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

Part of the debate – in the Scottish Parliament on 24th September 2015.

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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.