The next item of business is stage 3 proceedings on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. To deal with amendments, members should have the bill as amended at stage 2, which is SP Bill 63A; the marshalled list, which is SP Bill 63AML; and the groupings, which is SP Bill 63AG. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group. Members should now refer to the marshalled list of amendments.
Section 2—Mandatory inquiries
The amendments in this group relate to mandatory fatal accident inquiries for patients detained under mental health legislation. Such inquiries were introduced at stage 2 by amendments that were lodged by Margaret Mitchell and agreed to by the Justice Committee.
Margaret Mitchell’s amendments mean that there will be a mandatory fatal accident inquiry into every death of a person detained under mental health legislation, unless certain exceptions apply. The Scottish Government’s amendments in the group seek to reverse the effect of Margaret Mitchell’s amendments. Amendment 4 removes a redundant definition of “mental disorder”, which is not referred to in the bill and which should be removed whether or not the other amendments in the group are agreed to. The definition is no longer required as it is relevant only in relation to patients receiving treatment in hospital voluntarily.
Subsequent to stage 2, several bodies wrote to the Scottish Government and MSPs to express their opposition to Margaret Mitchell’s stage 2 amendments and offer their support for the reversal of those amendments at stage 3. That is what the Government’s amendments in the group seek to do.
“it is stigmatising to suggest mental health care and treatment should be subject to special scrutiny in relation to patient deaths”.
The Scottish Association for Mental Health, which is a charity that supports and campaigns for people with mental health problems, says that the stage 2 amendments
“are disproportionate and could add to the distress of bereaved families”.
The British Medical Association Scotland said:
“There are of course deaths which would benefit from further investigation, but it is more appropriate for the fiscal to make the decision than to have a mandatory FAI for all cases.”
The amendments were not supported by the Mental Welfare Commission for Scotland, which believed that the provision was disproportionate and would not achieve the aim of national learning. Penumbra and the mental health nursing forum Scotland also expressed their opposition.
I understand members’ concerns that we must ensure that proper care is given to those who are detained by the state due to their mental health problems, especially as they are some of the most vulnerable people in our society. However, I believe that the systems that are in place and the statutory review that will soon be undertaken best ensure that that will happen.
Currently, the Mental Welfare Commission for Scotland may undertake an investigation when it is alleged that a mental health patient may have been subject or exposed to ill-treatment, neglect, or some other deficiency in care or treatment.
The chief medical officer issued a formal circular to practitioners in November this year that made it mandatory for all deaths that occur while the person is subject to compulsory treatment under mental health legislation to be reported to the procurator fiscal. That ensures not only that an independent investigation can be carried out by the procurator fiscal to establish whether there is any issue of criminality but that, if there is no criminality and it is in the public interest, perhaps because of a suspicion of a deficiency in care or treatment, the Lord Advocate can hold a discretionary FAI. That demonstrates that, if no FAI is to be held, it does not mean that there has been no investigation of the death. Indeed, of the 5,500 death investigations that are carried out each year by the Crown Office and Procurator Fiscal Service, only 50 to 60 lead to an FAI. As for all the other deaths that are reported to the Crown Office, the circumstances have been explored by the procurator fiscal.
In addition, section 37 of the Mental Health (Scotland) Act 2015 requires a statutory review of the arrangements for investigating the death of a patient who was detained in hospital by virtue of the Mental Health (Care and Treatment) (Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995, or who was admitted voluntarily to hospital for the purpose of receiving treatment for a mental disorder. That provision was inserted by an amendment that was lodged by Dr Richard Simpson and supported unanimously by the Parliament. On the instruction of the Minister for Sport, Health Improvement and Mental Health, the Scottish Government this week laid an order commencing the provision, which will come into force on 24 December. Any change to FAIs in relation to such cases would pre-empt the review, which has been and will be widely welcomed by stakeholders. Indeed, in its stage 3 briefing to MSPs, the Mental Welfare Commission considers the review to be an
“important opportunity to create a system of investigation of non-natural deaths of psychiatric patients which is proportionate, streamlined and effective.”
Although not a primary consideration of the potential impact, it is important to note that, as detailed in the supplementary financial memorandum to the bill, mandatory FAIs for detained mental health patients would effectively double the number of FAIs held per year. It would mean that one out of every two FAIs would relate to a mental health patient, which would be disproportionate and would, in my view and in the view of stakeholders, cause unnecessary distress to the families of the deceased.
I suspect that Dr Elaine Murray’s amendments have been lodged to mitigate that impact, as they would mean that the Lord Advocate may decide that an inquiry is not to be held into a death, if satisfied that the death is from natural causes. Perhaps that is an acknowledgment by Dr Murray that the provision, via an exception, in Margaret Mitchell’s stage 2 amendments for the Lord Advocate not to hold a mandatory FAI if there has been a Mental Welfare Commission investigation is not enough. However, amendment 37, in Dr Murray’s name, could give rise to practical issues of interpretation and application. There is no definition of “natural causes”, and it also raises more questions than it answers. For example, on what basis would the Lord Advocate be satisfied that the death was from natural causes? How is the phrase “natural causes” to be defined for the purposes of the provision? The amendment could also lead to challenges, by judicial review, to the Lord Advocate’s decision not to hold an FAI if, for example, the family believed that the death was not from natural causes.
For those reasons, the Government wishes to reverse Margaret Mitchell’s stage 2 amendments in order to return the bill to the original policy in respect of the treatment of mental health patients. As Dr Murray’s amendments are based on Margaret Mitchell’s stage 2 amendments remaining in the bill, Dr Murray has nothing to gain by pressing her amendments if those provisions are removed.
For the reasons that I have outlined, the Government opposes the amendments lodged by Elaine Murray. As the Scottish Government’s position is supported by a broad range of mental health organisations that work on the front line and which represent mental health patients and those who work with and care for them—to recap, the Mental Welfare Commission for Scotland, the Royal College of Psychiatrists, BMA Scotland, Penumbra, the mental health nursing forum Scotland and Enable—I ask Elaine Murray not to move her amendments.
I move amendment 2.
At stage 2, the committee agreed by majority vote to amend the bill to require a mandatory fatal accident inquiry when a person who is in compulsory detention under the Mental Health (Care and Treatment) (Scotland) Act 2003 dies. The amendment accorded with Lord Cullen’s recommendations in his review and had been supported during his consultation by organisations such as Enable. I also note that the deaths of patients in compulsory detention in England and Wales are subject to a coroner’s inquest.
The bill as amended also allowed the Lord Advocate to make an exception where the circumstances of the death had been established through an investigation under section 11 of the 2003 act. However, it did not allow the Lord Advocate to make an exception where the death was from natural causes, which would not be subject to investigation under the 2003 act. Therefore, the death from natural causes of persons who had been compulsorily detained would always be subject to a mandatory inquiry without any exception, which could be unnecessary and distressing to friends and family.
Amendment 37 would enable the Lord Advocate to make an exception for deaths from natural causes. Two thirds of people who die in compulsory detention die of natural causes, and there should be no requirement to conduct an FAI into those deaths.
However, since the bill was amended, we have received representations from a number of professional organisations and, crucially, organisations that represent people with mental health conditions and their families that urge us to remove the provisions in question. The Mental Welfare Commission believes that the priority should be to establish the review of the arrangements for investigating the deaths of detained patients and that legislating at this stage would pre-empt the results of that review.
Carer representatives from the Royal College of Psychiatrists in Scotland advised that the delays involved in the FAI process would have a “significant and negative” impact on bereaved carers. Penumbra agrees with the views of the MWC and the Royal College of Psychiatrists. Enable made the original submission to Lord Cullen, but its briefing, which was sent to us yesterday, was ambiguous, so I contacted its policy officer to clarify its position. She advised me by email that Enable has accepted the Government’s position on the amendments, provided that there is a firm commitment that the review into the investigation of deaths of detained patients that is required by section 37 of the Mental Health (Scotland) Act 2015 is progressed as a matter of urgency. As the minister has said, that review is the result of an amendment that was lodged by my colleague Richard Simpson and unanimously supported by Parliament.
The Minister for Sport, Health Improvement and Mental Health wrote to the chair of the Health and Sport Committee, Duncan McNeil, earlier this week to advise that he intended to lay an order yesterday, which will come into force on 24 December and will clarify the deadline for the review’s completion. If the minister can confirm that that order has been laid and can advise us of the deadline for the review’s completion, I will consider that the stage 2 amendments have made an important contribution to the debate and to the acceleration of the review.
I confirm that I have laid that order. As Paul Wheelhouse said, it will come into effect on 24 December this year. The provision that the Parliament unanimously legislated for is that a review should take place within three years, but my clear commitment to the chamber is that that review should commence as soon as possible.
The reality is that, if amendment 3 is agreed to, adults in the mental health system who are detained on a compulsory basis will have fewer human rights than criminals in custody do. I remain of the view, which was originally stated by Enable, that deaths of people who are detained under the Mental Health (Care and Treatment) (Scotland) Act 2003 should be included in the mandatory category. Individuals who have been deprived of their liberty in the mental health system should have the same protection as those who are detained in a prison or a police cell.
Since we heard evidence on this matter at stage 1, things have moved on. At stage 1, the Scottish Human Rights Commission said that there was a gap in relation to the protection of the right to life for those in mental health detention. Indeed, the Mental Welfare Commission, while opposing mandatory inquiries, also commented that it thought that the current system was inadequate.
We have moved on, with the review under section 37 of the 2015 act, the order that Jamie Hepburn has referred to and the chief medical officer’s circular. In the light of all that and of all that has been said, we should be content to support the Government’s amendment.
A final point in relation to mandatory inquiries is that we should perhaps take account of the fact that, in the House of Commons, the Labour MP for Stockport is seeking to scrap the chief coroner’s current guidance that there should automatically be an inquest into the deaths of people who are subject to deprivation of liberty safeguards or are in state detention, because of the distress that that causes to many families of sufferers of dementia.
Margaret Mitchell’s stage 2 amendment that required a mandatory FAI in relation to the death of any patient who dies while receiving treatment for a mental disorder was further amended by my amendment to remove the reference to voluntary patients. As the minister said, the bill as it now stands provides for a mandatory FAI for any patient who dies while detained under the Mental Health (Care and Treatment) (Scotland) Act 2003, and it provides an opt-out for the Lord Advocate. In effect, that flipped the previous arrangements, whereby the Lord Advocate could, if he considered it appropriate, order an FAI. I supported that move at stage 2, as the Scottish Human Rights Commission had advised that steps needed to be taken to ensure that the systems of investigation met the requirements of article 2 of the ECHR and to remedy the current gaps and confusion in the system.
I hope that we can all agree that, when the state has responsibility for someone’s care and health, there should be a full and independent process to ascertain the reason for their death. Nevertheless, I acknowledge that there is disagreement over whether the FAI route is the right process, and I have further reflected on the evidence that was submitted by SAMH, the BMA, the Royal College of Psychiatrists and the Mental Welfare Commission, which all oppose the mandatory FAI approach, arguing that it is disproportionate, that it adds significantly to workload and, perhaps most compelling for me, that it risks stigmatisation and would increase the distress of bereaved families.
On balance, I have concluded that there is a more proportionate and less distressing way to proceed that involves reform of the whole system of notifications and investigation instead of focusing solely on FAIs. I will, therefore, support the Government’s amendments, which will remove the provision. However, today, when Jeremy Hunt is at Westminster saying that he is profoundly shocked by the failure to investigate the unexpected deaths of mental health patients in a particular national health service trust in England, we cannot be complacent. Therefore, in supporting the amendments, I urge the minister to lose no time in proceeding with the review that was agreed to in the Mental Health (Scotland) Act 2015, and I ask him to pay particular heed to the view of SAMH that there is a particular issue relating to suicides that happen while people are in care.
I supported Margaret Mitchell’s position at stage 2. However, like other members, particularly Elaine Murray and Alison McInnes, I have heard compelling evidence not only from the practitioners but from those who support the people who are in these circumstances. Therefore, I shall support the Government’s position today.
The chief medical officer’s circular and the Crown Office guidance on reporting deaths to the procurator fiscal have been issued so that the deaths of detained patients can be independently investigated in accordance with article 2 of the ECHR. That strengthens the realisation in Scotland of the right to life that is enshrined in that article. The longstanding Scottish tradition of Crown discretion is well suited to the requirements of European law. Nevertheless, I take on board Alison McInnes’s point, and the minister has indicated that the review that is required by section 37 of the Mental Health (Scotland) Act 2015 will look at the matter more comprehensively.
The question is, that amendment 2 be agreed to. Are we agreed?
There will be a division. As it is the first division of the stage and this afternoon, I will suspend the meeting for five minutes. Thereafter, there will be a 30-second division.
15:17 Meeting suspended.
15:22 On resuming—
We proceed with the division on amendment 2.
The result of the division is: For 94, Against 14, Abstentions 0.
Amendment 3 agreed to.
Section 3—Mandatory inquiries: exceptions
Amendment 36 not moved.
Amendment 5 moved—[Paul Wheelhouse]—and agreed to.
Amendments 37 and 38 not moved.
Amendment 6 moved—[Paul Wheelhouse]—and agreed to.
Amendment 39 not moved.
Section 4—Discretionary inquiries
Amendment 7 moved—[Paul Wheelhouse]—and agreed to.
Section 8—Reasons for decision not to hold an inquiry
Amendment 8 moved—[Paul Wheelhouse]—and agreed to.
Section 10—Persons who may participate in the inquiry
That brings us to group 2, which is on the participation of trade unions and similar bodies in inquiries. Amendment 9, in the name of the minister, is grouped with amendments 10 to 12.
The Scottish Government was happy to accept an amendment lodged at stage 2 by Elaine Murray that gives a statutory right of participation at a fatal accident inquiry to a trade union or staff association, although I said that we would consider whether the wording could be improved at stage 3. We have now held those discussions with Dr Murray and I am pleased to say that she indicated that she was content with the proposed amendments.
Dr Murray explained that her amendment was intended to cover sectors in which trade union membership was not permitted by law, such as the police. However, the term “staff association” does not have a recognised legal meaning. It could arguably cover the likes of internal equality networks or even sports or social associations. Consideration has been given to alternative wording that would deliver the policy intention.
Amendments 10 and 12 will cover bodies that are similar to trade unions—for example, in sectors where trade union membership is prohibited—and makes it clear that the body concerned must represent the interests of workers in connection with the employment or occupation during which the accident resulting in the death happened. That is intended to exclude bodies of workers that have a purely social function—for example, a sports association—and bodies that represent workers’ interests more generally, such as political bodies.
Amendment 10 also makes it clear that the requirement that the representation of workers’ interests must be
“in connection with the employment or occupation concerned” also applies to the trade union.
Amendment 9 makes it clear that participation should be for a trade union or similar body itself and not for a representative. Amendment 11 is consequential.
I hope that Elaine Murray and other members will welcome those amendments, which clarify and improve on the original stage 2 amendment.
I move amendment 9.
As the minister said, at stage 2, I introduced an amendment into section 10 to give a trade union or staff association representative of a person killed in the course of their employment the statutory right to participate in a fatal accident inquiry into the person’s death. The bill gives that statutory right to the person’s employer and to health and safety inspectors, and I felt that it was important that the participation of trade union or staff association representatives should be given parity, not least for the support that they can provide to the deceased’s family.
The amendment was accepted unanimously, but I recognised that the wording probably needed tidying up. The definition of “staff association” caused some problems, but I was keen that, if a police officer, for example, died in the course of their employment—which, sadly, happens more often in that profession than in most—the Scottish Police Federation or the Association of Scottish Police Superintendents should have equal rights to attend to the equivalent trade unions.
The amendments in group 2 revise the wording while retaining the policy intention of my stage 2 amendment and, therefore, we are happy to support them.
My stage 2 amendment, which was agreed to by the Justice Committee, sought to ensure that one of the key findings of Lord Cullen’s report on FAIs would be implemented—namely, that civil legal aid would be available to the families of the bereaved to allow them to be represented at an FAI.
As the Parliament is aware, the bill has its genesis in the review of FAIs that was undertaken by Lord Cullen at the request of the Scottish Government. Lord Cullen made two particularly important points in relation to legal aid for families who wish to participate in FAIs. The first was that relatives often believe that the procurator fiscal attends an FAI to look after their interests if they are unrepresented, but the Crown Office and Procurator Fiscal Service’s own guidance makes it clear that that is not the case and indicates that the role of the procurator fiscal is to represent to the court any matter that affects the public interest, not that of the bereaved families. Indeed, the procurator fiscal is perfectly entitled to decline to put questions on behalf of the families.
The second point that Lord Cullen made was that FAIs take place regardless of whether relatives consent to them. If relatives want to participate, their ability to do so without representation is limited, and they are at a considerable disadvantage in comparison with other parties. Indeed, the Faculty of Advocates stated in evidence to Lord Cullen that
“it is impossible for relatives to participate effectively in important inquiries without legal representation”, while Sheriff J P Murphy observed that the relatives
“should not be expected to be capable of self-representation in the traumatic situation of an FAI. I have never seen a lay person do it adequately.”
My stage 2 amendment had the effect of disapplying the normal financial conditions and thresholds, and it required ministers to come forward with a special scheme of conditions for relatives who were involved in FAIs. I was deliberately not prescriptive about what those regulations should be but instead left to ministers the job of drawing up a scheme that would implement those intentions. I did so in the context of a presumption that legal aid would be available and that families would be able to be represented throughout the process and would not find that the cash had run out part way through an FAI, as has happened.
Amendment 13 would have the impact of removing the entire provision, which would mean that bereaved families would not have access to legal aid. It seems to me that that is a basic principle, and it is one that I hope Parliament will uphold by rejecting amendment 13.
Amendment 1 seeks to ensure that when ministers bring forward the scheme for legal aid that was agreed to at stage 2, as I hope they will, they are required to do so by affirmative resolution. That would ensure that Parliament had the opportunity to consider whether the provisions of the Scottish Government’s scheme fulfilled Parliament’s objectives.
I move amendment 1.
As Patricia Ferguson said, this group of amendments relates to the provision for legal aid for FAIs. Patricia Ferguson’s amendment 1 is relevant only if her stage 2 amendment on legal aid remains part of the bill and, for reasons that I will explain, amendment 13 will reverse that amendment.
The bill as amended at stage 2 now provides for the establishment of a family charter, which will, as one of its effects, formalise the engagement between the bereaved family and the Crown Office and Procurator Fiscal Service. Among the issues that the charter will cover, the procurator fiscal will engage with the family on matters where they seek clarity on the circumstances of the death of their loved one from the FAI to inform the Crown’s questions of witnesses, which will seek to serve the public interest, as Patricia Ferguson said.
At present, if the bereaved family wish to ask questions that the fiscal cannot ask in the public interest, they may be entitled to legal aid. They will typically qualify for legal aid if they meet the eligibility criteria. The key tests for agreeing legal aid are about probable cause and reasonableness. Probable cause will always be satisfied where a relative has a right to participate in a fatal accident inquiry, so the main question for the Scottish Legal Aid Board will often be about reasonableness.
To give a real-life example of the reasonableness test in action, I am aware of an example in which a relative was granted legal aid to explore specific mental health issues of the deceased that had been raised prior to that person’s death. I make it clear that the reasonableness test will always be satisfied where a relative of the person requiring legal aid has died in prison.
Civil legal aid has generous financial eligibility thresholds to ensure that anyone who is eligible will be granted legal aid. Instead of controlling spend by restricting the types of cases that are eligible or capping the expenditure in any given year, tests of reasonableness and probable cause are applied as well as financial eligibility to ensure that public funds are appropriately directed.
Because of the very nature of what a fatal accident inquiry is, is it not reasonable that both the family and the Scottish Legal Aid Board may have no idea about the facts that may be adduced in the course of the inquiry, so the family may be at a genuine disadvantage if it is ruled that they are ineligible for legal aid?
The point that I was making, which I will come to in more depth, was that, if there was clearly a disagreement on the line of questioning that the Crown might want to take and what the family might want to explore, perhaps because that was not relevant to the public interest, there would be a case to be made on probable cause and reasonableness. In practice, bereaved relatives already get access to legal aid for fatal accident inquiries. The point that I am making is that we do not need a provision in the bill to enable legal aid to be made available when there is probable cause and reasonableness. That already happens under the current regulations.
The provisions as they stand allow us to ensure that legal aid is available for a wide range of matters and that help is given where it is needed most. That contrasts with the approach in England and Wales, where cuts to legal aid mean that there is no longer access to legal help with specific types of family, medical, housing and welfare benefits problems. In certain cases, people even have to provide evidence that they or their children have been victims of domestic abuse or violence in order to access legal aid. We are trying to maintain the breadth of legal aid and the principles that underpin it.
Removing the tests for one type of proceeding—in this case, fatal accident inquiries—would, more importantly, undermine the general approach to and principles of legal aid in Scotland: that is, the principles of probable cause and reasonableness. If amendment 13 is not passed, that would in effect mean virtually automatic legal aid for fatal accident inquiries. It is simply not necessary for all parties to fatal accident inquiries to be legally represented. I take on board Annabel Goldie’s point about something developing during an inquiry, but the procurator fiscal will obviously have explored with the family as part of the family charter what areas the family is keen to explore and what their concerns are about the inquiry prior to going in. That is an innovation as part of the bill. It is simply not necessary for all parties to FAIs to be legally represented, as the procurator fiscal already has a duty to bring forward evidence about the circumstances of the death.
Does the minister accept that many people in our constituencies feel that they are very poorly served by the fatal accident inquiry system and are entirely excluded, and that they have no confidence in the prosecution service? The minister is saying that we do not have to look at that and everything is okay. In fact, the real problem is that people are not able to engage when they have concerns about how their rights are being represented. Surely Patricia Ferguson’s amendment addresses that.
I listened to Johann Lamont’s point. I merely point out that we have a bill on the back of Lord Cullen’s review to reform the fatal accident inquiry process and we have the innovation of the milestone charter, or family charter as it is dubbed for the purposes of the bill, which was brought about by the line of questioning that Patricia Ferguson took and the Solicitor General’s thoughts on the matter. That significantly moves us forward in making the fatal accident inquiry process much more engaged with families. There is a formal process in which families will engage and be communicated with throughout to ensure that they are part of the process and feel that their points are being addressed by the procurator fiscal and the inquiry process.
I hope that, with the passage of time, Ms Lamont will see that the system is being reformed to make it more family friendly. The main purpose of an FAI is to establish the facts around a death and to prevent further deaths from happening—clearly, we all share that aim. I reassure the member that the Crown Office and Procurator Fiscal Service is doing everything that it can to make the process more aligned with families’ interests and to consult families on the line of questioning.
The change that Patricia Ferguson has proposed would be at the expense of the fundamental principles of the FAI and legal aid systems, and it would force us to look at alternative controls on legal aid. However, the issue is not just about the effect on legal aid. One of the key aims of the bill, which I hope is shared across the chamber, is to make FAIs less adversarial, but funding legal representation to raise concerns and questions that would be similar to those covered by the procurator fiscal in the public interest would achieve the exact opposite in some circumstances. If all parties at FAIs were legally represented, regardless of need, inquiries would inevitably become more adversarial, longer and more expensive. The key consideration is the potential for more adversarial and lengthier FAIs.
Those concerns were highlighted in consultation responses by those who are involved in the running of FAIs. The Sheriffs Association said:
“It is only where there is a conflict of interest between the procurator fiscal and the next of kin that there should be a necessity for separate representation. That is a matter that should be explored and determined fully by SLAB before legal aid is granted.”
Lord Gill, in his consultation response while serving as Lord President, argued that increased legal aid for families of the deceased would lead to questions at FAIs becoming about blame, which is for civil litigation, instead of about ascertaining the circumstances and causes of death. He also stated:
“The allowance of legal aid would negate the priorities of economy and expeditiousness that the proposals”— that is, of the bill—
Only yesterday, Lord Carloway said in a letter to me:
“There is no substantial reason why those seeking legal aid for representation at an FAI should be subject to less arduous financial tests than other applicants in other situations. It is difficult to justify a more lenient regime for the former than for, say, a victim of a road traffic accident who has suffered injuries of maximum severity.”
He went on:
“Should family members be routinely represented, the inquiry risks losing its essential inquisitorial character and acquiring an unhelpful and inappropriate, and quite possibly prolonged, adversarial focus.”
I will, Presiding Officer.
I believe that our goal of making FAIs less adversarial is the right one. We should do what we can to avoid making FAIs more adversarial and thereby creating greater difficulty in finding the truth with the aim of preventing a recurrence of a death. In doing so, it is important to preserve the principles that underpin the legal aid system. I urge members to support amendment 13 and reject amendment 1.
Like the majority of members of the Justice Committee, I supported the provisions on legal aid for bereaved families in fatal accident inquiries under the terms of Patricia Ferguson’s amendment 60 at stage 2, which I considered to be proportionate and balanced. The key point is that the Crown Office and Procurator Fiscal Service represents the public interest and not specifically the interests of relatives. It is therefore only right and fair that legal aid should be available to ensure that those interests are represented. Further, the measure was another of Lord Cullen’s recommendations that was not included in the bill. If the Government uses its parliamentary majority to remove the provision, that will further fuel the view that the grave concerns about the absence of checks and balances in the decision making of the Scottish National Party majority Government are well founded.
I have listened to the debate with some interest. One matter that still puzzles me slightly about the Opposition’s approach is that we had Lord Cullen before the Justice Committee at stage 1 and nobody asked him a question on the issue. I accept that the issue arose at stage 2, but he was not asked about it then. If it was an important issue that the Government had not accepted in Lord Cullen’s report, one would have anticipated that Opposition members would have wanted to question him on it, but that did not happen.
Patricia Ferguson rightly referred to the bits in Lord Cullen’s report that touch on the matter. As she pointed out, Lord Cullen stated:
“the procurator fiscal is independent of any party, including the relatives, and should not be regarded as their representative at the FAI. He or she is entitled to decline to put questions for the relatives.”
However, Patricia Ferguson did not point out that Lord Cullen went on to say:
“I note that the COPFS state in their guidance that, where necessary, the procurator fiscal will indicate to the relatives ‘that it is unlikely that [he or she] will be able adequately to represent their interest and concerns at the Inquiry and that separate representation is considered appropriate’”.
That is the key. The minister also referred to Lord Carloway’s comments about the number of times when the interests of the family and the procurator fiscal do not diverge. Clearly, when they do diverge there should be an opportunity to obtain legal aid, but I hope that the milestone charter means that situations in which people feel that they have been deprived of that opportunity will be few and far between.
I am slightly confused by what Roderick Campbell said. The whole point of having stage 2 is to enable matters to be brought up that have not been dealt with at stage 1. I do not know whether Mr Campbell is arguing that we should not have stage 2 at all.
Mr Campbell read out a passage from Lord Cullen’s very good report on FAIs, which I will read again, for the avoidance of doubt. He quoted from guidance that provides that, in a case in which the procurator fiscal cannot represent the family, they will indicate
“‘that it is unlikely that [he or she] will be able adequately to represent their interest and concerns at the Inquiry and that separate representation is considered appropriate’.”
Yes, and we need the money to pay for that. Families in such a situation will not always have resources to fall back on to enable them to secure representation.
In all this, it seems strange to me that the qualifications for legal aid for an FAI are currently the same as they are for any civil litigation, which means that probable cause must be identified. It seems odd to me to apply the concept of probable cause to an FAI, because, as the minister says, an FAI is not litigation between parties. The approach seems bizarre.
The minister mentioned the charter, which I very much welcome. If the point of having the charter is that the minister accepts that families need more information and require to be kept informed, surely families must also have the right to be considered to have an interest in an FAI—an interest that will be meaningful only if they are represented.
I accept the member’s point about the need for families to be represented where the procurator fiscal is perhaps taking an approach that is different from the approach that they want to be taken. When probable cause and reasonableness kick in, families who can demonstrate a relevant interest in the FAI—as opposed to people who do not have an interest—can be represented in the inquiry. I gave the example of someone whose relative dies in prison, who would very likely get legal aid, because of the difficulties that are faced by someone who loses a loved one in such a situation. That is an example of how probable cause is demonstrated and the reasonableness test is applied.
I think that I am right in saying that, after a death in custody, civil legal aid is automatically granted to enable the family to be represented at a fatal accident inquiry. I will stand corrected if I am not right about that.
The point is that a family who want to be represented at a fatal accident inquiry will not necessarily know that there is an issue about probable cause until they are some way into the FAI process. How do we cope with that? Is the minister saying that we will halt fatal accident inquiries willy-nilly to allow the Scottish Legal Aid Board to reconsider a case before an FAI resumes?
The charter does not provide for the procurator fiscal to represent the family. It makes it easier for the family to get information during the process, but it does not allow the procurator fiscal to act on their behalf. At the moment and in future, the procurator fiscal will represent the public interest, which is a different thing.
I am grateful to the member for giving way.
In many cases, there might be a good alignment between the public interest and the interests of the family. Where that is not the case, there is a very high chance—subject to the financial eligibility test, as with other forms of legal aid—that the relatives will have access to legal aid to enable them to take forward a line of questioning that might not be taken forward by the procurator fiscal.
I reassure the member that the arrangements that already apply will be strengthened by the family charter. There is a process to ensure that the procurator fiscal discusses the kinds of questions that the families would like to be considered.
Thank you, Presiding Officer. I am close to finishing.
I know that the minister is trying to be helpful, but it will not work with the process. Family members will not know that there will be a difference between their interest and the public interest until they see the line of questioning.
None of us wants to see FAIs being adversarial. In my view—I am not quoting from anyone here—FAIs are likely to be more adversarial if people do not have the right to representation. It stands to reason. It is a basic principle that bereaved family members who are having to go through the trauma of a fatal accident inquiry should be assisted by the state in doing so.
I press amendment 1.
The result of the division is: For 61, Against 46, Abstentions 0.
Amendment 13 agreed to.
Section 26—Dissemination of the sheriff’s determination
The amendments are technical Government amendments on the sheriff’s determination and recommendations at the conclusion of a fatal accident inquiry. Amendment 14 removes the requirement for the Scottish Courts and Tribunals Service to provide a copy of a sheriff’s determination to any person who pays the specified fee. That is no longer required because all determinations will be published under section 26(1)(a) by the Scottish Courts and Tribunals Service, so interested persons will be able to obtain the determinations online. The SCTS can provide printouts or alternative formats for cases in which an interested person cannot access the website in order to fulfil its Equality Act 2010 duties.
Amendments 15 and 16 tidy up a minor drafting issue that was identified in the new section 27A that was inserted at stage 2 by an amendment from Patricia Ferguson with Scottish Government support. Ms Ferguson’s amendment placed a duty on Scottish ministers to publish an annual report on the number of responses to sheriff’s recommendations that are made in the determination at the conclusion of an FAI during a financial year. The amendments remove some potentially confusing words to make it clear that responses received in the eight-week period following the end of the financial year are to be included in the annual report for that financial year. That does not alter the policy that was proposed by Patricia Ferguson and I have shared the amendments with her as a courtesy.
Amendment 17 relates to what happens when the Lord Advocate decides that further proceedings should be initiated either by reopening an inquiry or, exceptionally, by holding a fresh inquiry. In the interests of transparency, the bill does not provide for the withdrawal of the original determination from publication. It should, however, be made clear by means of the publication of a notice that the original determination has been set aside. Amendment 17 ensures that, at the point that the sheriff makes an order for further proceedings, the Scottish Courts and Tribunals Service must publish a notice explaining that the determination has been set aside. An interested person going to the SCTS website will therefore see all of the relevant information together.
Amendments 18 and 19 are technical amendments to section 33 relating to further inquiry proceedings. They relate to where a recommendation was made in the original determination by the sheriff but a recommendation in the same terms is not made in the new determination. In such circumstances, the SCTS must withdraw from publication responses to such recommendations and any notices published in relation to them.
Amendment 19 requires the SCTS to withdraw from publication notices that state that part of a response to a recommendation has been withheld from publication, in addition to those published that state that the whole of a response has been withheld or that no response was given. Amendment 18 is consequential to amendment 19.
I move amendment 14.
Amendment 14 agreed to.
Amendments 15 and 16 moved—[Paul Wheelhouse]—and agreed to.
Section 30—Initiating further proceedings
Amendment 17 moved—[Paul Wheelhouse]—and agreed to.
Section 33—Further inquiry proceedings: compliance with recommendations
Amendments 18 and 19 moved—[Paul Wheelhouse]—and agreed to.
Section 34—Power to regulate procedure etc
Amendments 20 to 35 are highly technical in nature.
Amendments 21 and 22, together with amendment 34, are the key substantive amendments in this group. They add section 34(6) and schedule 1 to the list of sections that will come into force the day after royal assent. That is to permit the Scottish Civil Justice Council to begin work early in the new year on drafting rules for FAIs to replace the Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977. The SCJC currently has no powers to do so.
Amendment 34 removes paragraph 2 of schedule 1. That removes the transitional arrangement for the Scottish ministers to make regulations for FAI rules before the SCJC takes on the responsibility. Amendment 20 is consequential to amendment 34.
Amendment 31 inserts a new paragraph into section 4(3) of the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 to make it clear that the Court of Session’s power to make inquiry rules is not prejudiced by the SCJC’s specific statutory function of preparing draft FAI rules.
Amendments 23 to 30, 32, 33 and 35 are technical remodelling of existing provisions, which do not have any substantive effect. They are needed because the Scottish Civil Justice Council will now take on the role of drafting FAI rules before it takes on the role of drafting rules for the Scottish tribunals.
Amendment 35 makes some minor consequential tidying-up changes to the Tribunals (Scotland) Act 2014.
I move amendment 20.
Amendment 20 agreed to.
Amendments 21 and 22 moved—[Paul Wheelhouse]—and agreed to.
Schedule 1—Procedure rules
Amendments 23 to 34 moved—[Paul Wheelhouse]—and agreed to.
Schedule 2—Modification of enactments
Amendment 35 moved—[Paul Wheelhouse]—and agreed to.