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Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill: Stage 1

– in the Scottish Parliament on 24th September 2015.

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Photo of Elaine Smith Elaine Smith Labour

The first item of business this afternoon is a debate on motion S4M-14328, in the name of Paul Wheelhouse, on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill.

Photo of Paul Wheelhouse Paul Wheelhouse Scottish National Party

I am delighted to open the stage 1 debate on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. I thank the Justice Committee for its consideration of the bill and of Patricia Ferguson’s Inquiries into Deaths (Scotland) Bill, which I shall speak about shortly.

In 2008, Lord Cullen, the former Lord President of the Court of Session, was asked to undertake a review of the fatal accident inquiry legislation and his review team undertook a comprehensive and thorough review, reporting in November 2009. Lord Cullen made 36 recommendations for reform of the system. Some were addressed to the Crown Office and Procurator Fiscal Service and have already been implemented, principally by the establishment in 2010 of the Scottish fatalities investigation unit, which now oversees death investigations in Scotland.

The SFIU provides advice to procurators fiscal who investigate deaths locally, liaises with Crown counsel on complex death investigations and liaises with the bereaved family or families. Approximately 11,000 deaths are reported to the Crown Office each year. Fiscals conduct investigations in around half of those cases—about 5,500 deaths—and an average of between 50 and 60 FAIs are held per year. Thus, the overwhelming majority of deaths that are investigated by procurators fiscal do not result in a fatal accident inquiry because it is not deemed to be necessary.

Lord Cullen’s aim was to set out practical measures for an effective, efficient and fair system for inquiry. That is also the aim of the Scottish Government’s bill. It will build on Lord Cullen’s recommendations that were implemented by the Crown Office to make the system more efficient, for example by greater use of preliminary hearings and by more flexible accommodation arrangements for FAIs. It will ensure that FAIs remain inquisitorial fact-finding hearings.

FAIs are not meant to hold people to account, as the media occasionally mistakenly suggest. They do not apportion blame or guilt in the civil or criminal sense; that is for civil or criminal proceedings. FAIs are inquisitorial judicial inquiries that are held in the public interest to establish the circumstances of sudden, suspicious or unexplained death or deaths that have caused serious public concern. The sheriff will consider what steps, if any, might be taken to prevent other deaths in similar circumstances.

The bill will rationalise and extend the categories of death in which it is mandatory to hold a fatal accident inquiry and include deaths of children in secure accommodation and deaths under police arrest, irrespective of location. It will, for the first time, permit discretionary FAIs into deaths of Scots abroad. I thank the family of Blair Jordan for sharing their experiences with me following Blair’s death off the coast of Japan in 2009.

With regard to deaths abroad, the Government is minded to take into account concerns raised by the Justice Committee to remove the requirement that the body must be repatriated before such an inquiry might take place. There might be occasions when a body has been lost or is otherwise not available for examination or post mortem. It is right that in such exceptional circumstances the possibility of a death investigation and potentially an FAI into a death abroad should not be lost. That will be an advance on English law and practice where there would be no coroner’s inquest in the absence of a body in those circumstances.

The bill will, for the first time, permit FAIs to be reopened if new evidence arises or, if the new evidence is so substantial, to permit a completely new inquiry to be held. Sheriffs will be permitted to disseminate determinations to regulatory bodies, which can implement any recommendations made. Finally, and crucially, the bill will, for the first time, place a requirement on those to whom sheriffs direct recommendations at the conclusion of an inquiry to respond and to indicate what action they have taken or, if they have not taken action, to explain why not.

Sheriffs make recommendations in around a third of all FAIs for precautions that might be taken to prevent deaths in similar circumstances in the future. The response, or lack of response, to a recommendation will be published along with the sheriff’s determination to create a public record. That procedure will replicate the system used under coroners’ inquests in England and will foster compliance with sheriffs’ recommendations in a transparent way.

The question of delays in holding an FAI has often been cited as one of the main concerns with the system of FAIs. Lord Cullen opposed the introduction of statutory timescales. He believed that the complexity and diversity of FAIs meant that timescales would be counterproductive. Rigid timescales might mean that the FAI might not achieve the aim of finding out the cause of death and any recommendations by which it might have been avoided. That view was confirmed by 80 per cent of respondents to the Scottish Government’s consultation on legislative proposals.

There are very often legitimate and unavoidable reasons for delays between the date of death and the beginning of an FAI, such as the need to wait for the outcome of other investigations by bodies such as the Health and Safety Executive or the Air Accidents Investigation Branch; the possible need to obtain expert advice; the need to consider whether criminal proceedings are appropriate; and, above all, the overriding necessity of conducting death investigations thoroughly—that factor is of particular relevance in relation to the complexity of some investigations, especially those involving medical cases and of course helicopter crashes.

Like the Justice Committee, I welcome the commitment by the Solicitor General for Scotland to produce a charter for families. That will provide clarity regarding what information the bereaved family will be provided with at the different stages of a death investigation and how and when that information will be communicated to them by the Crown Office.

It is proposed that the Crown Office will offer to meet bereaved families within three months after the date that the death has been reported to it to give them an update on the progress of the death investigation, the likelihood of criminal proceedings and the possibility of an FAI. The charter will also explain the different stages of a death investigation and set out the commitments of the Crown Office in terms of keeping in touch with relatives.

The Scottish Government is minded that the bill should be amended at stage 2 with a provision that will underpin the charter, as helpfully suggested by Patricia Ferguson, whose interest in FAIs is, I know, driven by her experience of the Stockline tragedy. A charter with statutory status should address concerns over delays and communication, and it should complement the provisions in the bill to make the FAI system more efficient. I am happy to work with Patricia Ferguson on such an amendment.

The Scottish Government has been discussing with the United Kingdom Government proposals to permit deaths in Scotland of service personnel in the course of their duties to be the subject of a mandatory FAI. Following representations that I have made to the UK Government, I am delighted to be able to tell members that the UK Government has given its in-principle agreement that it should be possible for a mandatory FAI to be carried out for such deaths, in the same way that such deaths would be subject to a coroner’s inquest if they occurred in England or Wales. I commend Flt Lt James Jones for bringing that important matter to the attention of the Scottish Government and the Parliament.

That change to the law will not, however, be effected by amending the bill. The matter falls within the defence reservation, and thus the change will have to be achieved by means of an order under section 104 of the Scotland Act 1998. I have written to all relevant UK ministers to inform them of our intention to seek a section 104 order.

I would like to take a moment to explain why there are some matters that are not provided for in the Scottish Government’s bill.

There is no provision in the Government’s bill for mandatory FAIs for deaths resulting from industrial disease or exposure to hazardous substances. That is because, as the Solicitor General confirmed in her evidence before the Justice Committee, the Lord Advocate can exercise his discretion to have an inquiry, particularly in cases involving a new type of industrial process or a new disease, where there would be public concern about the issues. There is little, if any, value in terms of public interest in holding an FAI into a death resulting from an industrial disease where the dangers are already well known and well acknowledged.

There is no provision in the Government’s bill for mandatory FAIs for the deaths of detained or voluntary mental health patients. Neither the Mental Welfare Commission for Scotland nor the Royal College of Psychiatrists believes that it is necessary or even desirable to hold mandatory FAIs in such cases. Indeed, there is concern that doing so might prove distressing to the bereaved family. The Royal College of Psychiatrists described the proposal as

“unduly legalistic, in that it will impose large numbers of elaborate, expensive and drawn-out judicial procedures upon families, clinicians and services with no discernible benefit in prospect to justify it.”

Members will be aware that section 37 of the Mental Health (Scotland) Act 2015 requires ministers to carry out a review within three years of the arrangements for investigating the deaths of compulsorily detained mental health patients or those who were admitted voluntarily for treatment for a mental disorder. Section 37 arose from an amendment proposed by Dr Richard Simpson during parliamentary consideration of the bill, and the Government accepted the desirability of a statutory review in the context described in section 37. I do not believe that it would be appropriate or sensible to legislate to extend the mandatory category in relation to deaths of mental health patients in advance of the work of that review.

I turn now to Patricia Ferguson’s Inquiries into Deaths (Scotland) Bill. Although I do not support the bill, I pay tribute to the work that Patricia Ferguson has done over the past couple of years in relation to the system of fatal accident inquiries, which has been informed by her involvement with helping families affected by the Stockline tragedy. Although Ms Ferguson originally claimed that her proposals would implement Lord Cullen’s recommendations in his review, she now believes that they do not go far enough. However, I note that in some respects Ms Ferguson’s bill contradicts Lord Cullen’s conclusions.

The Government believes that its bill is a proportionate response to Lord Cullen’s recommendations to reform the system of FAIs. Criticism of the system has arisen from some high-profile and controversial cases, but some of them did not even result in an FAI, because the circumstances of death were established in criminal proceedings. Some of Ms Ferguson’s proposals are, in our opinion, inappropriate and unworkable, and we believe that they would have potentially a significant negative impact on the Crown Office, the Scottish Courts and Tribunals Service and the legal aid fund, which is why we urge members to resist them.

The Faculty of Advocates has said:

“The proposed Inquiries into Deaths (Scotland) Bill put forward by Patricia Ferguson could result in FAIs becoming longer, more complex and more expensive, when the aim was to make the process quicker and more transparent.”

The faculty goes on to say:

“We think certain aspects of the proposed Bill have the potential to encourage FAIs to become adversarial in nature as opposed to inquisitorial.”

I know that that is not what Patricia Ferguson intends to happen, but we share the view of the Faculty of Advocates, which also said:

“Other unintended and unwelcome consequences … are the increase in the length, complexity and additional expense of FAIs, and potential for injustice arising from the provisions relating to the enforcing of recommendations.”

I know that Patricia Ferguson has amended some of her original proposals, but the main planks of her bill remain largely untouched. In particular, there are two areas of it where, regrettably, the Scottish Government believes the reforms suggested might not be workable: first, the proposal to make sheriffs’ recommendations legally binding and appealable, with criminal sanction in the event of non-compliance; and, secondly, mandatory inquiries for deaths from industrial diseases.

I have already set out the Scottish Government’s position in relation to the latter; in terms of the former, I welcome Patricia Ferguson’s argument in the explanatory notes for her bill that a sheriff’s determination should be inadmissible in evidence and should not be founded on in other judicial proceedings—that is also what the Scottish Government’s bill provides. The Scottish Government entirely agrees that that is an essential element of the distinction between, on the one hand, the fact-finding, inquisitorial nature of an FAI, with the sheriff empowered to make recommendations; and, on the other hand, the fault-finding, adversarial nature of other legal proceedings.

It is not the purpose of an FAI to establish liability for negligent actions. As Ms Ferguson has suggested, if liability arises from a death, a civil case is the forum where those matters are examined. That statement of principle is, however, undermined by the provision in Ms Ferguson’s bill to make sheriffs’ recommendations enforceable with an appeal process.

The suggestion that an FAI might be held before the sheriff personal injury court is another example of where we disagree with Ms Ferguson. Personal injury actions are adversarial proceedings that seek to establish negligence as grounds for the payment of damages as redress, whereas FAIs are inquisitorial actions that do not apportion blame or guilt and are thus a completely different legal specialism.

Patricia Ferguson’s bill would effectively turn FAIs into preliminary hearings for subsequent civil action. That is opposed by many stakeholders, including Lord Cullen, Lord Gill and the Health and Safety Executive.

I have met Patricia Ferguson on a few occasions throughout the process to try to find common ground, and I am happy to continue to do so. I am pleased that we have found areas in which we can work together in taking forward the Government’s bill.

In summary, the law relating to fatal accident inquiries in Scotland has not been revisited for almost 40 years and therefore never before by the reconvened Scottish Parliament. Lord Cullen has identified areas for reform and, thanks to the charter that the Crown Office is introducing, bereaved families will be kept fully informed of the progress of a death investigation and the likelihood of criminal proceedings or the potential for an FAI. For those cases that proceed to an FAI, the Scottish Government’s bill provides for a coherent, proportionate and modernised system of fatal accident inquiries that is fit for the 21st century.

I will be lodging technical amendments at stage 2 to improve and clarify the bill, in the spirit of the inquisitorial principle that the Government is inviting the Parliament to endorse today. I intend to work closely with Patricia Ferguson to put the Crown Office’s charter on a statutory footing. I commend the motion in my name, and I thank members for their time.

I move,

That the Parliament agrees to the general principles of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Bill.

The Deputy Presiding Officer:

I note at the start of the debate that we have a little bit of time in hand this afternoon.

Photo of Christine Grahame Christine Grahame Scottish National Party

I welcome the opportunity to speak as convener on behalf of the Justice Committee, which is the lead committee considering the bill. As members are aware—I remind them for good measure—“on behalf of” means exactly that. I am not speaking in a personal capacity, so I will not veer off piste.

I thank all those who took the time to provide evidence to the committee and in particular those family members who told us about their frustrations with the justice system over the investigations into the tragic deaths of their loved ones. It is not easy to come before a parliamentary committee at any time, and especially not when pain at the death of loved ones is, as always, very near the surface. I also put on record my thanks to hard-working committee members and the hard-working clerking team.

I, too, acknowledge Patricia Ferguson’s on-going and extensive work in the area of FAIs. As part of our consideration of the Government’s bill, we heard evidence on her related bill on FAIs, which has informed the committee’s thinking with regard to the current FAI process. We published a separate stage 1 report on Patricia Ferguson’s bill; I understand that it will be debated next week, so I will not explore it in any detail in my speech today.

I should make clear that our scrutiny of the Government’s bill predated the recent FAI into the tragic events that happened last Christmas, and therefore the issues that were raised in that FAI are not reflected in our report in any way.

The committee unanimously supports the general principles of the bill, which we consider to be essential in updating a law that was enacted almost 40 years ago. We hope that the bill will be used as an opportunity to provide more clarity and understanding around FAIs, especially for those who have lost loved ones in often tragic and unexplained circumstances. It cannot be emphasised enough, however, that an FAI is held by the Crown in the public interest, as indeed are criminal prosecutions under common law.

We have made a number of recommendations that are aimed at improving certain aspects of the bill. In the time available, I will refer to a few of them; no doubt other members will elaborate.

Photo of Johann Lamont Johann Lamont Labour

Did the committee look at the definition of what is in the public interest? In my experience, the definition is drawn so narrowly that issues that people feel would be of public concern are excluded from an FAI.

Photo of Christine Grahame Christine Grahame Scottish National Party

No—I think that it would be very dangerous for us to interfere with the independence of the Lord Advocate, who takes the decision on what is and what is not in the public interest. I will refer to that issue when I come to my point about families who are told why there will not be an FAI.

The subject of delays and the role of families are important. In evidence, we heard about a real lack of clarity and understanding about the role of the bereaved family in an FAI. That cannot be emphasised often enough. Again, quite understandably, relatives may have the understanding that the FAI is on behalf of the deceased. We understand why that is, but I stress again that an FAI is held in the public interest. An FAI is not a trial, and if there is the prospect of a criminal prosecution the FAI may be delayed until a decision is made in that regard.

There was concern not just about those aspects, which are important, but about a perceived lack of communication with families at various stages of the often lengthy process, and about decisions not to hold an FAI when it is not mandatory. In that regard, we welcome the requirement that the Lord Advocate will provide written reasons for a decision not to hold a discretionary FAI, but we consider—I highlight to Johann Lamont—that reasons should be given whether or not a request is made. In other words, reasons should be given whether or not the family makes a request, so that there is some explanation to relatives of why it has been decided that it is not in the public interest to have an FAI.

Although one of the main criticisms of the current system was the lengthy delays between a death and the start of an FAI, we understood that there could be good reasons for that, not least, as I have said, to establish whether criminal proceedings are appropriate. However, families told us that they often received little communication or explanation about what was happening in the intervening period. I stress again that we should always bear in mind that families are grieving and that, for all sorts of reasons, an FAI will be an additional ordeal.

The committee was therefore encouraged when the Solicitor General for Scotland announced to us that the Crown Office is working on the milestone charter—to which the minister referred—to clarify what the bereaved family should expect from the process. I welcome, too, the minister’s commitment in his response to the committee’s report that he will lodge an amendment to place the charter on a statutory basis.

As the minister said, mandatory FAIs are currently held when a death occurs in Scotland either as a result of a work-related accident or when the deceased was in legal custody at the time of death. The former does not apply to the armed forces or indeed to police officers on duty. To give some context, I will repeat what the minister said, which was that death investigations are carried out by the Crown Office and Procurator Fiscal Service in roughly half the deaths—about 11,000 a year—that are reported to the procurator fiscal. Only some 50 to 60 of those result in an FAI.

We heard from some witnesses that mandatory FAIs should be held in a number of circumstances in addition to those that are specified in the bill, for example after the death of a person detained under mental health legislation or after the death of a looked-after child, as such cases can involve some of the most vulnerable people in our society. Others did not think that it was necessary or proportionate to hold an FAI in each and every case.

The committee asked the Scottish Government to consider the issue further. I note that the minister has concluded that the decision in those cases should be left to the Lord Advocate, acting in the public interest.

We welcome the provision in the bill to allow FAIs to be undertaken when a death has occurred abroad, but we were concerned about the particular stipulation that, for an FAI to be undertaken into such a death, the body must be repatriated. We felt that there could be circumstances in which there would be sufficient evidence to hold an FAI without the repatriation of a body—for example when someone is lost at sea—and we recommended that the Scottish Government should lodge an amendment at stage 2 to allow for some discretion in that area. I therefore welcome the minister’s commitment to do just that.

The committee was surprised to hear that mandatory FAIs are not held into the deaths of military service personnel in Scotland. Such deaths would be subject to a mandatory coroner’s inquest if they occurred in England and Wales. FAls can be held into the deaths of Scottish service personnel that occur abroad. The committee was therefore concerned about the situation in Scotland and was keen for the Scottish Government to look into the issue further. I note the minister’s response that a change would need to be achieved through an order under section 104 of the Scotland Act 1998, as the matter is reserved. I am encouraged—I think that the committee would be encouraged, too—that the UK Government has, in principle, agreed that such deaths in Scotland should be treated in the same way as they are in England and Wales. That issue was raised with the committee by a member of the public and I commend him for his resolve in pursuing the matter.

The committee welcomes the proposals in the bill to require sheriff’s recommendations to be published and to oblige those to whom they are directed to respond. There was general agreement among witnesses that the recommendations should be published on the Scottish Courts and Tribunals Service website, as proposed in the bill.

Photo of Patricia Ferguson Patricia Ferguson Labour

Like the committee convener, I would welcome that move. However, does she agree that the final report of perhaps a yearly return should be laid before the Parliament?

Photo of Christine Grahame Christine Grahame Scottish National Party

I return to what I said as a caveat at the beginning of my speech, which was that I speak with my convener’s hat on. Members have that on the record but I cannot comment on it today. However, I have no doubt that the minister heard it and can comment.

Some witnesses felt that the Scottish Government or another body should take a more active role in ensuring that the recommendations are implemented, while others highlighted the difficulties in placing a duty on a particular body to do that. On balance, the committee considered that the requirements in the bill were sufficient. I note that the minister, in his response, highlighted that the bill’s provisions in that area broadly replicate the system in England and Wales, which he believes is appropriate and workable.

I have touched on some of the issues that were raised in evidence during the committee’s stage 1 consideration of the bill, but I am sure that other committee members will wish to pick up some of the areas that I have not had time to cover. I look forward to hearing other contributions in the debate and to debating Patricia Ferguson’s member’s bill next week.

Photo of Elaine Murray Elaine Murray Labour

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo of Margaret Mitchell Margaret Mitchell Conservative

I welcome the stage 1 debate on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. I thank the many witnesses for their valuable contributions and the Justice Committee clerks for their work in delivering a comprehensive report.

It was the evidence that was provided by one witness, Flt Lt James Jones, that highlighted that no mandatory FAIs are carried out in Scotland following the deaths of service personnel abroad. I am therefore pleased that agreement in principle has been reached with the UK Government to ensure that a mandatory FAI can be held in those circumstances, in the same way as investigations into such deaths are carried out by a coroner in England and Wales.

I acknowledge and pay tribute to the extensive work that Patricia Ferguson has done on her bill, which covers the same policy area and which we will discuss more fully next week.

In 2008, in recognition of the fact that FAIs required significant reform and modernisation, Lord Cullen carried out a review. The treatment of bereaved families and the lengthy delays to the commencement of inquiries, aggravated by patchy communication from the Crown Office and Procurator Fiscal Service, formed the basis that prompted many of the review recommendations and the subsequent provisions in the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. The affected families have already endured the distress and pain of losing a loved one and, although FAIs are undertaken in the public interest, they undoubtedly significantly help to offer resolution and much-needed closure for relatives.

However, some important recommendations that Lord Cullen made in his review are not in the bill, including the suggestion of holding an early hearing when an FAI is mandatory. When he gave evidence to the committee, Lord Cullen said that he proposed such a procedure

“simply to let the families and other persons who are directly involved know what is going on so they can be satisfied that all proper steps are being taken to progress matters.”—[Official Report, Justice Committee, 5 May 2015; c 5.]

Stakeholders had mixed responses to that suggestion, with campaigners broadly in favour of the idea. Lord Gill, on the other hand, expressed doubts that formal meetings were necessary when the same outcomes could be achieved if the Crown established

“good protocols of conduct whereby the relatives would be kept in touch.”—[Official Report, Justice Committee, 19 May 2015; c 37.]

Significantly, Lord Cullen stated:

“If the COPFS has made improvements such that fears about the family not being kept fully in the picture are groundless, that makes an early hearing of the type that I described ... unnecessary.”—[Official Report, Justice Committee, 5 May 2015; c 5.]

In response to some of that evidence and the legitimate concern that there is a pressing need to reduce the unacceptable delays that adversely affect bereaved families, the Solicitor General committed to producing a milestone charter. It outlines what families can expect from the COPFS in relation to the timings of investigations and decision making. The priority must be to keep relatives informed while concentrating the minds of the COPFS on the work that must be done to avoid delays.

The committee has yet to receive a draft of the charter—perhaps the minister could give us some idea of the timescale for when it will be available—but, if it measures up to expectations, it will most certainly be a positive step forward.

I turn next to the Cullen review recommendation that a mandatory FAI should be held when someone was, at the time of their death, subject to compulsory detention by a public authority, which would include detention under mental health legislation. During evidence sessions, concerns were expressed about how the deaths of those who were detained under mental health legislation are investigated in practice. However, in considering its stage 1 report, the committee concluded that there is no need for mandatory FAIs in such circumstances, because some deaths of those who were detained under mental health legislation are straightforward—for example, they clearly result from natural causes.

Given that those who are detained under mental health legislation are some of the most vulnerable in our society, I revisited Lord Cullen’s review and noted that he states that

“even investigations into deaths by natural causes may reveal unsafe conditions ... it is in the public interest that an FAI should be held into the deaths of those detained by the state, especially those who are most vulnerable.”

Therefore, even in the case of so-called straightforward deaths, such as deaths from natural causes—and despite the comments from the Mental Welfare Commission and others, to which the minster referred—I believe that there are still many issues to consider before rejecting the need for a mandatory FAI to be carried out. There is merit in revisiting the issue at stage 2.

I would like to highlight two further areas. The first is the withdrawal of the reasonableness test—to which Elaine Murray referred—for legal representation for the deceased’s relatives. Although I appreciate that it is not an access to justice question in the conventional sense, Lord Cullen emphasised that the crucial question is

“whether there is a public interest ... in families having that degree of support.”—[Official Report, Justice Committee, 5 May 2015; c 8.]

I urge the Scottish Government to consider the question carefully at stage 2. Secondly, Lord Cullen recommended the creation of a central team to co-ordinate and monitor FAIs. That idea seems sensible and there is a precedent for it in the form of the domestic abuse task force.

If the improvements to the bill are to be realised, it will be vital for the Crown Office and Procurator Fiscal Service, which is already under immense strain, to have the resources in place to deal with FAIs efficiently and effectively. I confirm that the Scottish Conservatives support the general principles of the bill.

The Deputy Presiding Officer:

We are fortunate to have a little time in hand, so I can allow speeches of a generous six minutes.

Photo of Roderick Campbell Roderick Campbell Scottish National Party

I apologise to the chamber for the fact that I will not be able to stay for the full debate because I have another pressing engagement. I refer members to my registered interest as a member of the Faculty of Advocates.

In the light of recent events in another part of the country, it is fair to say that there is greater interest in fatal accident inquiries than there has been for many a long year. Accordingly, it cannot be overemphasised that the purpose of an FAI is not to address issues of criminal behaviour. Such issues really need to be resolved before an FAI can proceed meaningfully. An FAI should be about learning lessons from the past that can be applied in the future.

The bill is the result of Lord Cullen’s deliberations, but it does not follow his recommendations totally, as Margaret Mitchell said. For example, on matters such as an individual’s death in a setting where they have been detained, such as a mental hospital, he reaffirmed his view that it should be a mandatory requirement that an FAI take place, whereas the Government favours the Lord Advocate having discretion. In my view, the difficulty of having a mandatory requirement is that it would inevitably require procedures to be adopted that would have no meaningful impact, in most cases, on the key issue of learning lessons for the future.

What is important is that there is a clear understanding of matters such as what a graduated scheme of investigations means in practice. As Cathy Asante of the Scottish Human Rights Commission suggested in oral evidence, we need to ensure that article 2 of the European convention on human rights is properly respected. I am pleased by the minister’s responsive attitude to suggestions of optimal best practice in that area.

Whatever else there ought to be, there should be an acceptance that the families and friends of people who die in such circumstances need assurance that the demise of their nearest and dearest has not given rise to any issues that require answers. In most cases of death by natural causes, that will be true. Of course, we have to accept that, in considering article 2—the right to life—when an inquiry is required, case law suggests that any inquiry must be independent, effective, prompt and subject to public scrutiny, with the next of kin involved.

However, I am mindful that, since we took evidence, the Mental Health (Scotland) Act 2015 has been passed, with a requirement that a review of the arrangements for investigating the deaths of such patients be carried out within three years of the legislation coming into force. Any further information that the minister can give on that review would be welcomed.

On timescales for carrying out FAIs, we obviously need reasonable expedition, and I can see the case for statutory timetables but, in practice, that might lead simply to an extra hurdle without necessarily bringing matters to an earlier conclusion. We should therefore rely on a commitment to good practice from the Crown Office.

On the question of requiring the Crown to explain why no discretionary FAI will take place, I am encouraged by the milestone charter and the Government’s support for the charter having statutory underpinning. A strong commitment to keeping relatives informed about progress is essential.

On the question of the provision of written reasons to relatives as to why an FAI is not being held, I appreciate the Crown’s response to the committee’s recommendations but, for me, the key issue is that families know that they have a right to request FAIs.

In relation to suggestions that the sheriff’s recommendations should be legally binding, I am on the side of those who believe that, if that were adopted, it would fundamentally change the nature of an FAI. As Lord Cullen suggests, an FAI is not for the purpose of establishing rights, duties and obligations. As Tom Marshall of the Society of Solicitor Advocates said,

“One of the values of the inquiry process is that it ought to be an open process in which people should not be taking sides, because the object is to get the facts into the open and to bring as much information to light as possible, so that lessons can be learned.”—[Official Report, Justice Committee, 19 May 2015; c 13.]

As for issues of compliance and who has a duty, if any, to monitor, the aim must be for recommendations and responses to be easily available on the Scottish Courts and Tribunals Service website. Regarding a comment that Patricia Ferguson made, I am certainly open to a wider dissemination of that information, although we ought to appreciate that that might have cost implications.

I turn to FAIs into the deaths of service personnel in Scotland. We heard evidence from Flt Lt Jim Jones about the difficulties of holding FAIs in Scotland for members of the forces who die in Scotland. The 1976 act refers to a requirement to hold an FAI when someone dies in the course of their employment or occupation, which has been held to exclude both servicemen and—I believe it is also argued—police officers. That led to the somewhat odd situation that an FAI took place into the helicopter tragedy in the Mull of Kintyre some 20 years ago only because there were also civilian deaths. That distinction, which is based on the royal prerogative, seems to have long outlived its usefulness. In civil cases it seems to be ignored, and it remains alien to the inquest procedure south of the border. In that respect, Scotland needs to learn from its southern neighbour.

I am grateful for the minister’s earlier comments on the matter, which I noted carefully. As I have servicemen in my constituency, some of whom I will be meeting tonight, it would be good to be able to advise them that, should they die unexpectedly in the course of their duties, a mandatory FAI would at least be a possibility.

Photo of Patricia Ferguson Patricia Ferguson Labour

As we have heard, it is now seven years since the Scottish Government commissioned Lord Cullen to review the system of fatal accident inquiries, and it is some six years since he delivered his report, so I am genuinely very glad that we are now in a position where a bill based on his report is being debated.

My member’s bill—the Inquiries into Deaths (Scotland) Bill, which also considers how FAIs should operate—was in part a reaction to the lack of progress from the Scottish Government, but it was also an attempt to make more radical reforms than those proposed by Lord Cullen or indeed by the Scottish Government. That has always been my position.

The most important people in the process should be the bereaved families. It is they who have suffered the greatest loss, and they deserve to know why the death of their loved one occurred and to know that everything possible is being done to prevent such tragedies in the future. It has been suggested to me—we have heard this view today—that FAIs should be about the public interest rather than about individual families, but how can an inquiry be in the public interest if it does not have at its heart those who are most directly affected by it?

It is fair to say that the Scottish Government and I differ on a number of areas and a number of points of policy, but I have no doubt that the minister sincerely wishes to make the system better. He needs to go further, and I will outline where the Scottish Government’s bill must be strengthened at stage 2.

As members know, the Justice Committee has recommended that the Scottish Government’s bill is the best vehicle to reform the system and has urged the Scottish Government and me to collaborate—that is a good word. As the minister indicated, we met yesterday to consider how that might be done. In the spirit of that collaboration, I wrote today to the Parliament’s clerk to withdraw my bill with immediate effect. I did not take that decision lightly, but I took it in the expectation that the Scottish Government will continue the collaboration that began yesterday and in the hope that it can still be moved on a number of points. I do not have time to comment on every issue that I have with the Scottish Government’s bill, but I will highlight some particularly important points.

I welcome the draft milestone charter drawn up by the Crown Office and Procurator Fiscal Service. It outlines various stages that follow from a sudden or unexpected death and provides a timetable within which family members will be informed of decisions being made. That is welcome. In the case of an FAI, the charter states that family members will be advised within 14 days of Crown counsel issuing instructions. That is a really welcome step forward but—this is a big but for me—the problem is often the time that Crown counsel takes to make the decision, not the time that is taken to communicate the decision once it is made.

I realise that the circumstances of a death are complicated and that other investigations must take place before an FAI is held, but families understand that too, which is why we must get the framework for that communication right. I appreciate that the minister now agrees with me that those provisions should be enshrined in law and I will work with the Scottish Government on amendments to give effect to them. However, whatever changes Parliament ultimately makes, there should be no situations in the future in which people are left for four or five years without even knowing whether an FAI will take place.

I accept that the Scottish Government is carrying out reviews of issues that are connected to the sudden deaths of patients who were detained under mental health legislation and to the situation of looked-after children. I am pleased that that work is being undertaken but—I do not want to make too much of a point of this, but I will make the point nevertheless—I hope that the findings of those reviews will be implemented more quickly than Lord Cullen’s review of FAIs was. I am not quite persuaded that we need to wait for those reviews to be completed, and I will reflect on that before stage 2. However, the approach is a step forward.

The Scottish Government and I still disagree on whether the findings of an FAI should be enforceable. The Scottish Government suggests, as others have done, that making the sheriff’s recommendations enforceable would turn an inquisitorial inquiry into an adversarial one. Can the minister really say that FAIs are never adversarial under the current system? The events of this summer suggest that some are extremely adversarial and, if we ask any lawyer, family member or trade union official who has attended an FAI, they will tell us that, when a worker and an employer are involved, FAIs can be very adversarial indeed.

The nature of an FAI should surely not be a reason for discounting enforcement when and if—and only when and if—a sheriff deems it necessary. I have cited before examples such as those at Bellgrove and Newton where, if the sheriff’s initial recommendations had been enforced, the second fatal accident would have been unlikely to occur.

Surely the Parliament should seek to do all that it can in the legislation that it passes to prevent such fatalities. We have heard a lot today about the public interest; I describe preventing fatalities as being in the public interest. I am pleased to note that the Law Society of Scotland seems to be coming closer to agreeing with me on that point, and I sincerely hope that the Scottish Government will accept the amendments that I will lodge on the issue at stage 2.

Given that I have withdrawn my bill, I hope that the Presiding Officer will allow me to thank the Justice Committee and its clerks for their consideration and scrutiny of both bills. It has been an interesting process to go through. As I have been on both sides of the table more than once, I know which side I prefer to be on. I also thank the non-Government bills unit for all its support through the process, the staff of my constituency office and Patrick McGuire of Thompsons Solicitors, whose advice to me was second to none, as is his commitment to the issue that both bills cover.

Photo of Christian Allard Christian Allard Scottish National Party

Fatal accidents and sudden deaths are unforeseen tragedies. It is hard to comprehend how families and friends can deal with the aftermath of such tragedies. I have an insight into what they go through, as I lost a loved one who was aged only 33. We had to wait for the autopsy and for an investigation to take place before I could start to organise the funeral arrangements. That is an ordeal that many families have to go through. Anything that we can do to help people who are recovering from the sudden death of a loved one is very much in the minds of everyone who supports the proposed reform and modernisation of the fatal accident inquiry legislation in Scotland. The legal process must be clear and understood by all. Families must be at the centre of it, and it must be effective, efficient and fair.

As a member of the Justice Committee, I would like to add my thanks to everyone who participated in our consideration of the bill and helped to make the report what it is. I thank the people and the organisations that came to give evidence for their written submissions, and I thank the committee clerks for their work. I also thank all the members of the committee. The Justice Committee is a committee that works well. It is one on which the Scottish National Party does not have a majority—and I am not talking about the role of the convener. I see that Christine Grahame has left her seat. The strength of the Parliament lies in its committee structure. We scrutinised the bill, which is a proposed

Act of the Scottish Parliament to make provision for the holding of public inquiries in respect of certain deaths.”

We challenged and questioned not only the Scottish Government but the judicial system and the UK Government.

I want to talk about a change in the bill that our report asked to be made and which the Crown Office and Procurator Fiscal Service has indicated it would be prepared to accept. I will go on to talk about an issue that was brought to our attention during evidence taking. It is an issue that gives rise to a lot of questions, the answer to which concerns a reserved matter, so the UK Government will need to help our Scottish Government to address it. Elaine Murray called it a strange anomaly; I would describe it as another example of Britain’s archaic system. In some areas, a great deal of modernisation is required to make sure that we are up to date. We were very surprised by what we learned from a member of the public who came to see us.

One of the bill’s aims is to strengthen the existing legislation by extending it to cover death abroad, as other members have said. For the first time, on the recommendation of Lord Cullen’s review, it will be possible to have fatal accident inquiries into the deaths of people who are resident in Scotland who die abroad. The bill also makes provision in relation to service personnel who die abroad.

All the witnesses welcomed that new power, but I was concerned that it would exclude cases in which the body could not be brought back to Scotland. I worked in the fishing industry for 30 years and now I represent many constituents from the north-east who work offshore, some of whom work abroad. My experience tells me that fatal accidents and sudden deaths happen—we know that they do—but, for obvious reasons, in those exceptional circumstances there is no way that the body can be brought back to the families. Jake Molloy of the RMT told us that much, and the Solicitor General for Scotland agreed that there should be some flexibility, so I am delighted that the COPFS has reconsidered its position, and I thank the Scottish Government for agreeing to consider the recommendation that we made on page 23 of our report that an amendment be lodged at stage 2.

The second issue, which has already been debated a lot, became a concern for us all in the committee. Flt Lt James Jones, who is a retired member of the Royal Air Force, brought it to our attention. He said in his written submission:

“The interpretation of the current Act, by the Crown Office, discriminates against members of the Armed Forces in that ... They are not regarded as ‘employees’”.

He added:

“Public interest is not given the same importance as in civil accidents”.

I have to admit that I was shocked to hear that members of our armed forces are not considered to be employed by the Ministry of Defence. Why on earth would boys and girls who choose one of the most dangerous vocations on earth, for which we are all thankful, not be given the same protection that we all enjoy?

When Flt Lt Jones came to give evidence in Parliament, he told us that, under the 1976 act, a fatal accident inquiry is mandatory only when the person was acting in the course of their employment or occupation. I asked him to clarify his comments about the MOD investigating itself. He replied:

“it is okay for the MOD or the Military Aviation Authority to do their own inquiries, and ... it is important for them to do that because any immediate problems can be put right, but such inquiries do not replace proper inquiries in the public domain. There is no input to a military inquiry. It is like asking a person who runs a factory in which someone has died because a machine was operated unsafely to carry out their own investigation and to make recommendations, and then taking the factory owner’s report and saying, ‘Thank you very much—that’s fine.’”—[Official Report, Justice Committee, 5 May 2015; c 24.]

That is not fine. I agree with Flt Lt Jones. Members of the armed forces should be employees and have the same rights as employees.

I thank the Scottish Government again for looking at amending the bill to allow the deaths of service personnel in Scotland to fall within its scope. It is too early for me to thank the UK Government to redress the employment status of members of the UK armed forces, but I am very much encouraged by the discussions that are taking place between the two Governments. However, I do not yet share Margaret Mitchell’s optimism.

Modernising and reforming legislation that relates to these matters is our duty as elected representatives. A lot has already been achieved, as members can read in our report.

Families must remain at the centre of the legal process in dealing with fatal accident inquiries. I repeat what Roderick Campbell said. A fatal accident inquiry is what it is: it is an inquiry, not a trial. Let us ensure that members do not give the people of Scotland high expectations of what an FAI is. Understanding that legal process is a start. The Parliament needs to ensure that that process is effective, efficient and fair.

Photo of Johann Lamont Johann Lamont Labour

We all recognise the importance of the debate. I congratulate Patricia Ferguson in particular on all that she has done to drive the agenda. I do not think that the bill would be in front of us if that work and the work that she has done on behalf of families who have suffered as a consequence of an inadequate system of FAI and inadequate redress for families had not been done.

I want to contribute to the debate from the point of view of the dreadful, tragic experiences of some of my constituents. I do not intend to tell their stories, although they are powerful in themselves; I want to make comments that are drawn from their experiences. All those families lost loved ones in a health setting or while accessing health services, so I am sure that members can understand concerns that the view is held that the national health service should take its own approach to unexplained deaths.

The Scottish Parliament information centre briefing says that the purpose of adverse event reviews is

“to discover if any lessons for future practice can be learned.”

That is little comfort to those who seek justice for their loved ones. We must surely be concerned that, because NHS boards set their own policies in relation to adverse event reviews, practice varies from area to area. I urge the minister and the Scottish Government to look again at that matter. If there is a mandatory FAI for someone who died in prison, why is there no rigour or consistency for unexplained deaths in hospitals? We need clarification on whether and when a procurator fiscal would be involved in an NHS case. What would be the nature of any investigation? What is the expectation of the standard of the investigation by the prosecution services in such cases? There is deep dissatisfaction. As I have said, if there is a mandatory FAI for a child who died in care, what is to be done if there is alleged neglect by public services as a result of which a child who was not in care died? We can see that contradiction.

We need reassurance that “public interest” is not narrowly defined. The test should stretch to include NHS processes not being followed, pressures on staff, untrained staff and perhaps the impact of the use of bank or agency staff on the quality of the care that is received.

In one case involving a constituent of mine, procedures to check the patient were not followed. The reason was not investigated; it was simply established that procedures were not followed. There was a reassurance that procedures would change, but no explanation of how it would be ensured that they would be followed. I am sure that the minister can understand how unsatisfactory that must be for the family concerned.

It is critical that families are at the centre of the process. When people are struck by grief and they have lots of questions, we cannot overstate the importance of making real a commitment to involve families. We cannot simply say, “Yes, we involve families,” when their experience is different. I have had very varied reports on the effectiveness of family liaison.

We need to have honesty and compassion at the heart of the process. If there is not going to be an FAI, we need to know and understand that. The reasons must be explained and they must emerge from the evidence that has been investigated rather than there simply being a presumption about whether a particular case fits into a particular box. I know of a family who waited more than a year to be told that they were not getting an FAI but who felt very strongly that that decision had been made on day 1. If that is the case, we should at least be honest with people about it.

In the context of very significant cuts to prosecution services, we need reassurances that the role is real and that it will be properly resourced. It is not good enough for people to be told that they are at the centre of the process if, all the time, they feel that they are excluded from it and it may simply be that people have too much of a case load to do their jobs properly. We should not have an institutional presumption against fatal accident inquiries. Where a fatal accident inquiry is granted, it is important to ensure that families have real engagement, and legal aid is a particularly important issue if families are to be respected.

Although we can improve the FAI system and I accept that the bill goes some way towards doing that, we need to reflect on why families want a fatal accident inquiry in the first place. They want the death of their loved one to be taken seriously. They want their day in court, and for those who made decisions to be held to account. That is entirely reasonable. It may not be for the current bill, but we need to look at how we address that hunger for justice. People are currently left despairing and with a feeling that their loved one was unvalued. They are told, “That is not what an FAI is for.” If that is the case, what is? How do we address the need? What needs to change in the system to leave people feeling that they are being attended to?

It is a particular cruelty that families who yearn for justice—for a proper investigation—in order to respect the memory of those whom they have lost are driven down the civil route and seek compensation as a way of challenging injustice. That is cruel. First, it creates the impression that they are driven by financial interest and not by grief, and very often institutions then shut up shop and refuse to engage with families. People struggle to secure legal aid, and even where they secure it, if an out-of-court settlement is reached and a financial offer is made, even where someone does not accept responsibility, the person may have no choice but to accept, because if they do not, legal aid will be withdrawn. In that situation, they still do not have their day in court.

Loss and grief do not make people irrational or unreasonable, but sometimes the system appears to dismiss rather than understand. In my experience, doggedness, determination and a drive for justice have forced public agencies to move and to understand that there is something that needs to be investigated, but the test of justice should not be the determination of individual families. We should have a system that understands the importance of response.

It is easy to say why we cannot do something, but I believe that it is important to look at these questions differently. In the face of loss, people are entitled to ask, “Why?” and to be heard and answered, yet the current system does not allow that.

We support the bill, but it is not enough. I recognise the steps that have been taken, and—like many members, I am sure—I will be happy to work with the Government and any agency beyond this Parliament to address the brutal truth for too many families, which is that, in the face of the loss of their loved one, there appears to be nothing that the system can do.

We must strengthen the FAI system, but let us also consider how we address such questions of injustice, so that we do not simply tell people, “Things will be better in future,” but say, “The one you loved and lost deserved better,” and we understand why we ended up in the situation in the first place. I support the bill, but I hope that the minister will reassure members that he will take those very difficult issues far beyond the bill itself.

Photo of Willie Coffey Willie Coffey Scottish National Party

I am pleased to participate in the stage 1 debate on modernising the fatal accident inquiry legislation.

My experience of the system is in the context of the death of my constituent Alison Hume, who, as members might recall, died in the Galston mineshaft accident in 2008. The subsequent journey that her family has made—it is probably better to say “endured”—through the fatal accident inquiry process and the subsequent fire service inquiry, has not been a happy one. The reasonable expectation that an FAI and a fire service inquiry would deliver justice and much-needed closure has not been met.

It is in the light of that experience that I will consider the bill and offer comments that I hope will take us further along the road to justice. First, though, I recognise the efforts of the Scottish Government and members of the Justice Committee to begin to modernise the fatal accident inquiry process.

There will be a number of positive changes, many of which emanate from Lord Cullen’s review in 2009. The extension of categories of death that require an FAI is welcome, as is the discretion to hold FAls for residents of Scotland who die abroad. The latter extension will be a welcome change for families who have to suffer the loss of a loved one abroad. I note the committee’s plea for discretion to hold an FAI even if repatriation of the body is not possible.

It was also pleasing to hear the minister say that the Scottish Government will consider including deaths of service personnel in Scotland in the new legislation. That is welcome. It is right to seek such extensions and I am confident that they will be supported by the public.

The new obligation to respond to a sheriff’s recommendations is also welcome. It is a long-overdue step in improving the system. That there was no previous obligation to respond to FAI recommendations was a severe weakness, the unintended consequence of which was that serious criticism of individuals was largely ignored.

I note the proposal to permit FAls to be reopened if new evidence emerges that suggests that further consideration is required. That approach will be welcomed by many people as a further modernisation of our system to make it better serve the public interest.

I turn to Alison Hume’s family’s experience of the current FAI system, to consider whether the proposals will address their concerns. What we have to understand is that a family like Alison Hume’s are on a journey, and their destination is justice and final closure, whereas the end point in the FAI process is to establish the facts and cause of death and to identify defects in the system and reasonable precautions that might have been taken. The purpose is not to apportion blame or find fault.

As far as I can see, no powers are proposed that would ensure that recommendations are implemented or even require a response to severe criticism of individuals whom an inquiry has found wanting. Lord Cullen himself commented:

“an investigation of the circumstances of a death in an FAI may disclose grounds for criticism, from which a basis for alleging fault may be inferred.”

Although the new proposals will at least require responses to inquiry recommendations, the onward journey to securing justice still lies outwith the process. I would like to see a stronger approach taken to ensure that a sheriff’s recommendations are carried out and that any criticisms that a sheriff makes are responded to and dealt with.

Photo of Patricia Ferguson Patricia Ferguson Labour

I am grateful to the member for his comments and I sympathise entirely with him about the tragic constituency case that he is talking about. Will he therefore support the amendments on enforceability of sheriff’s recommendations that I intend to make at stage 2?

Photo of Willie Coffey Willie Coffey Scottish National Party

I am keen to hear what the minister will have to say on summing up. I understand the explanations that have been given by the minister and others about the difficulties in making such enforceability a requirement, but there must be a middle ground that might take us further in the direction that the member and I wish to go.

Those outcomes did not happen in the case of Alison Hume and her parents, Hugh and Margaret Cowan. The sheriff made serious criticisms of senior fire officers and their handling of Alison’s rescue. Sheriff Leslie commented that the evidence presented to him by two senior offers was

“bullish, if not arrogant, in their determination to justify the subservience of the need to carry out a rescue to the need to fulfil to the letter Strathclyde Fire and Rescue Service Brigade policy.”

No apology was ever offered until the former First Minister ordered a fire service inquiry. No disciplinary action was ever taken that we are aware of. The family has been left pretty much on their own in their pursuit of justice. Had it not been for the tireless and unfunded work carried out for them by HALO, a specialist trauma support service led by Diane Greenaway in Ayrshire, I shudder to think what the outcome would have been for this family.

There is much to commend in the work that has already been undertaken and the changes that will come in to help modernise this process. However, I ask my colleagues in the Scottish Government to consider any way of further strengthening the powers in relation to recommendations that are made by sheriffs and of requiring a response from any agency or individual who is the subject of criticism.

We need to place surviving families, who we should remember are also victims, at the heart of any new process that assists them on their journey to achieving justice rather than parting company with them at the end of the FAI process and leaving them to make that onward journey alone.

Photo of Alison McInnes Alison McInnes Liberal Democrat

Fatal accident inquiries provide an important opportunity to find out what went wrong and, ultimately, to learn in order that we can prevent something similar from happening again in the future. Although they are primarily carried out in the public interest, they also give families the opportunity to gain closure when a loved one is lost.

The bill will repeal the 1976 act and enact new provisions to govern the FAI system in Scotland. It has been a long time coming. Lord Cullen was invited to review the system in 2008 and he reported in 2009. I echo Johann Lamont’s tribute to Patricia Ferguson. If it was not for her determined and principled campaigning, we might still be waiting for the Government to address the reform. I congratulate Patricia Ferguson on her effort.

Not all of Lord Cullen’s recommendations have been taken up, but of those that have, three are particularly worthy of further serious deliberation at stage 2. Mandatory FAIs will be extended to cover children who die while in residential care, and to those who are subject to compulsory detention by a public authority. The Scottish Government will be responsible for publishing responses to sheriffs’ recommendations. I will touch on those issues in a few moments. The bill provides an updated definition of “legal custody” to include any death in police detention. It also requires a mandatory FAI when a child dies in secure accommodation.

Scottish Liberal Democrats welcome the changes because the state is ultimately responsible for those whose liberty has been taken from them. Because of our European convention on human rights obligations under article 2 on the right to life, it is a responsible step for any Government to examine deaths in such situations.

Because of that responsibility, and because the current review system lacks independence, we believe that further consideration should also be given to extending the requirement for a mandatory FAI to include the death of any person who is subject to compulsory detention by a public authority at the time of death, and that that should include people who are detained under mental health legislation. It was one of the most contentious areas that the committee explored during stage 1 and we were presented with many conflicting views from witnesses. The committee's stage 1 report asked the Government to consider further whether the bill should be extended in this way, with the proviso that the Lord Advocate could have discretion not to hold an FAI in particular circumstances—effectively flipping the current arrangements.

The Government has indicated that it feels that that would be disproportionate. Nevertheless, it acknowledges that the Mental Welfare Commission for Scotland believes that the current system for investigation of deaths of detained mental health patients is confusing and has gaps. Furthermore, the Scottish Government accepts that improvements should be made to how deaths in detention are investigated in practice, in order to ensure that the process is effective and timely, that it supports learning and that reviews are of consistent quality.

I challenge the Government's view that the bill is not the vehicle for such change, and I am grateful for the work of Dr Richard Simpson during the passage of the Mental Health (Scotland) Act 2015. To rely on that alone and, indeed, by the Government’s own admission, to wait up to three years for a review of the arrangements for investigating deaths in hospital, risks missing learning points from events in the interim and does the families who are affected a serious disservice. I will, therefore, consider further whether there is scope to amend the bill at stage 2 to give effect to a more robust system.

Similarly, the Government responded to Lord Cullen’s recommendation about looked-after children by saying that a national child death review system is currently being developed. The Government went on to explain that it is anticipated that the steering group that is in charge of that review will recommend that the deaths of all live-born children and young people up to their 18th birthday, and of care leavers who have been in receipt of aftercare or continuing care up to their 26th birthday and who are resident in Scotland, should be reviewed.

I ask the minister to justify taking that two-tier approach rather than including those deaths in the mandatory FAI system. In its submission to the Justice Committee, the centre for excellence for looked-after children in Scotland did not support making such deaths subject to mandatory FAI and said that there is no certainty that that would lead to improvements in services for looked-after children and those leaving care. The whole point of FAIs is to learn from the deaths and to improve matters. The lack of confidence in the system that was evidenced in CELCIS’s statement surely suggests that Lord Cullen’s recommendation on sheriffs’ recommendations needs to be reconsidered. That links back to Patricia Ferguson’s work.

Although the committee report noted that there are difficulties in placing duties on certain bodies to monitor the implementation of sheriffs’ recommendations, it also asked the Government to look at ways of ensuring that those recommendations are respected. I do not feel that the minister has sufficiently addressed that point this afternoon. I urge the minister to work very closely with Patricia Ferguson to improve the provisions at stage 2.

The bill goes quite some way towards putting the needs of families at the heart of the new system. An area of concern had been the requirement on families to submit a written request for the reason for not proceeding to an FAI, and it was suggested that the Government should amend the bill to remove that requirement. On reflection, I am content with the Government's response to that.

Parliament today has an opportunity to reform and modernise the system of FAIs in Scotland, and the Scottish Liberal Democrats will support the principles of the bill.

Photo of Gil Paterson Gil Paterson Scottish National Party

The bill is yet another example of the Scottish Government’s—and Parliament’s—bid to implement progressive policies for the benefit of the people of Scotland.

The reforms to the 1976 act will modernise the process and make it more effective, efficient and fair. Crucially, the bill will strengthen existing legislation to include cases of deaths abroad. I will say a bit more about that later.

The bill will surely help the process and help families to come to terms with the daunting and often upsetting process of an inquiry at perhaps the most devastating time in their lives, when they have to cope with a family bereavement due to a fatal accident or sudden death.

As we all know, legislation has to be updated and to keep moving with the times; in my opinion, after 40 years, the bill will do exactly that. It will minimise delays and prevent families from being caught up in red tape, as has happened so often in the past.

The Justice Committee has asked the Government to reflect, wherever it has scope to do so, on evidence that has been received on elements of the bill. This far-reaching bill will, for the first time, allow for discretionary FAIs to be held into deaths abroad of people from Scotland whose bodies are repatriated. I am pleased that positive dialogue between the Scottish and UK Governments has brought that about. An example of the kind of case that could have a discretionary FAI is the 2009 case of Blair Jordan, who died when he fell to his death aboard the tanker British Pioneer, off the coast of Japan. Despite six years of searching for answers, his parents still believe that they do not have the full picture of how Blair died, because no independent investigation has ever been carried out. However, the bill will mean that other parents might not have to go through a similar agonising struggle for answers regarding the circumstances surrounding the death of their child.

The bill will also make provision for discretionary FAIs for Scottish service personnel who die abroad, affording them the dignity and respect that they and their families are due and, indeed, deserve.

Those are just some examples of how the bill—which will, broadly, implement the recommendations of the Cullen review—will extend the categories of death for which it is mandatory to hold an FAI. Further, it will update the definition of “legal custody” to include the death of a person while they are detained by the police, and the death of a child in secure accommodation. The bill will also empower bereaved families to ask the Lord Advocate to give written reasons for a decision not to hold an FAI, which might help with their coming to terms with their situation. The bill will also help to minimise delays at an upsetting time for families by introducing a requirement to hold a preliminary hearing in advance of an FAI and by encouraging the sharing and agreeing of evidence in advance.

The bill will allow more freedom of choice about the location and venue for an FAI. It is also important that the bill will allow FAIs to be re-opened or reconvened if new evidence comes to light and will, in cases where the new evidence is substantial, permit a completely new inquiry to be held, which will remove the feeling of finality for families who feel that vital pieces of information have not been heard at an original inquiry.

To summarise this detailed and intricate bill in a short space of time is quite difficult, but I commend it in all its aspects as I believe that it will give greater access to justice for families who lose loved ones. Through the bill, the entire FAI process will become more accountable and efficient, and less harrowing for families who are going through a traumatic time. I am sure that I am not alone in believing that where legislation can do that, it should be done. I welcome the bill as a much-needed forward-thinking and modern piece of legislation that takes into account the terrible circumstances that families can find themselves in at times in their lives. Families who are looking for answers after the tragic death of a child will no longer face agonising delays waiting for answers, and the families of people who die abroad will not face mountains of red tape and delays as they struggle to cope with their bereavement.

Again, Scotland has shown that it can lead the way in modernising the justice system. After 40 years, the bill will create a fairer and more accountable process for the people of Scotland. I have no hesitation in backing this excellent bill and I fully expect it to have support from members of all political parties across the chamber. We in the Justice Committee have been taking evidence on the bill, which will bring FAIs into the 21st century and ease the pain of so many families throughout Scotland. I commend the bill whole-heartedly.

Photo of Jayne Baxter Jayne Baxter Labour

A discussion of fatal accident inquiries will inevitably be emotive. Families who have experienced the loss of a loved one often seek nothing more than an explanation for why that person died. We must ensure that public confidence in the system of FAIs is absolute, and that the systems surrounding FAIs are robust.

Lord Cullen’s report into the Super Puma tragedy was a significant milestone in the modernisation of the FAI process. It has taken a long time for his recommendations to be considered fully by Parliament, but at least we can now continue the process of modernising this important area.

To that end, my colleague Patricia Ferguson introduced a member’s bill. The Justice Committee recommended that her bill and the Scottish Government’s bill be considered in tandem, because there are many areas of overlap between the two, and the committee referred positively to many aspects of her bill. I am therefore very disappointed, for Patricia and for all those who worked with her on that bill, that she feels that she should withdraw it, although I completely understand her reasons for doing so.

Putting that to one side for the moment, we should look at the bill that is before us today, in which there is much to support. Introducing the ability to hold discretionary fatal accident inquiries into the deaths of Scottish people abroad when their bodies are repatriated to Scotland is a sensible change. Increasing flexibility with regard to the geographical locations for inquiries and the sorts of building that can accommodate them is also a positive step.

It is anomalous that FAIs cannot currently be reopened, and that a further inquiry cannot be held, when new and compelling evidence arises regarding a case, so it is sensible that that has been changed.

There are, however, some deficiencies in the bill. Lord Cullen recommended in his investigation into the Super Puma tragedy that relatives who are represented at an FAI should automatically receive legal aid without having to demonstrate that it is reasonable in the circumstances. That seems to be fair, in view of the circumstances from which fatal accident inquiries arise. It is understandable that families of deceased people will be unable to lead evidence in chief and to cross-examine witnesses in relation to the death of a loved one. That problem is often exacerbated by the circumstances in which many FAIs arise, given that complex health and safety regulations or technical details of machinery and workplace rules are often at the centre of such inquiries.

Although the Justice Committee’s report notes that FAIs are fact-finding processes and do not exist to establish guilt, I cannot support the conclusion that the committee has derived from that: namely, that deceased people’s families do not require automatic legal aid. I note that the Law Society of Scotland does not support the committee’s view in that respect either.

The milestone charter that has been proposed by the Crown Office, under which it will set out milestones at which it will give certain information to deceased people’s families, is a positive step. It is, however, insufficient. I have concerns that that will become a formulaic administrative task, with information tending towards generic responses to families. a number of whom have raised concerns over the years about why an FAI was not held after their loved one’s death. The Crown Office is resisting the introduction of a statutory right to request that it give reasons for a decision not to hold an inquiry.

However, it is clear that only a small number of families question such decisions each year, so the giving of reasons would therefore involve only a small administrative cost. In other contexts, the giving of reasons is a central plank of natural justice; it permits the public to understand the process that has been used to make a decision, and it increases confidence in Government systems. I do not think that the Crown Office has anything to hide in that context, so it should welcome the introduction of a statutory right for the families of deceased people who have not been granted FAIs to request reasons for that decision. As the Law Society has made clear, such a move would have

“minimal economic impact, but reinforce public confidence in Scotland’s system for investigation of apparently self-inflicted deaths.”

Under section 27 of the bill, a person to whom a recommendation of the sheriff is addressed must, if that person was a participant in the inquiry to which the recommendation relates, give the Scottish Courts and Tribunals Service a response in writing. The Law Society has rightly raised the issue of the lack of sanction for parties who fail to comply or to co-operate with that requirement, and the possibility of a concomitant protracted correspondence with such parties well after the conclusion of the inquiry. The bill should provide for a more robust approach in order to minimise the risk that such a situation will arise.

In summary, although it is disappointing that the Scottish Government has rejected the Justice Committee’s recommendation that Parliament consider Patricia Ferguson’s bill and the Scottish Government’s bill together, the bill that is before us takes the FAI system generally in the right direction. The issues with the bill that have been raised by others, and which I have mentioned in my speech today, must be considered

Photo of Bob Doris Bob Doris Scottish National Party

On 29 January 2009, Colin Love went for a swim beside a beautiful beach on Margarita Island in Venezuela. I have mentioned Colin previously in the chamber. He was a young man, and a keen traveller. He did not return alive to Scotland. He drowned that day. It turns out that the waters where he swam were a notorious drowning spot. There were no warning signs, no lifeguards and no guidance from the Foreign and Commonwealth Office that the area might be a dangerous destination for travellers. No dangers were raised by the travel firms involved in Colin’s carriage to Venezuela and the cruise that he was on.

There was also no fatal accident inquiry. Although I do not know whether, in that instance, there should have been one, I know that it was wrong that it was against the law to give the Lord Advocate discretion to have one if he or she saw fit.

I read about Colin’s death in the Evening Times. One of the journalists there, Caroline Wilson, has since reported on the inspirational story of Colin’s mum, Julie Love, on many occasions. Julie has campaigned tirelessly ever since Colin’s death to improve support for families who have lost loved ones overseas. That includes her campaign to allow fatal accident inquiries to be held into the deaths of Scots who die abroad—not on every occasion, but at the discretion of the Lord Advocate. Her campaign and the work of the charity Death Abroad—You’re Not Alone go far further than that, because they also focus on many ways of supporting families. If time allows, I will return to that.

I thank Caroline Wilson for a number of reasons. After reading Julie Love’s story, I arranged to meet Julie to see how I could be of assistance. In the six years since then, I have got to know her incredibly well and I am privileged to call her a friend. I initially worked with her years ago to submit evidence to the Cullen inquiry. More recently, I have supported her with her petition to the Public Petitions Committee. In both cases, she sought to extend the scope of FAIs to include the deaths of Scots overseas. Lord Cullen accepted the case that she made and, only this week, the Public Petitions Committee agreed to keep her petition open, awaiting the outcome of the Scottish Government’s Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. I am delighted that the Scottish Government, too, has accepted her proposals and that they are contained in the bill.

I understand why people get so dismayed at the time that these things take. It took six long years to get to this stage and it is understandable that people should have concerns about that. However, we are getting there and the system works—although sometimes, perhaps, it does not work as quickly as we would like it to.

I want to look in more detail at the bill’s provisions on discretionary FAIs into deaths overseas. The Lord Advocate needs to have discretion, independence and flexibility. However, how can he or she make an informed choice about when to use that discretion? When should there be post mortems when bodies are returned to Scotland? I know from meeting many families through Death Abroad—You’re Not Alone that a post mortem that has been carried out in Scotland can often tell a very different story from the post-mortem that was conducted in the country where the loved one passed away. Surely a significant contrast between one post mortem and another indicates that something is not quite right. There may be lots of provisions that can better inform the Lord Advocate, but I am trying to stress to the minister that the Lord Advocate can use such discretion only if he or she can bring an informed opinion to bear.

Will families of those who lose loved ones overseas be made aware of the provisions as a matter of course? There is a balance to be struck, because we do not want to distress families any more than is necessary. Tragedies happen—because of misadventure, because people have been unlucky or simply because of old age—and we do not want to distress families. However, where families think that something may be amiss, they must be at the centre when the Lord Advocate is informed. I ask for more information on that.

In cases where the body is not returned to Scotland, I agree that the Lord Advocate should have discretion. I know of a number of cases where bodies have not been not returned to Scotland because the families could not afford to bring them back. Indeed, some families could not save up to bring their loved one’s body back because it was costing them money to keep the body in storage overseas. A cremation was their only option, because of financial constraints. We need to bear that issue in mind.

I would like to widen the debate a little. At the start of my speech, I said that I had no idea whether Colin Love’s tragic death would have triggered a fatal accident inquiry if the bill had already been enacted. We had the bizarre situation in which we had to write to President Chávez in Venezuela to ask him to put lifeguards and signs on that beach. The travel sector did not cover itself in glory then, and I still think that it does not cover itself in glory in relation to such issues. Could a fatal accident inquiry in Colin Love’s case have driven wider change? It might have identified that the treatment of my constituent by Foreign and Commonwealth Office link workers was pretty dismal, to be frank, and that there is no consistent way of delivering messages about a death to loved ones and next of kin in Scotland when someone passes away overseas.

I have campaigned with Julie Love for a number of years for the Scottish Government, Police Scotland, Victim Support Scotland and other Scottish agencies to give better support to families whose loved ones have passed away overseas. Death Abroad—You’re Not Alone does a lot of voluntary work with goodwill, passion and commitment, but it needs more assistance. I accept that significant reserved matters are involved, but as a devolved Administration we have worked with the UK Government in partnership during the progress of the bill. Let us extend that. Let us work with Julie Love, Death Abroad—You’re Not Alone and all the partner agencies to ensure that it is not just fatal accident inquiries that we get right for people who lose loved ones overseas, but the whole system, because right now it is not working.

Photo of Margaret McDougall Margaret McDougall Labour

I have just joined the Justice Committee, so I was not part of the bill’s stage 1 scrutiny. I have listened with interest to the debate, and I have found it very informative to hear the differing views and concerns that have been raised.

I welcome the bill and support its general principles, and I see the need to update, modernise and clarify this aspect of the law. I believe that the scope of the bill could be increased, in line with some of the changes that were proposed in Patricia Ferguson’s Inquiries into Deaths (Scotland) Bill, which was introduced during stage 1 of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. It would have been useful to compare and contrast both those bills in one debate, but the Government has decided that we should do otherwise. Patricia Ferguson withdrew her bill this afternoon, which I know was not an easy decision for her, but I am pleased to hear that she will lodge amendments to the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill.

I want to focus on two areas where I feel the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill could be improved: the family’s role in the process; and issues relating to those detained under the Mental Health (Care and Treatment) (Scotland) Act 2003 that were raised at stage 1.

Having come to the process late, I will start by saying that I agree with the committee’s view that we need greater clarity and understanding around fatal accident inquiries not only with regard to how everything fits together but in respect of the family’s role in what can sometimes be a very difficult and complicated process. Right now, I feel that the bill does not have the balance right.

One of the central aims of Patricia Ferguson’s bill was to make the investigation process quicker and more transparent and—critically—to give families a more central role. The two bills had similar themes with regard to keeping families involved in the process; that said, I believe that the Inquiries into Deaths (Scotland) Bill gave strength with its proposal to introduce timescales in order to cut delays. After all, some people can wait for more than five years to find out whether an FAI will be held. I note that not all the evidence to the committee supported that idea, but I would argue that we need a duty to keep the family updated every step of the way.

Communication with regard to work preceding an FAI also needs to be strengthened, and the family should be kept updated on that process. In addition, I agree with the committee’s view that the Lord Advocate should be required to provide in writing the reasons why an inquiry is not to be held without the family having to request that information. I realise that that might be more time consuming, but we must remember that the family, who will be grieving, might be the only ones who have the interests of the deceased at heart.

I find it odd that the minister seems to have rejected, flat-out, calls for mandatory FAIs for those detained under the Mental Health (Care and Treatment) (Scotland) Act 2003, even though the system has been described as confusing and as containing gaps. In fact, I find the rejection odder still, given that the bill will update the definition of legal custody to cover any death that occurs in police detention. I understand that, in a lot of cases, an FAI will be unnecessary and unwanted, but, interestingly, the Mental Welfare Commission for Scotland has proposed a two-tier system in which deaths that are clearly from natural causes or which show no cause for concern are not investigated while all other deaths are.

I wonder whether the minister plans to look at that issue again, keeping in mind the committee’s recommendation that the Scottish Government revisit the issue of mandatory FAIs for those detained under the 2003 act and taking into account the Scottish Human Rights Commission’s evidence that mandatory FAIs might help to deal with some of the human rights concerns that were raised at stage 1. I urge the Scottish Government to improve the system during the bill’s later stages and not only to introduce a robust investigation system that closes the gaps with regard to deaths of those detained under the 2003 act but to rationalise and formalise the current process, as suggested by the Justice Committee.

As I said, I welcome the bill’s general principles and will support them, but I feel that certain aspects could be improved. I hope that the Scottish Government takes on board the feedback from both the committee and today’s debate, and I look forward to seeing the amendments that it lodges to tackle the issues that have been raised this afternoon.

Photo of Mike MacKenzie Mike MacKenzie Scottish National Party

As a layperson—that is, a non-lawyer who is not a member of the Justice Committee—I do not propose to talk much about the technicalities of the bill. Instead, my focus will be on the effect that it will have, or that I hope it will have, outwith the Parliament and outwith the courts in which our lawyers labour.

The bill attempts to address two concerns, which both have much merit. The first is the grief and anguish that is suffered by families and friends who have experienced bereavement in tragic circumstances. I have lost family and friends in that manner, so I know at first hand how important it is to have some understanding of how the tragedy occurred. For many, their faith sustains them in such circumstances and provides some help. For others, there is a loss of faith. For all, there is a need to try to understand and find some explanation that will allow them to make at least some sense of what is often an apparently senseless tragedy.

The desire to understand the world in which we live, with all its uncertainties, is a very human trait—perhaps the most human trait. Burns expresses it well in “To a Mouse” when he says,

“Still thou art blessed, compared wi’ me!

The present only toucheth thee:

But och! I backward cast my e’e

On prospects drear!

An’ forward, tho’ I canna see,

I guess an’ fear!”

Perhaps the need to understand becomes all the more urgent when we suffer bereavement because the need to protect our remaining loved ones is thrown into sharp focus when we suffer tragedy; perhaps it is because we are reminded of our own mortality and of how precious life is; or perhaps the reason is that the understanding of such tragedy is a necessary part of the grieving and the healing that we hope that affected individuals can achieve. Whatever the exact reasons, the need to understand is part of the essence of our humanity. I therefore commend the bill as a humane bill. As imperfect as any of our legislation might be, it is a step in the direction of greater humanity and, as such, should be welcomed.

There is a community need to understand such tragedies, too. I have lost three friends over the years from the small rural community in which I live—they were fishermen and were all young men in the prime of life—and I know how whole communities are affected when we experience such tragedies. I remember only too well the tangible pall that has hung over my community for many days on each sad occasion. The sombre talk is always about how this might have happened and why. At a community level, there is a need to understand and to try to make sense of what is apparently senseless.

Part of the intent of fatal accident inquiries has to be about achieving public understanding of such accidents, with a view to learning lessons so that we can avoid such tragedies. We have come a long way on better workplace health and safety practice over the period in which I have worked in the fishing and the construction industries, which are known to have high-risk aspects and in which more work needs to be done. I remember working practices that were common in my youth but which are quite unthinkable now. In fact, I shudder to think of the risks that we routinely took and thought nothing of—so much so that, in an entirely rational way, I regard myself as lucky to be alive.

There is no doubt in my mind that the better regard that we now have for human life and safety has been driven in no small part by lessons that we have learned from fatal accident inquiries. We should think a bit about that as we complain about regulation because, in our work to streamline regulation and to make it work better, we must not lose sight of everything that better regulation has done to lessen the possibility of tragedy and loss.

There are, no doubt, aspects of the bill that can be improved. I leave others to comment on that as the bill passes through Parliament. However, as I understand that it will replace and repeal an act that was passed in 1976, I can say that it is surely time that we updated our thinking. I am therefore pleased to support the general principles of the bill.

Photo of John Finnie John Finnie Independent

The bill is technical but, as Mike MacKenzie eloquently highlighted, no one in the debate has lost sight of its human element. We would do so at our cost—it is important to recognise that. The bill has been 40 years coming, and the minister talked about its needing to be effective, efficient and fair. I feel that, by and large, it is, and for that reason I will support its general principles.

I am grateful to all those who contributed to the committee’s stage 1 proceedings and appreciate that, for many, it cannot have been easy. We heard from families against corporate killers, for which Louise Taggart is a tireless worker. She told us of the tragic circumstances of her brother’s death.

Patricia Ferguson has been a very able contributor in getting us to where we are now and has voiced her frustration at the failure to act in a timely way on what seemed very apparent, which resulted in other lives being lost. I was looking forward to speaking in next week’s debate on her bill. Her bill had a lot to commend it, and I will return to elements of it later. I certainly commend her for her tireless work.

Members have talked about the notable exceptions in implementing Lord Cullen’s review, and I was sympathetic to the proposals that were made about extending mandatory FAIs to cover children who die in residential care, other than those who die in secure accommodation, as well as those who die while subject to compulsory detention by a public authority. We heard how the review process could, in some instances, cause families distress rather than reassure them, and we must appreciate those concerns. Importantly, though, I heard nothing to suggest that, when appropriate, an FAI would not be called.

The term “public interest” has been used a lot, and FAIs are undertaken in the public interest. However, at this time, only the PF can apply for a fatal accident inquiry. Like other members, I am pleased that the bill provides the opportunity to reopen an FAI if new evidence comes to light.

I have sat through an FAI, and it was not a pleasant event. It related to a death in custody, and various interests had to be served. There were various tensions, and I hope that lessons were learned from it.

I welcome the requirement that the Lord Advocate must provide written reasons for why an FAI should not be held.

On the proposals that relate to mental health legislation, our stage 1 report states:

The Committee asks the Scottish Government to further consider whether the Bill should be extended to include mandatory FAIs for both these categories of death”— that is, deaths of persons who were detained under mental health legislation and deaths of looked-after children. It is important to put down a marker that we asked for that.

My colleague Alison McInnes talked about flipping, and it is pivotal that we get feedback from the Lord Advocate on the relationship between the causes for holding FAIs and whether those FAIs are mandatory or discretionary. It is clear that the existing arrangements are not understood and, because of that, many families have felt disenfranchised.

We are told that families have a point of contact in the PF’s office so that they can raise any issues or concerns directly, and the committee set great store by what we heard from the Solicitor General about the milestone charter and the undertaking to meet families and provide regular updates. As we know, it is the not knowing that causes concern—there is never an instance of having too much information on a subject as important as this. I therefore welcome the minister’s assurance that those matters will be put on a statutory footing.

Paragraph 51 of the committee’s report states:

“The Committee considers that, in the interests of those who have lost a loved one in often tragic circumstances and who must navigate the system, it is imperative that there be greater clarity and understanding around FAIs, their purpose and how they relate to other death investigations and civil or criminal proceedings.”

That is important, and we have heard about the relationships between those.

Often in such instances—other members will have come across this—people ask who represents the family’s interests, and they do not understand the simple response that it is a PF acting in the public interest who represents the family’s interests. We heard compelling evidence from families against corporate killers about the implications of not having legal aid. It is often the main breadwinner of the family who is the subject of the fatality.

Paragraph 172 of our report says:

“We believe it is imperative that families, trade unions and staff associations are able to participate in a meaningful way in an FAI and that families are represented appropriately and are kept informed throughout the process.”

Trade unions play a pivotal role.

It is important that we make every effort to explain the relationship between the Health and Safety Executive, the air accidents investigation branch and the other bodies involved.

We are keen for the sheriff’s recommendations to be respected. When lives have been lost, lessons must be learned. The issue of delays is also very important.

I am pleased that the Scottish Government is keen to act on deaths abroad and not to have the requirement for the body to be repatriated. We also took reassurance on the issues around service personnel.

We are trying to achieve, at the moment and for the future, an understanding of where and when a death took place, the cause of that death, any reasonable precautions that could have been taken to avoid it, whether there were defects in workplace practice that contributed to it, and any other relevant factors.

I keep coming back to the point about delays. I understand Patricia Ferguson’s position, and I share the concern of other members that things could be lost, although I hope not. I will pay great attention to the amendments that Patricia Ferguson lodges next week, not least on how we take forward the actions that the sheriff determines.

A number of matters are reserved, but a number of them are devolved so, at the very least, we could start picking up on the things that we can do.

The Deputy Presiding Officer:

Before we move to the closing speeches, I invite all members who have taken part in the debate to join us for them.

Photo of Margaret McDougall Margaret McDougall Labour

I, too, welcome the opportunity to speak in this stage 1 debate on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. It is clear that the principle underpinning fatal accident inquiries is long-standing and still sound. They were introduced in 1895 but, as has been recognised by all of us in the chamber, there is a need to modernise and reform the system of fatal accident inquiries.

I am pleased that the Justice Committee has expressed support for the general principles of the bill at stage 1 and I, too, thank the convener, the clerks and the members of the committee for their contributions.

The bill is based on a number of sensible recommendations by Lord Cullen. I do not propose to consider them in detail, although I note with interest—Patricia Ferguson observed this—that his review started in 2008 and was completed expeditiously in 2009.

We know, and the Scottish Government has acknowledged, that FAIs are often beset by delays. One witness during the stage 1 scrutiny of the bill indicated that some families have had to wait for up to seven years simply to find out that an FAI is not to take place. In other instances, the commencement of an FAI has taken up to four years. The introduction of the bill is certainly overdue. I praise Patricia Ferguson for her spirited efforts in keeping this matter before the Parliament. She has metaphorically put a foot on the Scottish Government’s accelerator—not somewhere, I suspect, where a foot is often to be found, but all power to her for what she has achieved.

FAIs may be in the public interest but, as numerous members have observed, they also offer the deceased’s relatives crucial answers regarding the circumstances surrounding the death. It is deeply unfair to prolong that uncertainty unnecessarily, and the closure that such an inquiry could afford.

Two recent tragedies have crystallised the contradictions that are inherent in the current system governing FAIs in Scotland. It has been reported extensively in the press that the families of those killed in the Clutha pub helicopter disaster remain concerned that an FAI into the accident is not yet under way. Meanwhile, an inquiry into the circumstances surrounding the Glasgow bin lorry tragedy began just seven months after that accident took place.

We know that there may be good reasons for delaying the start of an inquiry in the case of the Clutha tragedy—I understand that the final report from the Air Accidents Investigation Branch is still awaited—but such a system is confusing and seemingly contradictory from the point of view of the deceased relatives, who will understandably be unfamiliar with the necessary protocols and procedures.

In the light of those considerations, I join other members in welcoming the proposed milestone charter. It combines flexibility with specific points for sharing information with families. The charter must be robust, and I sincerely hope that the Scottish Government and the Lord Advocate will prioritise communication with bereaved families and keep it under proactive review once the bill is passed.

An FAI is an inquisitorial process that seeks to establish the facts that are relevant to the circumstances of the death. That is what the inquiry exists to do but, in his review, Lord Cullen emphasised:

“It is true that an investigation of the circumstances of a death in an FAI may disclose grounds for criticism, from which a basis for alleging fault may be inferred. That may be unavoidable if the FAI is to fulfil its function of investigating the circumstances of the death.”

That means that no witness who is involved in an FAI can be compelled to answer any questions that might imply that they are guilty of a criminal offence. Arguably, that might limit the usefulness of such inquiries in some circumstances.

That tension has been reflected in the FAI into the Glasgow bin lorry tragedy. Prior to the FAI, the Lord Advocate decided not to prosecute the driver but, because of the possibility of a private prosecution, the driver has declined to answer a number of questions on the ground that he might incriminate himself. Therefore, there is a risk that a process that should be inquisitorial becomes conflated with an adversarial one.

Fatal accident inquiries are undertaken to establish the facts—the where, the when and the why; whether any precautions could have been taken, whether there were any defects in the system and whether there were any other contributory factors. To learn the necessary lessons, we need a holistic picture, not an incomplete one.

That brings me to a matter to which Mr Finnie referred in his speech. The Law Society of Scotland has expressed concern that Lord Cullen’s recommendation that relatives who are represented at an FAI should be entitled to receive legal aid without having to demonstrate that it is reasonable in the circumstances is omitted from the bill. The society rightly observes how daunting it is for those who attend a quasi-court occasion to be subjected to cross-examination. It takes the view that the expense of increasing the availability of legal representation would be minimal in relation to the entire legal aid budget.

The minister should consider that carefully. We really want an exhaustive examination of facts and we may be much more likely to get that if people understand what they are doing, where they fit into the process and what exactly they are expected to contribute.

Some members, not least Patricia Ferguson, have mentioned the important issue of the sheriff’s recommendations following the conclusion of an FAI. The Law Society has expressed concern about the absence of sanction in the event of non-compliance or non-co-operation with the sheriff’s recommendations. That is a justifiable concern and I hope that the minister will reflect on that.

The bill does much to modernise and reform fatal accident inquiries. Those changes are to be commended. They represent a positive development of our legal system in Scotland. However, I urge the minister to consider how FAIs interact with other court proceedings. That seems to be a somewhat unresolved tension.

Those comments notwithstanding, the bill is needed, it does a good job and my party will support it at decision time.

Photo of Elaine Murray Elaine Murray Labour

Fatal accident inquiries are inquiries into the circumstances of a death that are undertaken in the public interest to determine the time, place and cause of death, and to establish whether lessons can be learned to prevent similar fatalities in the future.

A number of very thoughtful speeches have been made. As we have heard, fatal accident inquiries are intended to be inquisitorial rather than adversarial, although they can be adversarial at times, and they do not attempt to allocate guilt in the criminal or civil sense. However, as Willie Coffey said, they can often be critical of people and, as Patricia Ferguson said, they can be highly adversarial, particularly in employee-versus-employer situations. As John Finnie said on the basis of his experience of an FAI into the death of a person kept in custody, they are not a pleasant experience. There is not a box marked “inquisitorial” for nice little inquiries and one marked “adversarial” for what happens in court. There is overlap between the two. The position is not as simple as it might at first seem to be.

Several members made interesting comments about what “the public interest” means and how it is defined. That is a fundamental question. We all blithely talk about things being in the public interest, but do we really understand what that means?

Photo of Christine Grahame Christine Grahame Scottish National Party

I will give a hypothetical example. Let us say that a young mother who is suffering from severe postnatal depression and who has not been given the appropriate support and help takes the life of her child. A crime will have been committed, but the Lord Advocate might take the view that it is not in the public interest to prosecute, and I think that we would all agree with that. That is an example of a situation in which it is not in the public interest to prosecute in criminal proceedings.

Photo of Elaine Murray Elaine Murray Labour

Indeed—and I think that there was a recent case of that type. However, an example does not provide a definition. In that case, the public interest is easier to understand, but there are other cases in which what the public interest is is less easy to understand. As Patricia Ferguson said, preventing fatalities is surely in the public interest—that is about learning the lessons of fatal accidents.

As has been mentioned, the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill is not the only bill that has been introduced to address Lord Cullen’s recommendations. Patricia Ferguson told us that she deliberately intended some of the proposals in her bill to be more radical than some of Lord Cullen’s recommendations. The Justice Committee recommended that the general principles of both bills be supported. Because of the time constraints that exist as we come to the end of a parliamentary session and the priority that is quite rightly given to Government bills—that has always been the case—Labour members of the committee were prepared to agree that the Government’s bill was the best vehicle to progress modernisation of the legislation on the fatal accident inquiry process in the few months of the session that we have left.

As we have heard, Patricia Ferguson has accepted that recommendation and withdrawn her bill with immediate effect. I would like to pay tribute to her for the work that she did on her bill. It must have been extremely difficult for her to decide to withdraw the bill after all the hard work that she and her staff and Patrick McGuire of Thompsons Solicitors had put into drafting and explaining it, especially given her experience with her constituents. She must have had a strong emotional desire to try to sort things out after going through that experience. I pay tribute to her for that. I am not quite sure what her decision means for Tuesday’s debate—I would have thought that it can no longer proceed, now that there is no bill to debate. I suppose that that will be a problem for the business managers on the Parliamentary Bureau to resolve.

I assure Patricia Ferguson that members of the committee will make their best efforts to fulfil her expectation that aspects of her bill will be progressed in the Government’s bill. I think that that commitment would probably be made across the chamber, although there is not uniform agreement on the areas in which amendments should be made to the Government’s bill. I look forward to the Government working with Patricia Ferguson to make the necessary amendments.

Many members, including Johann Lamont, Christian Allard and Mike MacKenzie, have spoken about the importance of the families of the deceased. We all agree that they must be central to the FAI process. Although the purpose of an FAI is to determine what lessons can be learned in the public interest, families must be kept informed about decisions, and decisions have to be made timeously. We must see an end to people waiting years just to be told that a fatal accident inquiry is not to be held. As Johann Lamont said, families have a desire for justice and their day in court; they seek explanations, not the sort of recompense that a civil action may result in. Often that is not what people want. Willie Coffey spoke about the journey of the family of his constituent Alison Hume and the lack of closure that the process had for them.

As we know, the bill does not take forward a number of Lord Cullen’s recommendations, such as the extension to include children who died in residential care other than secure accommodation and the deaths of people in compulsory detention by a public authority. A number of members asked questions about that.

Johann Lamont spoke about people who died in healthcare settings. Medical procedures may not have been followed, for example. I think that many of us have had cases—I certainly have—in which constituents have been unhappy about the fact that the health service investigates itself and there does not seem to be any independent arbiter. The deaths may be those of elderly people in healthcare settings, and families may have a suspicion that the elderly person was not considered important enough to receive some of the treatment that they might have received if they were younger.

Alison McInnes and Margaret McDougall made an important point about people who are detained under mental health legislation. Perhaps we should turn the process on its head and have mandatory inquiries in those circumstances but give the Lord Advocate discretion not to hold an inquiry when the cause of death is known—if it was by natural causes, for example—or there is no cause for concern. That was the Mental Welfare Commission for Scotland’s suggestion.

Photo of Elaine Murray Elaine Murray Labour

No, I am sorry. I have only a couple of minutes left. I would like to wrap up and refer to a few other things that have been said.

Johann Lamont, Jayne Baxter and Annabel Goldie in her summing up referred to the need for people who are represented at an FAI to be entitled to legal aid without having to show that that is necessary. From everything that we have heard today, the process is extremely complex. People will be cross-examined and will find themselves in unusual circumstances. I hope that the Government will look again at Lord Cullen’s recommendation about that.

Bob Doris spoke about his constituent Colin Love, who died in Venezuela. Colin Love’s mother, Julie Love, gave compelling evidence to the committee. I am pleased to hear that the bill will be amended at stage 2 to include deaths in respect of which it is not possible for the body to be repatriated. That will be welcomed by members across the chamber.

A number of members have spoken about the anomaly in relation to deaths of members of the armed forces serving in Scotland. We hope that that will be resolved.

John Finnie referred to the importance of including trade unions and staff associations. I also included that in my speech. That omission should be rectified at stage 2.

Jayne Baxter was probably the only member who welcomed the extension of the premises in which an FAI can be held. That will be of benefit to families and will enable them to attend fatal accident inquiries more easily. We look forward to hearing more about that.

To conclude, there is merit in both the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill and Patricia Ferguson’s bill. Many of us are looking forward to the amendment processes at stages 2 and 3. I hope that many of the points that members have made will be taken on board and progressed then. Meanwhile, we are happy to support the bill.

Photo of Paul Wheelhouse Paul Wheelhouse Scottish National Party

I have listened to the debate with great interest. When I made my opening speech, I was not aware that Patricia Ferguson had withdrawn her bill. I again pay tribute to her for the hard work that she put into that bill, and I commit to working with her on the areas that we have already discussed where we believe that we have common ground.

With that in mind, I want to respond to an intervention from Patricia Ferguson in which she raised the issue of potential reports to Parliament. I am willing to look at that proposal sympathetically. Obviously, we would want a system that was as streamlined as possible—perhaps one that looked at areas by exception, where recommendations had not been complied with. I am willing to entertain discussion with her on that point.

The Scottish Government’s Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill modernises the way in which fatal accident inquiries are handled in Scotland. I believe that it provides the legislative framework that is needed to implement the Cullen recommendations in order to build on the reforms that the Crown Office has already carried out by establishing the Scottish fatalities investigation unit, which now oversees death investigations in Scotland.

The bill contains several new initiatives, including greater flexibility for the location of FAIs, which Elaine Murray and others mentioned; discretionary FAIs into deaths abroad; and the possibility of reopening or rerunning an FAI if new evidence appears, which Willie Coffey and others mentioned. The bill will underpin the new charter for bereaved families, on which the Crown Office has consulted. I will come back to that shortly.

The proposals that require parties to whom sheriff’s recommendations are addressed to respond and indicate what they have done by way of implementation will foster compliance, although I reiterate the point that I have just made to Ms Ferguson. It is worth noting, however, that we understand that the response rate in the equivalent process under the coroners system in England and Wales, which takes a similar approach, is 100 per cent, and we anticipate a high response rate in Scotland as well. Most parties to whom sheriff’s recommendations are addressed are only too keen to demonstrate compliance with them. Indeed, many such parties attend the inquiries and are able to hear the evidence as it unfolds, and they may take action to address points before the inquiry concludes.

Photo of Nigel Don Nigel Don Scottish National Party

I have long been concerned about an extension of that point. A recommendation to a particular employer that it does something will obviously be worked on, but I see no mechanism whereby the industry in general is told about it. That will not be in the statute, but I wonder whether the Scottish Government can do something administratively to ensure that, where appropriate, recommendations are circulated more widely.

Photo of Paul Wheelhouse Paul Wheelhouse Scottish National Party

I thank the member for that point, which is a valid one. The party is required to report back to the Scottish Courts and Tribunals Service. If we deploy a reporting mechanism as discussed, it would flag up any anomalies where an industry or individual companies or representatives had not responded. However, I take the point. I also note that, under our proposals, it is within the sheriff’s powers to contact the appropriate regulator for the industry to make it aware of the concerns that have been raised in the inquiry and draw its attention to the recommendations that have been made.

As I said earlier, Lord Cullen, a former Lord President of the Court of Session, is an acknowledged expert on public inquiries. I say to those who believe that his recommendations did not go far enough that I hope that we will be able to set out how we can address any issues. It is clear that the Scottish Government’s legislative proposals, which closely follow Lord Cullen’s recommendations, were widely welcomed in the Scottish Government’s consultation last year.

I turn to address, as much as I can, the points that colleagues throughout the chamber raised during the debate. Christine Grahame set the scene very well in her speech on behalf of the Justice Committee. I thank the committee again for its deliberations, and also the clerks. On delays, the Scottish Government recognises the need for bereaved families to be kept informed of progress with death investigations and we firmly believe that the Crown Office’s charter—the “milestone charter”, as it has been dubbed—will provide reassurance and enhance public confidence in the system. Putting it on a statutory footing obviously gives it more clout.

I want to reassure members on the charter, as I know that some have not seen the detail of it yet. The Crown Office has circulated it to appropriate stakeholders who represent families. The feedback that we have received has broadly been positive, but we are taking on board some points, particularly on communication between the Crown and families and the need for different approaches. Rather than a one-size-fits-all approach, we should have an approach that is sensitive to individuals’ requirements so that communication is done in appropriate ways. For example, face-to-face meetings should not be required if they would be inappropriate.

I reiterate that it is proposed that the Crown Office will offer to meet bereaved families within three months of the date on which the death is reported to it, in order to give them an update on the progress of the death investigation and, we hope, an explanation if there is consideration of a criminal inquiry or some other hold-up in the process. That will make families aware of why that is the case and what to expect in terms of the potential duration of inquiries.

A number of members mentioned the Air Accidents Investigation Branch. As we know from certain recent inquiries, lengthy and technical considerations are required, so some degree of delay is inevitable, but that must not prevent us from communicating better with families. I take that point on board, and the milestone charter seeks to ensure that there is a better flow of information to families.

The Government is minded to support an amendment to the bill that will put the charter on a statutory basis, as Patricia Ferguson suggested. I acknowledge her work in raising the issue.

Photo of Patricia Ferguson Patricia Ferguson Labour

Does the minister accept that the issue is not just how quickly families are communicated with but how quickly the decision is made and then communicated to them?

Photo of Paul Wheelhouse Paul Wheelhouse Scottish National Party

I take the point that it is desirable that information should be given to families as early as possible. As I am sure Patricia Ferguson is aware, some things are outwith the control of the Crown Office or Police Scotland in that regard. However, we are keen that families should be kept as well informed as possible.

Johann Lamont referred to the public interest, as did other members. The Solicitor General for Scotland, in evidence to the Justice Committee, said:

“The family interest is part of the public interest”.—[Official Report, Justice Committee, 26 May 2015; c 17.]

I very much take the point and I reassure Johann Lamont that the family’s interest is included in the definition of “public interest”. The point has been well made and noted.

Photo of John Finnie John Finnie Independent

Does the minister accept that sometimes there is a tension when the family does not want something to be pursued that would be in the public interest?

Photo of Paul Wheelhouse Paul Wheelhouse Scottish National Party

I can see that there is the potential for the situation that John Finnie describes—I am not aware of specific cases, but I understand the theoretical possibility.

I welcome the support from all parties for our proposals on military personnel, and I thank UK ministers for giving their consent to the process.

Photo of Christine Grahame Christine Grahame Scottish National Party

Is there any timescale for movement on that issue?

Photo of Paul Wheelhouse Paul Wheelhouse Scottish National Party

That is not in the gift of the Scottish Government, but I understand that the UK Government is willing to move quickly and I anticipate that if the bill is enacted there will be a swift process to bring forward a section 104 order in the Parliament in London.

I have addressed Patricia Ferguson’s point about an annual return.

Elaine Murray made valid points about areas of agreement between us, although she was concerned that we had not made progress in relation to looked-after children and children in care. During evidence to the committee, Glasgow City Council said:

“the current measures are sufficient.”—[Official Report, Justice Committee, 12 May 2015; c 43.]

The witness from Glasgow City Council went on to support the Government’s contention that a mandatory FAI is not needed in every case of a death of a child in care. However, the bill, like Patricia Ferguson’s Inquiries into Deaths (Scotland) Bill, provides for a mandatory FAI into the death of child in secure accommodation.

I reassure members that the Scottish Government set up a child death review working group to explore current practice in reviewing child deaths in Scotland and to consider whether Scotland should introduce a national, collaborative, multi-agency system. The group is due to report in autumn, so we will not have long to wait for something definitive from the exercise.

I welcome the support from many members on the provisions in relation to deaths abroad. I think that there is broad agreement on the issue, so I will not say more. However, I acknowledge the point that Bob Doris made about the tragic circumstances of Julie Love’s son’s death. I acknowledge the strong contribution that Julie Love and her organisation have made to the debate. I also acknowledge Mr Doris’s input on the issue.

In response to a point that Margaret Mitchell made, I clarify that the provisions in the proposed section 104 order will cover the deaths of service personnel in Scotland and will not deal with the deaths of service personnel overseas, which are dealt with in the Coroners and Justice Act 2009.

Patricia Ferguson stressed the radical nature of her proposals. I hope that the milestone charter will be a strong step towards dealing with her main concerns, which are driven by her experience of helping families. I appreciate that we still have to have some discussion on that front.

There was considerable debate about the potentially adversarial nature of FAIs, and I acknowledge that inquiries can be more adversarial than we would like them to be. That is not to say that we should not do more to make them less adversarial, so that we can get to the truth without stoking up adversarial debate.

That also relates to the issue of legal aid, which a number of members raised. The provisions in the bill have been designed to ensure that legal aid might be provided in such circumstances, perhaps when the Crown does not propose to raise questions about something that is of interest to the family. As long as the eligibility criteria are met, legal aid can be used to provide support for family members in those circumstances.

Johann Lamont mentioned NHS deaths. Public interest covers the family’s interest but the Crown must consider the circumstances of death on a case-by-case basis, and the Lord Advocate may exercise discretion if there is public concern.

I am conscious of the time, Presiding Officer—

Photo of Tricia Marwick Tricia Marwick None

Yes. You need to wind up.

Photo of Paul Wheelhouse Paul Wheelhouse Scottish National Party

The debate has been fascinating and I welcome the broad support of members from across the chamber for the general principles of the bill. I acknowledge the work that Patricia Ferguson put into her member’s bill; I also acknowledge that she is willing to work with me, and I look forward to that. We wish to work constructively with Patricia Ferguson and other members, but we agree with the Justice Committee that the Government’s bill is the best vehicle for reform of fatal accident inquiries.

I commend the motion.