Scotland. It may not be necessary to amend the Scotland Act 1998—we can debate whether that is required. However, coroners' inquiries are part of English law and are a matter for Westminster, whereas FAIs are a matter for us. It is Scots law that bars us from investigating deaths abroad at the moment. I am sure that we will debate the issue further, although it is clear that matters relating to defence are reserved.

The review should be wide ranging and should include consideration of the position of Scots who die in war zones assisting others, including aid workers with Oxfam, Medical Aid for Palestinians or Save the Children, and even construction workers in combat zones. However, we should amend Scots law first.

We know that the main purpose of fatal accident inquiries is to investigate sudden, unexplained or suspicious deaths. Until something happens, many people are unaware of the investigation role of the procurator fiscal. I hope that at the end of the review that role will remain with the Crown Office. However, many families that have been involved in a fatal accident inquiry think that they should have representation, at least to help them understand the proceedings. It is right that the Cullen review will consider that issue, in which Labour will take a great deal of interest.

It is important that families get justice and that they know how to get answers, if they want them. We know that some families will not want to know the answers, but many will. There is a parallel situation in Scottish courts, because often when watching proceedings families do not understand what is happening. That has led to a demand for legal representation. I do not have a settled view on whether that is the right way forward, but some change must happen to ensure that families feel part of the process and get the answers that they need.

FAIs should continue to take place at the discretion of the Crown, but perhaps families should be able to challenge a decision not to hold an FAI, if there are grounds for doing so. Clear lines must be drawn on the issue of which deaths will be investigated and which will not, because we do not want to open the floodgates. At the moment, between 50 and 70 FAIs are under way in Scotland. It is important for the Cullen review to address the issue of how any expansion in the number of FAIs would be resourced. I presume that that is why the review will consider whether sheriffs should continue to make decisions on FAIs.

The review will also consider whether recommendations by sheriffs should be binding. At this early stage, we are listening to the arguments for and against that proposal—we do not have a clear view on it. However, any FAI should have a clear purpose, and the public interest must always be a consideration.

FAIs should continue not to attribute blame or guilt, except in cases in which such a move would result in criminal proceedings. Moreover, we ought to consider how an FAI's findings should be treated, and acknowledge that a sheriff's findings must be given their place in the system. Although I am not wholly convinced that FAI decisions should be binding, we must ensure that any findings are taken seriously and are given a certain amount of status.

As the Solicitor General has rightly pointed out, a number of reviews on aspects of our legal system are currently under way. As other members will no doubt make clear in relation to FAIs, we in the Labour Party feel that the recurring theme of these reviews and inquiries should be not only that our systems must be made more efficient but that the victims and families are put at the centre. I do not have the impression, for example, that they are central to the review of civil justice—I hope that we will discuss that matter in due course.

It is important that families get justice, that they understand and feel part of the system and that they know when they can and cannot challenge it. I wholly welcome the review and this debate.

Photo of Bill Aitken Bill Aitken Conservative 3:26 pm, 27th March 2008

This is a useful debate. As members of the Justice Committee will be aware, I was minded to recommend that, as a result of a petition from Norman Dunning on behalf of Enable Scotland, we carry out an exercise on fatal accident inquiries. However, after some hesitation, we decided not to proceed. I therefore welcome the Government's decision to have a review under the aegis of Lord Cullen, as it means that we can now move on.

As members have pointed out, the relevant legislation dates from 1976, which is certainly not yesterday. We must recognise that since then there has been movement in a number of directions. The Solicitor General was quite correct to highlight the incorporation of the European convention on human rights, and a plethora of legislation has also been introduced—quite properly, I should add—under the Health and Safety at Work etc Act 1974. In that respect, it would be good if the review considered the need for interaction between the bodies that inquire into accidents.

Although I accept the general point that legislation of some antiquity should be reviewed, I should say in passing that I wish that the Scottish Government would show the same enthusiasm for reviewing certain slightly older legislation, such as the Social Work (Scotland) Act 1968. However, that is a debate for another day.

Members have already set out the debate's central issues, one of the most important of which must be the status of bereaved families at FAIs. Pauline McNeill was quite correct to say that we must consider the question of legal representation. Although those people might not be the victims of crime, they are still the victims of a tragic accident, and many of them go into the courtroom without knowing what will happen or who is who. It might be useful for them to receive some assistance, if they are unable to find it for themselves.

Another important question is what happens to the findings of an FAI. I am sure that Governments of whatever perspective would want to look at a sheriff's findings to find out whether any lessons can be learned that might obviate the likelihood of similar situations happening. However, although it is sensible to look at the findings, doing so is not compulsory. Perhaps Governments should be required to consider the contents of a sheriff's report, and then it would be up to them whether they acted accordingly.

I turn to Margaret Smith's amendment and the subject of deaths overseas. It is fair to say that there was some discussion of the issue this morning because of a genuine wish to achieve a compromise. I freely acknowledge the work that Margaret Smith has done on the matter over quite some time. We are all concerned about relatives of deceased servicemen having to go down to the south of England to attend an inquest into the death of their loved one, with all the hassle, expense and unnecessary trouble that that might entail, so it is an issue that we require to examine.

I must flag up the fact that, as Margaret Smith acknowledged, her proposal might involve legal difficulties. To some extent, it contradicts the Scotland Act 1998, although I am sure that once Lord Cullen has produced his report, the law officers, in conjunction with Lord Cullen, will be able to find a way round that. At the moment, there might well be an impediment to the adoption of Margaret Smith's suggestion, but we might be able to circumvent it further down the road. That would be no bad thing.

We must also recognise the circumstances in which fatal accident inquiries are utilised in Scotland. Given his previous experience, the Cabinet Secretary for Justice is probably better able than most to advise us that, in many cases, such inquiries do not last long because the evidence is self-evident. Often, we are talking about a tragic incident at work, or the death of a person in custody or under medical care. In the public interest, it is necessary to hold FAIs in such cases, but it is most unusual for them to come up with anything sinister or anything from which significant lessons can be learned.

However, other inquiries are much more complex. The Lord Advocate recognised the difficulties with the present system when an inquiry into the Stockline explosion in the Maryhill area of Glasgow was set up. Although it would have been possible to hold a fatal accident inquiry into that incident, the requirements under the existing legislation would not have been met and entirely appropriate special arrangements had to be made. That issue might need to be examined and I am sure that it will be in the course of Lord Cullen's inquiry.

The principal issue relates to inquiries into the deaths of servicemen. The location of the coroners' inquests means that a time delay is inevitable. My briefing says that 122 inquests are outstanding. Although not many of those will relate to the deaths of Scottish servicemen, there will be some Scottish cases in the queue. I am sure that most of us would agree that it is quite unreasonable that the relatives of deceased servicemen should have to wait so long for closure. As Margaret Smith properly said, we owe a great debt to the people who lose their lives in the service of their country and to their relatives.

I will be happy for the motion, duly amended by Margaret Smith's amendment, to go through. We will all await the results of Lord Cullen's review with considerable interest. I certainly endorse the view that the review could not be in safer hands. Once it has been completed, I look forward to the matter coming back to the Parliament and the Justice Committee, so that we can determine in which direction we need to go. The fatal accident inquiry system in Scotland has worked well, but that is no reason not to re-examine it, with a view to improving it.

Photo of Keith Brown Keith Brown Scottish National Party 3:34 pm, 27th March 2008

The motion welcomes an independent review by a figure of the highest reputation and legal standing to resolve a set of problems that I hope we all agree exists. I will concentrate solely on the holding of FAIs into the overseas deaths of military service personnel, which I raised with the Cabinet Secretary for Justice a few weeks after my election to the Parliament last May.

A number of members have mentioned the difficulties that are encountered by the families of service personnel who were based in Scotland and were killed overseas, but it is worth repeating that we in the Parliament are united in our support of, and our profound sympathy for, soldiers and their families, regardless of the differences that we may have about decisions that their political leaders have taken in sending them into the path of danger. Jeremy Purvis recently arranged a meeting involving veterans and representatives of service organisations, which members from all parties attended. We hope that that meeting will result in the establishment of a cross-party group on veterans' affairs, which may consider the issue that we are debating. The feeling at the meeting seemed to be that that should happen.

As we all know, the difficulties that the system poses for families of service personnel were brought into sharp focus by the deaths in September 2006 of 14 Royal Air Force personnel from Kinloss, but the system has been a problem ever since the current legislation was introduced.

We are discussing fatal accident inquiries because of the unfairness of a system that means that accidental deaths abroad of Scotland-domiciled service personnel trigger a whole set of legal proceedings that must take place in the south-east of England. Families that are already devastated by the loss of a loved one must travel hundreds of miles to a part of the world that is often unfamiliar to them if they want to attend an inquest. There is also the rather intimidating process of the inquest itself. Those families should be assured that their loss is being properly investigated and that answers are being found. How can they begin the difficult task of moving on from what has happened, with due sympathy for and consideration of their feelings, if they must travel down to Oxfordshire or Wiltshire to undergo such an ordeal?

Delays have been mentioned. Sometimes it can take up to five years to hold an inquest. The old saying that justice delayed is justice denied is relevant. Many families see inquests as part of the justice process—the state is taking account of what has happened and investigating it—and, as the Solicitor General said, legal proceedings can result in some circumstances.

Criticism has been made of the accessibility of justice. There is an old saw about law courts, like the Ritz, being open to all. An FAI is open to everybody, but a person from Scotland must travel down to the south-east of England and wait for four or five years for it to happen.

I will say something about my own experience when I served with the marines. In 1982, a number of Special Air Service and Special Boat Service soldiers died when the helicopter in which they were travelling to South Georgia ditched in the sea. In my troop, the mortar group of 45 Commando, there were a number of accidental deaths—such deaths are now referred to as deaths by friendly fire. Many of the people who were involved were from other parts of the United Kingdom, but were firmly domiciled at the marine base in Arbroath. What is true for Scottish soldiers is also true for those who have been moved to bases in Scotland, whose entire family live on the base and who have, to all intents and purposes, made their home in Scotland. The same considerations must apply in such circumstances.

I do not know why such inquiries have not been addressed until now. It seems fairly obvious to me that they should have been. I am not trying to belittle the legal problems that lie in the way—the issues seem to be much more of a minefield than I understood them to be before I became involved.

However, as far as I am aware, they have not been raised before now.

I would hate to think that an element of nit-picking is creeping into the tone of some of the correspondence on the subject. For example, I understand that, since last year, Whitehall officials have changed their position on the mandatory element, which Pauline McNeill mentioned and which has now been clearly enunciated by the Secretary of State for Defence. I hope that better-informed people can shed light on why that is such an issue now.

The public, service personnel and their families will understand perfectly well that we are talking about a complex area that involves two different legal systems in two different countries with different jurisdictions, but they will not understand why we cannot now make progress when both Governments appear to want the same end.

I hope that, given the tenor of today's debate, there will be unanimity in the Parliament and that, as a result, the Scottish Government will be encouraged to act with haste to try to convince the Westminster Government to act, and that people in different parties in the Parliament will do their part by talking to their counterparts at Westminster to ensure that we can act as soon as possible.

Someone who has lost their loved one overseas in a military context will be already distressed without having to wait up to five years to get answers to questions to which answers can often be difficult to find—perhaps of necessity, given that they must be found in a service context, in which secrecy is often important.

Consideration should also be given to the fact that the families may be living cheek by jowl with other service families. Often, the circumstances of such deaths can give rise to all sorts of rumour, division and suspicion. That is exactly the kind of atmosphere that one does not want on a military base.

I am hopeful that our unanimity today will lead to early progress on the issue. I look forward to hearing what other members have to say.

Photo of Michael McMahon Michael McMahon Labour 3:40 pm, 27th March 2008

When I had the privilege of being convener of the Public Petitions Committee, two of the most harrowing petitions that I encountered, from Enable and from the family of a fatal accident victim, sought amendments to the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976. As others have noted, Enable's petition arose from its concern that an FAI is not mandatory when people die in hospital care and that the outcomes of FAIs are not legally binding. The other petition arose from the family's desire for fatal accident inquiries to be mandatory in the case of road deaths caused by careless driving.

At the moment, a fatal accident inquiry following a road crash is held only at the discretion of the Lord Advocate and is mandatory only if the driver has died while driving in the course of his or her employment. The driver who caused the accident on the A725 Bellshill bypass in my constituency had travelled from Preston to the accident site in two hours and five minutes. For someone complying with the speed limits, a journey over that distance should take more than three hours and 10 minutes.

The outcome of the subsequent court case led the victim's family to question why it is possible for someone to be tried and convicted for driving with such speed and carelessness that their actions led to the ending of a life yet for that death not even to be acknowledged by the judicial system. How can lessons be learned from road accidents if no inquiry follows them? The family had to come to the Public Petitions Committee to put pressure on the Crown Office into granting an FAI to answer the family's questions because the current system had so obviously failed them.

As Margaret Smith pointed out, Enable lodged its petition primarily to address concerns about the implementation of the recommendations of fatal accident inquiries. It seems an almost incredible set of circumstances that an outcome of an FAI should have no legal force and that the sheriff's determinations and recommendations can be ignored. When such recommendations are made, should there not be some means by which they are monitored to ensure that they are acted on? Should they not be dealt with in an arena in which individuals or charities such as Enable are not required to pursue the implementation of the sheriff's recommendations? Those are fundamental questions, which I hope and am confident that Lord Cullen will address.

I believe that FAIs should be inquisitorial rather than adversarial. They should get at the answers rather than provoke conflict between those asking the questions and those responding, who may be defensive because of the type of questions that are asked. I think that the current arrangements lead to defensive responses. That does not help us to get to the truth of the matter, nor does it help to prevent the situation from happening again.

We certainly need a wide review of the purpose of fatal accident inquiries and the circumstances in which they are held, but there should also be a recognition that families and victims should be at the centre of such inquiries. There will be great merit in Lord Cullen's review if he can consider those issues. It would be worth considering having a presumption in favour of holding a fatal accident inquiry for all road deaths because of the lessons that can be learned. If the Crown Office is concerned that families may not want an FAI, let the matter be judged on the basis of whether the family has asked for there not to be an FAI. The current presumption against holding an FAI forces families to come to the Public Petitions Committee to get the answers that they rightly seek and to which they are entitled. Would it not be preferable to assume that an FAI should be held unless the family would rather that the issues surrounding the loss of their loved one were not brought into the public domain?

When the committee took up the issues, the previous Lord Advocate stated that families' views are sought on whether there should be a fatal accident inquiry. However, I wonder how proactively that is done and, indeed, why such action is taken at all, given that families' views are not the decisive factor in determining whether an inquiry should take place.

The fundamental question that arose when we considered the petitions was who decides what is in the public interest. Should the Crown Office make that determination, or should those who are affected by the death of a loved one have more input and emphasis than those who seek to judge from their, dare I say it, detached position on the events that led to someone's death? If Lord Cullen's review provides an answer only to that fundamental question, it will have been a worthwhile exercise. From my experience of the demand for and the process of FAIs, and from the information that the committee received, the process has left far too many members of the public dissatisfied with a system that was created for the public and which is supposed to operate in the public interest.

We must put the public at the heart of the system. I am sure that no one in the Crown Office wants to be seen not to do that, but the experience of the committee when we considered the issue was that what happens seems to be the converse of what the system is supposed to achieve. Lord Cullen's review must address that. I am confident that, if he addresses that fundamental question, he will get to the root of the dissatisfaction that people feel with the system.

Photo of Christine Grahame Christine Grahame Scottish National Party 3:46 pm, 27th March 2008

I welcome this extremely interesting debate. The Solicitor General and the Cabinet Secretary for Justice are aware that, along with Margaret Smith and, as it turns out, many other members, I considered venturing into this area of law with a proposal for a member's bill. As many members have said, the system is ripe for review after all these years, because time has moved on.

Fatal accident inquiries are a little-known area of the law to members of the public until they become involved or try to become involved in one. I will refer to two cases with which the Solicitor General is familiar and which raise issues about the need for review. The first case is that of the death of Stuart Foster. The case raised my awareness of and, consequently, my concerns about the process, the representation for third parties—who are usually the deceased's family—and the delays in decisions on whether an FAI should be held. I can talk about the case in public because there has now been a fatal accident inquiry and because Stuart Foster's parents went public when they were not granted one.

Stuart Foster died on 11 June 2004, aged 28. He had been employed in a bar and, that day, after his work, he continued to drink and drank himself to death. The death certificate said that he died choking on his own vomit and from alcohol poisoning. Because, technically, he was no longer working, a fatal accident inquiry was not mandatory. I took up the case in 2005. I have the pester power of a three-year-old at the sweeties near the cash till, but it was only after a lot of pestering—I personally talked to the Lord Advocate to ask why the case had not moved on—that we got a fatal accident inquiry. That took three years although, from what I have heard today, that was pretty quick compared to the five years that it has taken for some other FAIs to be held.

Issues arose about serving alcohol to someone who was clearly intoxicated. There was a failure to deal with Stuart Foster when he slumped to the floor. Without malice, his colleagues took pictures of him lying there. They must have thought that they were in a wild west movie, because they threw water on him, but the man was unconscious with drink. He was put in the back of a car, from which his girlfriend could not lift him, and he died at some time in the back of that car.

As has been said, the FAI process is a hard journey for parents. However, despite the anguish of sitting through the proceedings, they want to know what happened. I thank the procurator fiscal, who went out on a limb to assist Stuart Foster's parents. She involved them in the processes and told them what was happening, such as that the hearing had been adjourned because they had not been able to get hold of a prime witness. She was with them at the hearing, at which Mr Foster represented himself. I also thank the sheriff, who dealt with them tactfully and sensitively.

Important issues arise, not least of which is the time delay and the deterioration of evidence, particularly eye-witness evidence, which I do not think anyone has mentioned yet. Given that I cannot remember what I did a month ago—that is nothing to do with increasing senility—I would not be able to remember what happened three years previously in a case in which I had not played a major part but in which I knew something that was crucial evidence, especially if I had been distracted by doing something else.

I turn to the protection of evidence. Closed-circuit television coverage was significant in the case that I mentioned. The police had decided not to prosecute, so we wondered what was going to happen to the CCTV evidence that showed what had happened. It took some time to locate it.

That case told me that many aspects of FAI procedures needed to be reformed. I am glad to hear that access to legal aid is being considered. We understand that financial eligibility tests for access to legal aid pertain in various procedures. We accept the probable cause issue. Reasonableness is the difficult issue. Is it reasonable that, if people pass the tests, the state should give them legal aid?

The second case, which raises different issues of public safety, is the tragic death of Pascal Norris in 2006 from anthrax. Wild speculation followed his death in the Borders. It was put down anecdotally to badgers carrying anthrax; the poisoned stream that ran near his isolated cottage; and his drum making. It brought a whole cloud of fear, panic and suspicion to all the people in the neighbourhood.

I pursued an FAI in that case in the early days to expose the flaws in the processes, because things went wrong. The isolation of premises applied to his house at Black lodge, which was very remote. I went there when it was isolated; it looked like something out of the space age with people in decontamination suits, fencing, police, barricades and goodness knows what. However, his house was not the source of the infection. Pascal Norris had contracted the disease at Smailholm village hall but, to the best of my knowledge, that was not identified as the source for six weeks.

Issues arose about the power of the state to isolate premises. I understand that, under the then public health law, only one premises could be isolated compulsorily. Smailholm village hall was isolated voluntarily. The new Public Health etc (Scotland) Bill, which the Health and Sport Committee has been considering, will deal with that matter.

Mr Norris had gone to drumming lessons and had been playing on drums made from wild goat skins from Africa, which were carrying anthrax spores. Mr Norris had leukaemia, so he was vulnerable. To the best of our knowledge, that is how he died.

The case raises huge issues, such as the importing of products from Africa that may carry anthrax spores. There are also issues to do with processes. Who was responsible? Did the buck stop with Scottish Borders Council, NHS Borders or the police? The Public Health etc (Scotland) Bill might remedy some of what happened in the case. My colleague Helen Eadie will know that from some of the evidence that the committee has taken.

I welcome the review of FAIs. I welcome the consideration of whether to have an expert assessor to try to accelerate the FAI process or the decision whether to have an FAI in the first place. I do not take Michael McMahon's position that every case in which a road accident fatality is caused by careless driving should involve an FAI. Sometimes, what happened speaks for itself. I dealt with a case where a young man was killed in a road traffic accident and it was obvious that he had run out in front of a car that was not going over the speed limit.

I welcome legal representation for the bereaved and the expansion of legal aid.

I wish to pick up on what Pauline McNeill said about the possibility of appealing against refusals to grant FAIs. It might be difficult to do that, given what the Scotland Act 1998 says, but the idea is worthy of investigation. However, I do not think that that would come under our remit.

Photo of Helen Eadie Helen Eadie Labour 3:55 pm, 27th March 2008

Thank you for giving me the opportunity to contribute to this afternoon's debate. Like Pauline McNeill and Michael McMahon, I will support the amendment in the name of Margaret Smith. I congratulate her on the work that she is doing in this important area.

We all feel for bereaved families and care about the distress that is caused to them, no matter the circumstances of the death. We care especially for the bereaved families of servicemen and servicewomen who have to travel to England to attend coroners' inquests. As Pauline McNeill said, Labour will work with the United Kingdom Government in striving to achieve viable alternative arrangements to minimise travel distances at times when families can cope least. I welcome the sensitive and supportive letter from Des Browne, the Secretary of State for Defence, supporting the proposed changes and working with us to achieve the end that everyone in the chamber appears to want.

We will seek to identify how better interaction can be achieved with other forms of investigation, including public inquiries and investigations carried out by bodies such as the Health and Safety Executive. Labour has always been concerned about the number of accidents in the workplace in Scotland, despite the fact that the UK's health and safety framework is one of the strictest in the world. We need only remember what happened in Patricia Ferguson's constituency.

Labour is committed to investigating further the reasons behind Scotland's accident statistics, and we will challenge any complacency in the workplace. In our manifesto, we made a commitment to secure a more co-operative approach, and we supported the development of the roles of trade union safety representatives in the workplace. I am sure that we shall continue to honour that commitment. Hopefully, we will have the opportunity to ensure that some of that transpires into reality.

We welcome the fact that the law on fatal accident inquiries is to be reviewed for the first time in 30 years. The fact that the review, which will examine ways of making these rarely held inquiries fit for purpose, is to be undertaken by one of the country's most respected legal minds, Lord Cullen, is welcome. The retired Lord Justice General, who is known for, among other things, leading investigations into the Dunblane shooting and the Piper Alpha disaster, is expected to take about a year to conduct it. I hope that the legislation will not take much longer to come into being following the review, as the matter needs to be addressed with some urgency.

I welcome the service improvements that the Solicitor General has outlined and has had completed in the Crown Office.

I note that the review that Lord Cullen will undertake will cover a variety of measures. Of particular concern is the question whether there should be inquiries into all Scots deaths abroad in cases where the body is returned to Scotland and into the deaths of all Scots military personnel, which we support through the amendment. From what I read about the review, I assumed that it would include any death abroad. I would be grateful for any clarification on that this afternoon.

Information on the findings of inquiries over the past eight years is to be found on the Scottish Government website. It makes salutary reading for all of us, and illustrates the range and breadth of issues that sheriffs have had to deal with over the past eight years and more. It is intriguing to see the sheer breadth of issues that they encounter.

As Pauline McNeill and other members have said, resources for the review have not been mentioned, but I presume that they will be given urgent priority. Resources must always match policy. If they do not, the review simply will not happen.

The public perception is that the system neither supports bereaved families nor benefits the public good. Many people feel that the findings of fatal accident inquiries are often not properly enforced, because of a lack of central monitoring, among other things.

The current system means that inquiries can go on for many years, which is distressing for families. I hope that the review will lead to a system that will allow bereaved families to feel that lessons genuinely get learned and are acted on in a transparent way. At present, all sudden, accidental, unexpected or unexplained deaths are investigated by procurators fiscal, but only a small number—about 60 a year—are scrutinised in detail by a sheriff in a fatal accident inquiry.

We know that campaigners across Scotland have been arguing for some time for changes. Enable, a charity that supports disabled people in the community and which is well known to all MSPs, has long argued that fatal accident inquiries can take too long to organise and that many of the recommendations that they generate are not binding. Norman Dunning of Enable raised concerns over fatal accident inquiries after Enable discovered that recommendations on the care of disabled people in hospital, which were made after the death of one of Enable's clients, were not followed.

As Christine Grahame and Michael McMahon have said, those who have served on the Public Petitions Committee have heard some harrowing cases, which have left a lasting impression on us. Now, many years later, we see that we are able to make a difference, and I hope that the review will make the change that the campaigners have been campaigning for.

We are here to make a difference and we hope that we will make that difference. Hearing some of the cases that have come before the Public Petitions Committee has been an important part of my education in the Scottish Parliament. I think that the case that Michael McMahon spoke about earlier was one of the most distressing cases that we heard about.

A look at the Parliament's website shows that, over the years, many MSPs from all political parties have asked parliamentary questions based on their concerns about fatal accident inquiries.

We must remember that any fatal accident inquiry has a profound impact on those who are involved in it, whether that person is an officer, a law servant, an MSP or a member of the public. For example, as a trade union official, my husband was involved in the inquiry into the Piper Alpha disaster and he cannot now speak of that disaster without a tear coming to his eye, because he is filled with the pain of other people.

The piece of work that will be done is vital. I hope that the review will be thorough and will be completed in a reasonable timescale. I know that we all care about any untimely deaths, and, above all, those of serving military personnel.

Photo of Michael Matheson Michael Matheson Scottish National Party 4:02 pm, 27th March 2008

I welcome the review and the fact that Lord Cullen has been appointed to undertake it. As many have said, he is an individual with great experience in this field and I wish him well in this undertaking.

Although a review of the 1976 act has been due for some time, when one thinks of the time that it can take to review and reform certain elements of our justice system—when I was on the Justice 1 Committee, we sometimes amended and reformed legislation that was several hundred years old—one can see that the 1976 act is a fairly young piece of legislation. However, I welcome the fact that the growing concern about a number of its provisions that now require to be reformed has been recognised.

The existing statutory grounds for FAIs—death in custody or death in the course of employment—should remain in place, regardless of any other changes or reforms that might take place. There is a possibility that further statutory grounds for an FAI will be created.

I share Keith Brown's concerns about military personnel and I am somewhat surprised that that issue was not addressed earlier. It might be that, as part of the reform of the 1976 act, we should frame any changes so that future changes can be accommodated more rapidly than is the case at the moment; it appears to be a lengthy process. In particular, I hope that an accommodation can be found between the Scottish Government and the Westminster Government in the interests of addressing the concerns of the families of military personnel who have been tragically lost in overseas action.

Families need clarity on the provision of FAIs and who they should turn to when they believe that they have grounds for requesting one. Sadly, in several constituents' cases, I have found some confusion about that. For those of us who have some knowledge of FAIs, it is clear that the matter lies with the Crown Office, but families may be unclear after a trial about what further action they can take to raise concerns and often have little knowledge of how they can pursue a fatal accident inquiry. I hope that Lord Cullen will consider whether to ensure that the Crown proactively informs families when a fatal accident inquiry may be an option, pending its consideration of the case. That would give families greater knowledge and understanding of when they may have the option of pressing for such an inquiry. In my experience, families turn to their elected representatives to lobby on their behalf for a fatal accident inquiry. That does not indicate a system that is working well.

Other members have suggested changes and I throw on the table an option for reform that is similar to the way in which we deal with issues of parental rights and responsibilities. In such cases, an interested party can petition the sheriff to have a matter considered. Perhaps, when an interested party thinks that they have a legitimate reason for requesting a fatal accident inquiry, they could petition the sheriff. The sheriff could consider their views and those of any other interested parties and whether there are grounds for such an inquiry. Although the Crown might not be so keen on that idea, because there is potential for a sheriff to bind the Crown to undertake an inquiry, it would give families greater clarity, as well as the option of making their case before the sheriff.

I have also experienced concern in my constituency about cases that fall outwith the statutory grounds for an FAI, when the Crown can consider whether it is in the public interest for an FAI to be conducted. I have no doubt that Crown Office staff consider such matters seriously, but the public find it extremely difficult to understand what the Crown takes into account when it balances the public interest in such issues. One of the first cases that I dealt with as an MSP, more than eight years ago, was the tragic death of a young constituent, Kathleen Fitzpatrick, who was killed on Falkirk Road in Bonnybridge after leaving the school bus. She passed round the front of the bus and was, sadly, struck and killed by a heavy goods truck. There were issues, such as whether the local procurator fiscal would undertake a criminal prosecution, which in the end did not happen. The family was left with questions about how such a tragic event could have happened to a child coming home on a school bus that they thought she would be safe using. At no point did the Crown offer the possibility of a fatal accident inquiry. It was only through my representations and those of other elected members that eventually, after about a year and a half, the Crown was persuaded that there was public interest in examining the case of a child who, having come home from school on a local authority school bus, had been knocked down and killed just across from her house. There are lessons that could be learned from that.

Photo of Mike Pringle Mike Pringle Liberal Democrat

Will Michael Matheson comment on whether we should consider adopting in legislation the system in America, where it is illegal to overtake a school bus at any time?

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

That is a bit far away from the subject of fatal accident inquires.

Photo of Michael Matheson Michael Matheson Scottish National Party

It is, but it is an issue that a fatal accident inquiry could consider, and it may be one of its recommendations That brings me neatly to the issue of an inquiry's recommendations and the force that they have. The next stage for a family is what happens after the sheriff has conducted an inquiry and made recommendations. I welcome the fact that the standing of the recommendations will be considered.

The provision of FAIs should be extended to allow a fatal accident inquiry when the body of a Scot who has died abroad is returned to Scotland. Such an FAI should not happen automatically, but only if circumstances justify one. For example, if someone dies of a heart attack while they are on holiday in France, I do not think that an FAI is required but, if there are suspicious circumstances, one may be justified. Therefore, I hope that Lord Cullen will recommend that FAI provision should be extended, with the caveat that it should be considered whether an FAI is appropriate when a body is returned to Scotland.

Photo of Karen Gillon Karen Gillon Labour 4:10 pm, 27th March 2008

I welcome the opportunity to participate in the debate. It is an important one on an issue that affects families and communities the length and breadth of Scotland. There are many occasions when someone dies in unexplained circumstances and the victim's family wants to understand why their loved one died, learn the lessons from that death and ensure that effective steps are taken to reduce the risk of another person dying in similar circumstances.

In my time as an MSP, I have been involved with families who have lost loved ones in various tragic circumstances. In most of those cases, the families wanted prosecutions to be brought or, at least, fatal accident inquiries to be held. The first case is the Transco case, which is particularly well known, especially to the solicitor general, who prosecuted it successfully, for which I am thankful. The need for a fatal accident inquiry in that case was overtaken by the trial. Over six months, the facts and circumstances of that tragedy were able to be put into the public domain and lessons were, I hope, learned, although that remains to be seen.

The second case is that of William Campbell, a young man who died in a road accident. In that case, the accused pled guilty and the opportunity for the trial to explore the facts was not as full as it could have been. There has been no fatal accident inquiry and the parents still wonder whether the lessons of their son's death have been learned.

I welcome the review, because there are things that need to be improved and changes that need to be made. In any circumstance, we must learn the lessons of the past and make improvements for the future. A number of key principles should underpin the review. We must place the victim and their family at the heart of the process. Whatever system is developed should not be constrained in its efficacy by a lack of finance. The decision to hold a fatal accident inquiry—or whatever we call it—should not be limited because of insufficient funds, insufficient sheriffs or whatever other constraint could be placed on it. The vested interests of any section of the legal establishment should not be allowed to influence the new system's structure unduly. The timescales that are involved must be reduced so that families' grief and hurt are not unnecessarily extended because of failings in our system to bring about justice for them.

The recommendations that an inquiry makes should not be optional but must be implemented. What is the point of an inquiry making recommendations if their implementation is at the whim of some agency or another? There must also be much greater clarity about the criteria that are used to determine whether an FAI will be held and guarantees that we will not create a two or three-tier system if we have different levels of inquiry.

In my experience, one of the most unsatisfactory areas of the system relates to road deaths. We all understand our own failures, weaknesses and vulnerability on the roads and have all had too close an experience—we all know that there but for the grace of God we go and that it could have been us who caused an accident—so perhaps we err on the side of caution when it comes to prosecutions for, and FAIs into, road deaths. It seems that at the moment one can pick up the paper or switch on the news on an almost weekly basis and there is another life lost. Our cars are getting faster and drivers are getting more daring, and more innocent people are caught up and killed in the turmoil. In far too many cases, prosecution is limited and an FAI is not held, so no lessons can be learned.

I am increasingly convinced that when someone dies on the roads, it should be presumed that a fatal accident inquiry will take place unless it can be clearly and unequivocally demonstrated that it would not be in the public interest to do so. Regarding the case that Michael McMahon outlined, I understand that if the woman who caused the accident had died, a fatal accident inquiry would have been mandatory because she was driving in the course of her work. However, because the victim was an innocent person who was driving home on a journey that she made every night, it was deemed that no fatal accident inquiry should be held.

Too many people are driving too quickly on our roads—too many people are driving on our roads. Too many of our roads have too many holes and too many people are dying. It is only by investigating all these cases in public that we can learn the lessons and take the steps that are needed to ensure that changes are made to roads investment, drivers' attitudes, young people's safety, or—through negotiation with our Westminster colleagues—the law on road safety. As a parent of two boys who travel daily on a school bus, I want to ensure that those children are as safe as possible and that the lessons that are learned from the case that Michael Matheson outlined are taken forward.

I am more than happy to support Margaret Smith's amendment—it is right that change happens. The letter from Des Browne that members all received this morning sets out the position of the UK Government, which has put forward a constructive solution: changing Scots law to allow mandatory inquiries to be held for service personnel who are killed abroad. Perhaps I am just a bit cynical, but I am sure that this time last year, the tricky issue of the Scotland Act 1998 would have been no barrier to the then Scottish National Party justice spokesperson—now our Cabinet Secretary for Justice—calling for legislation to be introduced as a matter of urgency. I am aware, perhaps more than most members, of the constitutional wrangling that surrounds the pursuit of justice where reserved and devolved issues are involved, whether they relate to corporate culpable homicide or, in this case, service personnel who are killed while they are on operational duties overseas.

My position on the issue is as it was on corporate culpable homicide: it is a simple matter of justice that is devolved to this Parliament on which we have a duty to act, and I hope that it can be resolved quickly. I would be grateful if the cabinet secretary could indicate whether he intends to amend Scots law in the manner that is outlined in Des Browne's letter and, if not, his reasons for not taking that forward and the other avenues that he will be able to pursue.

Lord Cullen is, without doubt, a prolific legal person. I am sure that his review will get to the heart of many of these issues, but while he is doing that, people will die in circumstances that are unexplained and tragic. Whatever comes of his review, it must ensure that the families who lose loved ones are satisfied that the process is fair and just. Although such a process cannot bring their loved ones back, they understand that lessons will be learned from their tragedy and that other people might be saved from dying in similar circumstances as a result. I commend the Government for bringing forward the review and we, as Labour members, look forward to working with it to ensure that the system that comes into place is as effective as possible.

Photo of Nigel Don Nigel Don Scottish National Party 4:19 pm, 27th March 2008

I will address my remarks—as usual, very late in the debate—to one particular issue that is expected to be considered during the review: the status of recommendations made by a sheriff. I looked at the Government website and was interested to find statistics for 2005 that suggest that there were only 40 fatal accident inquiries in that year—I do not know whether they were all reported on that site—of which only five had recommendations that were reported on the site. If those statistics reflect reality—or, indeed, even if they are indicative—the number of specific recommendations that are made is not huge and, therefore, they could be dealt with through a system without huge expense or great difficulty. We should consider what that system might be.

I am sure that fatal accident inquiries are like every other inquiry that we make in life. We discover that there is a specific issue that relates to the particular event that we are investigating. As sensible human beings, we decide quickly that the event was one of a set of other, wider events and we consider whether a general conclusion can be drawn. It should not be beyond the wit of Government to make it somebody's responsibility to look though the cases—of which there is not a huge number—and decide where there are specific recommendations. They might be recommendations to an industry or even recommendations to a specific business, in the case of a death at work. They might be recommendations to a local roads authority to do something simple such as changing its signage.

It might also be possible for the person to draw a general conclusion, which might be sent to the appropriate industry bodies and circulated to every local authority for consideration by—for example—its roads department. Given the relatively small number of inquiries and recommendations, it should not be terribly difficult to do that. My suggestion does not address the status of recommendations but it is a simple method of dealing with them in such a way that there is a pretty good chance that they will reach the right people.

As the Solicitor General said, Lord Cullen led the Piper Alpha inquiry, which was held as far back as 1988. I was surprised to discover how long ago it was. The Piper Alpha disaster was a dreadful event in the chemical industry. I guess that I have to declare an interest as I represent the area. One hundred and sixty-seven people died. There were numerous recommendations, one of which was that responsibility for safety should be moved from the Department of Energy, which was clearly underresourced, to the Health and Safety Executive. I have no doubt that that kind of recommendation is entirely appropriate.

I pay tribute to the industry body Oil and Gas UK, which recently arranged presentations to about 180 young technicians to repeat the lessons that were learned from the Piper Alpha disaster. The body understands the important point that corporate memory fades fast. I remember, in the days when I was a chemical engineer, reading an article by Professor Trevor Kletz, who worked for ICI, as it was in those days, and wrote for our institution's magazine. He pointed out that corporate memory turns over in about 10 years. By and large, the people who are there when something goes bang have moved on 10 years later.

We need to find ways to enshrine the lessons that have been learned from things such as Piper Alpha in such a way that they transcend the failures of corporate memory. I do not have a particular suggestion as to how that might be done, and I acknowledge that it is not easy, but it is one of the big issues. To avoid the major problems that occur in certain areas of industry, we need to ensure that things get into the collective memory, education and conscience. That is important, because otherwise things such as Piper Alpha will be repeated in each generation.

Photo of Mike Pringle Mike Pringle Liberal Democrat 4:24 pm, 27th March 2008

Scotland is widely perceived to be a reasonably safe place to live and it is relied on as such. Whatever activity someone takes part in, be it white-water rafting, bungee jumping or simply a day at work, it has been fully risk assessed for any reasonable eventuality. If an accident occurs, we have committed emergency and health care professionals at hand to deal with problems. That comprehensive approach to safety means that when something goes tragically wrong it is often all the more inexplicable, so it is right to have in place a rigorous, reliable and efficient system to assess why the multitude of fallbacks and regulations failed.

Whether the current system meets the standard I have described is at best questionable. Michael McMahon gave us a good example of when families want an FAI and feel that they have been let down because no judicial inquiry has been undertaken. As several members have said, the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act was passed in 1976. Everybody agrees that, 30 years later, it looks old, tired and inefficient. I think that Michael Matheson made the good point that any future legislation should be flexible.

Angus Robertson MP perhaps summed up the situation best when, on the seventh of this month, he described the system as "beleaguered and backlogged". That statement formed part of his second claim of SNP action on the issue, further to his remarks of June last year, when he said that the new SNP Government had acted to ensure that the Scottish legal system played its part in investigating overseas military deaths.

I am pleased that Frank Mulholland has said that Lord Cullen's new review will report in a year and I agree entirely with Margaret Smith that the issue is extremely complex and that time needs to be taken to get it right, but will the cabinet secretary give us an idea of how soon after the inquiry concludes the Government will take action?

Several pertinent questions need to be asked before we move forward. For example, should the number of mandatory inquiries be greater? Could the system cope with more? Do we supply sufficient information to victims' families? Bill Aitken was right to say that families need more assistance with how to ask for an FAI—with what the system is, where to go and who to ask. Many families seem unaware that if they do not call for an FAI from the outset, they will not have a second chance to do so. For those reasons, I fully support the upcoming review.

I agree with the comments of Frank Mulholland, Margaret Smith and others about Lord Cullen. I am delighted that one of my constituents—a man who is well known in the legal profession, who has significant experience in public inquiries and who is a former Lord Justice General—has agreed to take on the review. I suggest that, for him, retirement has not lasted long. However, it is also important to examine what can be done now to speed up the process, particularly for inquiries into the deaths of service personnel.

Margaret Smith and others have comprehensively covered fatal accident inquiries in the military, so I will not go into the detail, but I offer my support to all those who spoke. Keith Brown made a telling speech that used his personal experience and he brought a personal perspective to the issue.

I regret to introduce slight discord into the debate, but I must ask whether the Scottish Labour Party supports the remarks of Des Browne, the UK Government's Secretary of State for Defence, who has called for strongly worded criticism of the Ministry of Defence to be outlawed from inquests into soldiers' deaths. Surely if an inquiry system is to function in any practical sense, it cannot be censored by any Government, any Government official or any Government minister.

The fact that a senior UK Cabinet minister would suggest anything to the contrary is deeply troubling.

I strongly welcome the inquiry into FAIs and I am delighted that Lord Cullen will lead it. I will support Margaret Smith's amendment at decision time and I suspect that most members will do likewise.

Photo of John Lamont John Lamont Conservative 4:29 pm, 27th March 2008

The debate and the review of the law on fatal accident inquiries are welcome. As others have said, Lord Cullen's wealth of experience makes him ideally equipped to conduct the review.

The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act dates back to the year in which I was born—1976. It is appropriate that it should be reviewed now, so that it continues to be fit for purpose in the light of changes to other parts of the justice system. It is also important to note that, despite the fact that about 50 to 70 fatal accident inquiries are held each year, there is still a backlog of cases to be processed. Let us briefly consider the importance of such inquiries.

Fatal accident inquiries are important because they consider the circumstances of deaths that have caused serious public concern. They are held in the public interest. The main function of an FAI is to address public concern and, if appropriate, make recommendations that might prevent such accidents from occurring in the future. However, there are a number of weaknesses in the current system that Christine Grahame, Karen Gillon and others have highlighted.

The first weakness is the status of the recommendations that the sheriff makes at the end of the inquiry. As we have heard, the purpose of a fatal accident inquiry is to establish the time, place and cause of a death when there is public concern about the circumstances of the death. Such inquiries do not attribute blame or guilt in a criminal or a civil sense. The procurator fiscal leads evidence at the inquiry, which is held in the sheriff court. At the conclusion of the inquiry, the sheriff issues a determination that contains findings about the circumstances of the death. The sheriff may make recommendations as to how such deaths may be avoided in the future. Sheriffs make recommendations in about one third of all fatal accident inquiries.

As Margaret Smith, Bill Aitken and others said, a sheriff's recommendations are not legally binding—on the basis, as I understand it, that the circumstances of a particular death may be unique and it may not be appropriate to spread the conclusions across the board. It will be interesting to see what the Cullen review decides on that point, as I know that many people would like inquiry recommendations to be given a stronger standing in law. I was particularly interested to hear Nigel Don's views on the matter.

The second weakness is the backlog. Making the current system more efficient would, I hope, reduce the backlog. One possibility would be to require inquiries to be completed within a specific time. There can be no doubt that delays are especially difficult for the families of victims. There is also an argument for enabling families to get legal support and representation if it is needed. At the very least, that would give families a better understanding of the process. That point was well made by Pauline McNeill and Michael Matheson. However, I am not sure whether it would make the system any more efficient. Indeed, the process might not be any quicker and I suspect that it would be considerably more expensive.

Photo of Christine Grahame Christine Grahame Scottish National Party

Does the member share my concern about the deterioration of evidence when there are delays?

Photo of John Lamont John Lamont Conservative

Indeed. If things are not dealt with in a timely manner, there is a danger that evidence becomes less good and less reliable. I agree with Christine Grahame's comments on that.

The third weakness, which has attracted considerable comment, relates to Scottish persons who have died overseas, especially soldiers who have died on active service. Margaret Smith and Keith Brown articulated that point well. The current provisions do not allow fatal accident inquiries to be held into the deaths of Scottish soldiers who are killed abroad, even if their bodies are returned directly to Scotland. Scottish soldiers who are killed in action are currently flown back to an airbase in England, which gives rise to a coroner's inquest under the different jurisdictional rules that apply there. Scottish fatalities come within the scope of the coroner's inquest as soon as the bodies arrive on English soil—they are normally repatriated at RAF Brize Norton or RAF Lyneham.

Due to the number of casualties in Afghanistan and Iraq, a backlog of inquests has built up. It is undoubtedly important to consider the grieving families, who do not need the inconvenience and stress of travelling to England to attend a coroner's inquest. It is important that we find a solution that allows inquiries to be held locally to the families of the victims.

The debate has been useful, as it has enabled members to raise a number of important issues. I hope that Lord Cullen will give due consideration to the points that members have raised. We will be happy to support the motion as amended by Margaret Smith.

Photo of Paul Martin Paul Martin Labour 4:34 pm, 27th March 2008

Despite popular belief, we occasionally agree with the Cabinet Secretary for Justice, and the time is right for us to support him in his review of the legislation that governs the fatal accident inquiry process. We also agree with the appointment of Lord Cullen; he is an excellent choice to lead the inquiry and, as many others have said, his reputation speaks volumes. We have no doubt that he will ensure that we continue to deliver justice in the 21 st century.

Many members have referred to their own experiences of dealing with constituents who have been affected by the procedures that were followed during the FAI process. We have also heard about the public petitions process. Michael McMahon spoke effectively about the case of Mr and Mrs Curran, who made their concerns known through the public petitions process, after the death of their daughter, Gillian. It is important to put on record our appreciation of them for making their case so constructively, and of the Public Petitions Committee for ensuring that their concerns were amplified through the parliamentary process. The proposals to modernise the process that are before us today are a result of their actions.

It is important that Lord Cullen takes evidence from victims' families and considers a number of experiences that have been raised through the public petitions process. Those people's input is vital. He should also acknowledge that families find themselves part of the process through no fault of their own, that they have no specific knowledge and that the evidence they receive can be distressing. It is important to consider how to deal with families. As Pauline McNeill pointed out very clearly, families should get justice and answers through the FAI process.

We have received correspondence from Des Browne about how best to support service families. He sets out a welcome commonsense approach. The Scottish Government should build on that approach by considering how best to legislate to allow for the two main issues that Des Browne raises in his letter.

To paraphrase what Donald Dewar said in 1999, the Parliament is here to provide Scottish solutions for distinct Scottish needs. While we consider the pain that service families endure, the case for legislative change is compelling and right. We call on the Government to take the issue forward, taking into consideration the points that have been raised today.

If there was ever an argument for the UK and Scottish Governments to work together, this is it. That is why we will ensure that we work with the Government constructively to ensure that the families get the justice they deserve.

Nigel Don raised an effective point and genuine concerns about the monitoring of recommendations. We must recognise that a great deal of resource and time is invested in fatal accident inquiries. The crucial part of the process is in ensuring that lessons have been learned. That is the point that Nigel Don rightly raised. The monitoring of recommendations should play a crucial role in the process and it surprises many of us that more consideration is not given to ensuring that we monitor the recommendations and that they are delivered on.

The purpose of the fatal accident inquiry process is to learn lessons. If we do not monitor the recommendations that come out of an FAI, we do not complete the process. If we want genuinely to monitor recommendations, we cannot escape the fact that resources will be required. We and Lord Cullen will have to consider that issue. As Nigel Don said, resources will be required to ensure that we implement and monitor effectively, whatever recommendations Lord Cullen makes at the end of his review.

We welcome the commitment to have the review consider legal representation for families. Michael Matheson spoke effectively on that point. Fatal accident inquiries are complex, and we sometimes underestimate the challenges that families face during the process. Labour members believe that legal representation is a key issue. The current provisions may have been right in 1976, but in 2008 very different arrangements are required. Lord Cullen's findings on legal representation will be crucial.

We are encouraged by today's debate, which has been constructive. I reiterate that we will work closely with the Scottish Government and ensure that it works closely with the Westminster Government, which will be crucial in ensuring that the points that have been made today and the recommendations that Lord Cullen will make are given the priority they deserve.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 4:41 pm, 27th March 2008

I welcome the spirit in which the debate has taken place and the concordat that the parties reached beforehand on the amendment, which we are happy to support. Discussions are on-going not just in the chamber but, as Mr Martin and other members mentioned, between the Government here and the Government down in London. The attempt to achieve a solution to a shared problem is to be supported.

The chamber has taken a uniform view on some general issues. Members from all parties have welcomed the appointment of Lord Cullen. We are fortunate to have such an esteemed member of the judiciary take charge of the review. I wish I could claim some credit for the idea but, as is so often the case in matters relating to the law of Scotland, it emanated from the Lord Advocate. The Government is grateful for her suggestion and is pleased that Lord Cullen has accepted the appointment. His appointment shows the importance that we place on the issue. Lord Cullen will bring not just his great stature but a great deal of judicial wisdom and common sense to the matter, as he has to other issues with which he has dealt.

The Solicitor General and others mentioned that the act that we are reviewing is from 1976. That is not particularly old in jurisprudential terms—Mr Aitken referred to the Social Work (Scotland) Act 1968, and Mr Matheson and others mentioned legislation with an even longer history. However, it is appropriate that we review the 1976 act, because our society has changed.

The Solicitor General and many other speakers testified to the fact that the system has served us reasonably well. Clearly, there have been some failures and people have not obtained from the system all that they hoped, expected or were entitled to expect from it. There is nothing fundamentally wrong with the system in Scotland, but we must look at how we can improve it. I am sure that that will be Lord Cullen's approach. I assure members that my officials will give Lord Cullen a note of the points that have been made today and will ensure that he is aware of the tenor of the debate. I am sure that he will consider with interest some of the specific issues that have been raised.

One such issue is the status of sheriffs' recommendations. Because Lord Cullen will address the matter, it is inappropriate for me to be other than circumspect or to do more than outline the current position. As Nigel Don and others indicated, sheriffs make recommendations in about a third of all FAIs. Justice officials maintain a database of recommendations that are made by sheriffs at the conclusion of FAIs. The database includes the name and contact details of the person or body to which the sheriff addressed the recommendations, which permits interested parties to contact that person or body to inquire into how or whether they intend to comply with the recommendations. I am sure that that procedure can be improved, and no doubt Lord Cullen will reflect on the matter.

On the question of representation, interaction will be required with the legal aid system and its interface with members of the public and bereaved families, as Christine Grahame pointed out. Of course, there has been significant progress on that issue; for example, the Crown has published a brochure on the matter and meetings now take place with the relevant fiscal to address problems.

Michael McMahon highlighted the issue of road traffic deaths. However, as with military deaths, such matters are reserved to Westminster. As Karen Gillon pointed out, I have already made clear to the chamber my views on the various difficulties with the Scotland Act 1998, but the fact is that I can no more deal with certain aspects of road traffic incidents than I can reduce the current drink-driving limit. That interface must be dealt with.

Members have asked whether non-military deaths abroad should be considered in Scotland, and my experience as a defence agent suggests that they should not. If someone dies in suspicious circumstances abroad, the case is much better dealt with by the jurisdiction in which it happened. In my sojourn as a defence agent, I once dealt with a murder that happened outside Scotland—murder is one of the few offences that, if it happens outside Scotland, can still be tried in this country—and I do not think that the interests of justice were best served by such a move. Indeed, it became clear from the evidence that it might have been better for the authorities in the country where the incident took place to have proceeded with the case.

If a foreign tourist falls victim to an incident in this country, there are good reasons why we seek to address it here instead of remitting the case back to their home country. For example, we can deal with the preservation of evidence and the availability of witnesses, which can otherwise become hugely complicated. I understand people's concerns, but the general rule of thumb is that non-military deaths abroad are best dealt with by the jurisdiction in which the incident took place and with which we have reciprocal arrangements.

I want to take some time to address the important issue of military deaths. Like all members, we feel that there should be flexibility in addressing the needs of the bereaved. Although I accept the points that members such as Keith Brown have raised, I make it clear that we do not seek to stand on ceremony in relation to enforcement in such matters. We might be talking about the death of a young soldier or airman whose domicile became Scotland only because he had been based at RAF Kinloss or RM Condor marine base for some time. If that soldier's family lived in east London, for example, they might wish the hearing to take place closer to their home. I will leave that matter for discussions with the UK Government and to Lord Cullen for comment, but I believe that there should be some flexibility to give such families choice. The wife and family of a young serving soldier who died might have moved to be nearer her parents. As members have made clear, we need to look after the interests of the people who have suffered such loss.

I will give specific legal details in response to the issues raised by Karen Gillon in a moment. First, I should say that, although I wish I could treat the Scotland Act 1998 with as much disdain as people sometimes think I treat it with, the fact is that issues involving defence and international affairs, under which categories military funerals clearly fall, are reserved to Westminster. There should be changes to the reserved status of defence and international affairs—

Photo of Pauline McNeill Pauline McNeill Labour

I know that we will have a debate on this matter, but will the cabinet secretary first of all accept and act on the words of the Secretary of State for Defence, who does not feel that the Scotland Act 1998 needs to be amended? If he did, he would have said so in his letter.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

The short answer is that we cannot act until we have the flexibility provided by changes to the Scotland Act 1998. We are a creature of that statute and are constrained by its provisions. Members might have reservations about changing that legislation but, as I know from a civil context, we need to address practical issues such as how the Crown Office interacts with Government institutions elsewhere.

For some time, we have been pursuing a solution to the problem of how investigations and inquiries into the deaths on active service overseas of Scotland-based personnel can be dealt with, such that we can remove the additional distress that having to travel south of the border for inquest hearings causes bereaved families. The issue has been under consideration with the UK Government since last year, and I have written to the Secretary of State for Defence, Des Browne, this week to emphasise the urgency that we attach to it and to reiterate our desire to find a solution. That letter was copied to the Lord Chancellor Jack Straw and other Whitehall ministers with an interest in the issue.

As I have said, the chief complication is that the issue of inquiries into military deaths is reserved. The existing Scottish legislation only allows the holding of fatal accident inquiries into deaths that take place within Scotland or on the continental shelf. The existing legislation on coroners permits inquests to be held only within England. Inquests into the deaths of Scotland-based service personnel are triggered because bodies are repatriated by the Ministry of Defence to Royal Air Force airfields in the south of England for operational reasons, and there is no legislative basis for transferring responsibility for investigations to Scotland.

Therefore, there are difficult legal and policy issues that have to be resolved and which will take time to work through. The necessary legislative steps would require to be taken both at Westminster and in the Scottish Parliament, but only after a section 30 order under the Scotland Act 1998 had been made to permit this Parliament to deal with a matter that is currently reserved. Without a section 30 order, we cannot do so.

We have consistently argued for the section 30 route to be followed to address the issue, and the lack of progress at the Whitehall end is the subject of the letter that I sent to the Secretary of State for Defence. Members might have seen Des Browne's reply to my letter, in which he raises two issues. First, FAIs cannot be held into deaths that occur outside Scotland. However, as I have said, there is no appetite to investigate all Scottish deaths abroad—military deaths are the only cause of concern, but the Scottish Parliament cannot legislate for those alone because that would cut across the defence reservation. That is why we need a section 30 order and why the Scottish Parliament cannot legislate on the matter by itself.

The second issue relates to the fact that inquests into military deaths abroad are mandatory. The Ministry of Justice is concerned that if inquiries into the deaths of Scotland-based service personnel were held in Scotland, they would not be mandatory. Des Browne says that he cannot contemplate changes until there is a commitment to mandatory investigations. The issue of whether inquiries should be mandatory or discretionary can be discussed further with Whitehall ministers and if a section 30 order is made, it will be for the Scottish Parliament to decide whether such inquiries are to be mandatory or discretionary.

Photo of Karen Gillon Karen Gillon Labour

If the Parliament votes for the amendment in the name of Margaret Smith, which suggests that the holding of FAIs into the deaths of Scottish service personnel should be mandatory, would the cabinet secretary be inclined to take forward the necessary legislation?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

We have indicated our general support for the idea—that is why we support Margaret Smith's amendment. I would be delighted if we could deal with the issue ourselves but, for that to happen, we would have to be able to deal with defence and international affairs, which are reserved matters. If we had that ability, we could announce the withdrawal of our people from Iraq because we would be able to act without recourse to Westminster. However, we cannot bring our troops home from Iraq—or reduce the drink-driving limit—because such matters are reserved.

Photo of Margaret Smith Margaret Smith Liberal Democrat

Is it the cabinet secretary's understanding that the UK Government would be prepared to support the making of a section 30 order on the issue, given that both Governments appear to support the taking of the proposed action? The letter from the Secretary of State for Defence, which we have all seen, makes no mention of the need for such an order. Des Browne makes it clear that he considers the issue to be one for the Scottish Government to take action on. As the cabinet secretary knows from what has been said during the debate, the taking of such action would receive cross-party support in the Parliament.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

If Des Browne agrees to the making of a section 30 order, we can begin to make progress; without a section 30 order, it would be ultra vires for us to proceed—the Parliament simply could not take such action. That is the position. As long as defence and international affairs are reserved matters, the Parliament could decide that it wished to bring our troops home from Iraq, but it could not legislate to that effect because to do so would be outwith our competence and our powers. If a section 30 order is not made we will not be able to proceed, and although we have requested an order, one has not been forthcoming. We have written back to Des Browne, and I am open to meeting him or Jack Straw—or their officials—because I recognise that there is a desire not only in my party and the Government but throughout the chamber to take action. That is why we support the amendment.

I welcome Des Browne's letter, but I cannot agree with him that the matter is for Scottish ministers alone. To be fair to him, I accept that it is not a matter for him alone, either. There must be agreement. However, a section 30 order must be the initial trigger to allow us to have the legislative competence to bring about change.

Further meetings involving officials will take place soon to iron out the problems. Of course, we will have to consider the significant practical difficulties that are involved in carrying out fatal accident inquiries, or variations of them, if the death occurs abroad—particularly the difficulties that relate to the compellability of witnesses and the obtaining of evidence. I know that the Lord Advocate and the Solicitor General have legitimate concerns about those difficulties, and it would undoubtedly take time for appropriate processes to be introduced. There will also be considerable resource implications if investigations into military deaths abroad are to be investigated here—Mr Martin and other members mentioned that. However, the coroners service in England has long experience of such investigations and of dealing with such complications, and I am confident that the issues can be addressed in Scotland. [Interruption.]

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

Order. There are too many conversations in the chamber.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

Ministers are acutely aware of the sensitivity of the subject and will continue to press the UK Government in order to find a solution that will ease the position of bereaved families. Movement and legislation north and south of the border will be needed. However, I give members the undertaking that if the Government, as a body politic, is given a section 30 order, it will not seek to impede matters or interfere in any way. The Government and the Parliament cannot act without that order.

Des Browne's openness in spirit and his suggestions must be matched by a contribution from him. Given what has been said in the debate and members' willingness to act, I hope that the consensus that has been reached by all the major parties in the chamber will be replicated between the Government here and that south of the border.