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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