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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 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.