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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.