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

– in the Scottish Parliament on 10th December 2015.

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Photo of John Scott John Scott Conservative

The next item of business is a debate on motion S4M-15113, in the name of Paul Wheelhouse, on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. Before I invite the minister to open the debate, I call the Cabinet Secretary for Justice to signify Crown assent to the bill.

Photo of Michael Matheson Michael Matheson Scottish National Party

For the purposes of rule 9.11 of the standing orders, I advise the Parliament that Her Majesty, having been informed of the purport of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill, has consented to place her prerogatives and interests, so far as they are affected by the bill, at the disposal of the Parliament for the purposes of the bill.

Photo of Paul Wheelhouse Paul Wheelhouse Scottish National Party

I am delighted to open this stage 3 debate on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. The law relating to the investigation of sudden, suspicious and unexplained death is different in Scotland from the rest of the United Kingdom. Countries that follow the common-law system, such as England, have coroners. In countries where there is a tradition of the civil law—in other words, law deriving from Roman law—sudden and suspicious deaths are investigated by the procurator, whose other duties include the preparation of criminal cases for prosecution.

Scotland is historically a country where the civil law has been followed, so the duty of investigating sudden and unnatural deaths has been handed down over a number of centuries to the procurator fiscal. The concept of the fatal accident inquiry has its roots in the reforms of the 19th century, which quite rightly demanded the improvement of social and working conditions.

The procurator fiscal thus first became the guardian of the public interest in relation to industrial and occupational deaths in order to ensure the impartial investigation of fatal industrial accidents with a view to presenting the evidence to a sheriff. Later, the procurator fiscal was charged with investigating any sudden or suspicious death in Scotland in relation to which there was a public interest in exposing and examining the facts of the death.

There have been a number of pieces of legislation on fatal accident inquiries and the most recent, the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, has served Scotland for nearly 40 years. It is right that the law should now be reformed and modernised and I pay tribute to Lord Cullen, who carried out a most thorough review of the legislation, which has brought us to this point.

There is a reason why I have sought to put the system of death investigation and of fatal accident inquiries in Scotland into context and to explain its historical derivation. Procurators fiscal investigate some 5,500 sudden, suspicious or unexplained deaths every year. Clearly many of those investigations will result in criminal proceedings.

In many cases, the fiscal will conclude that no further investigation or inquiry is necessary. Only around 50 to 60 cases per annum proceed to a full fatal accident inquiry before a sheriff. The Scottish Government firmly believes that this system incorporates and permits a necessary and beneficial degree of flexibility. Cases that have led to public concern will almost certainly lead to an FAI before a sheriff, while those that do not, by and large, will not.

One of the strengths of vesting all death investigation powers in a single public officer is that when homicide has been excluded, the prosecutor’s duty is not at an end, whereas if suspicious circumstances emerge in the course of investigating what had appeared to be an expected death, the prosecutor is already aware of the circumstances.

Deaths as a result of an accident in the course of employment and deaths in legal custody will automatically result in mandatory FAIs. Under the bill, deaths of children in secure accommodation and deaths in police custody, irrespective of the location of the death, will also now result in mandatory inquiries.

In all other cases, discretion is given to the Lord Advocate and the Crown Office to decide whether an FAI is required in the public interest. It is right that they should have that discretion, since the Crown will first have to establish whether there has been any behaviour in relation to the death that merits criminal prosecution. Only after that decision has been taken will consideration be given to the need for an FAI where it is not mandatory.

Lord Gill, the former Lord President, indicated in his evidence to the Justice Committee that it was right that the Crown Office should exercise discretion rather than the law becoming too inflexible, which would lead to many FAIs being held from which no lessons would be learned yet the bereaved family or families would suffer the distress of a public examination of the circumstances of the death of their loved one.

Under the bill, it will now be possible for the Lord Advocate to judge whether it would be in the public interest for an FAI to be held into the death of a person normally resident in Scotland who dies or is killed abroad. In coming to that decision, the Lord Advocate will have to take into account whether there has already been an adequate investigation of the death in the country where it took place. He or she will also have to consider whether there is a realistic prospect that an investigation in Scotland by the Crown Office will be able to properly establish the circumstances of the death, given that it will have to rely on liaison with, and the co-operation of, the legal and Government authorities in the country in which the death took place.

Nevertheless, the Government believes that the bill is a major advance in the law of death investigation in Scotland, particularly as it will be possible to hold an FAI without the body being repatriated to this country. That is still a requirement for a coroner’s inquest to be held in such circumstances in the rest of the UK. The requirement for the repatriation of the body was removed from the bill at the suggestion of the Justice Committee, to whose members I extend my thanks for their thoughtful and thorough consideration of the bill. There is therefore now parity in the bill in terms of a death occurring on the Scottish mainland, in the offshore North Sea oil and gas area, or abroad.

I should add that the system in Scotland is quite different from that under coroners in the rest of the UK. Under the coroners’ system, the coroner is responsible for the investigation of the death or deaths, but the coroner also presides over the inquest. In Scotland, the procurator fiscal investigates the death but if an FAI is mandatory or is ordered by the Lord Advocate, the fiscal will present the evidence to a full judicial inquiry before a sheriff. We believe that that system combines and embodies the necessary elements of effective investigation, separation of powers and judicial independence to determine authoritatively the circumstances of the death and any precautions that might have been taken and which should be taken in the future to prevent deaths in similar circumstances.

The bill contains new provisions that require participants at FAIs to whom a sheriff has directed a recommendation to respond, setting out how they propose to implement the recommendation or, if they do not intend to comply, explaining why not. Patricia Ferguson lodged an amendment at stage 2 that requires Scottish ministers to produce an annual report on responses to recommendations. Taken as a package. we believe that the proposals on requiring responses to sheriffs’ recommendations and the annual report will provide a transparent record of what has happened in relation to those recommendations. The report will highlight whether participants have responded to the recommendations, although if the experience under a similar system for coroners’ inquests is a guide, very high response rates may be expected.

Patricia Ferguson lodged another amendment at stage 2, which provides statutory underpinning for the family liaison charter that the Solicitor General for Scotland promised during evidence at stage 1. The charter will keep bereaved families fully informed of the progress of a death investigation and the likelihood of criminal proceedings or the potential for a fatal accident inquiry.

Patricia Ferguson did, of course, introduce her own member’s bill on fatal accident inquiries. Although she chose to withdraw her bill at stage 1, it is appropriate to acknowledge and pay tribute to all the hard work that she has devoted to addressing the various issues surrounding death investigations and FAIs. I thank her for the collaborative way in which she has engaged with the Government on the bill.

Elaine Murray lodged an amendment at stage 2 on trade union participation at FAIs. The Scottish Government accepted the amendment, subject to amending the provision to ensure that it properly reflected the policy intention. I am grateful to Elaine Murray, too, for discussing that with me, which has resulted in our amending the provision to ensure that it means that bodies similar to trade unions that represent workers who are not permitted to join trade unions will be able to participate at FAIs.

I pay tribute, too, to Flt Lt James Jones, who drew to the attention of the Justice Committee the anomaly that deaths of service personnel in the course of their duties in Scotland do not at present automatically result in a fatal accident inquiry, although a discretionary inquiry may be held. That fact was not raised by Lord Cullen in his review, nor was the matter raised during the Government’s consultation on its legislative proposals. It is a credit to the Justice Committee’s system of evidence taking that the issue was identified during its deliberations.

The matter will now be progressed by means of a section 104 order under the Scotland Act 1998, which will be brought forward at the Westminster Parliament because the issue engages the reservation of defence matters and the armed forces. I indicated during the stage 1 debate that we have received agreement in principle from the UK Government for that change. The Scottish Government will continue to work with the UK Government to put in place the necessary order next year.

The bill is not the end of the reforms of the system of fatal accident inquiries. In addition to the section 104 order to which I have referred, the Scottish Civil Justice Council will prepare rules for FAIs under section 34 of the bill that will complement and supplement the bill’s provisions. The rules will provide the kind of comprehensive, self-contained set of rules that Lord Cullen recommended were necessary for FAIs. It will therefore not be necessary in future to supplement the fairly sparse existing rules for FAIs with rules that were written for adversarial civil litigation, which may not lend themselves to an inquisitorial fact-finding process.

The involvement of the Scottish Civil Justice Council will ensure that the new draft bespoke rules for FAIs benefit from structured, co-ordinated stakeholder input. The rules will cover matters such as preliminary hearings, which will now be the norm for FAIs; the agreement so far as possible of uncontroversial evidence before the start of an FAI; greater case management powers for sheriffs, in line with the general thrust of the reforms under the Courts Reform (Scotland) Act 2014; and the new provisions for further inquiry proceedings where new evidence comes to light. The intention is that the new act, the rules and the section 104 order will all be commenced at the same time. As it will take some months to work up suitable and comprehensive rules under the new act, it is anticipated that commencement will not be until later in 2016.

The Scottish Government’s bill provides for a coherent, proportionate, modernised system of fatal accident inquiries fit for the 21st century. It seeks to provide what Lord Cullen desired: practical measures for a system of inquiry that is effective, efficient and fair. We believe that that is what the bill does and we hope that the legislation will be able to serve for even longer than the 1976 act. I commend the motion in my name and ask members to support it.

I move,

That the Parliament agrees that the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Bill be passed.

Photo of Elaine Murray Elaine Murray Labour

As we have heard, fatal accident inquiries into the circumstances of deaths are undertaken in the public interest in order to determine the time, place and cause of death and to establish whether lessons can be learned in order to prevent similar fatalities in the future. They are intended to be inquisitorial rather than adversarial, and they do not attempt to allocate criminal guilt. I think that we all agree that they should continue to operate in that manner.

The current legislation has for some time been recognised as being inadequate. As long ago as March 2008, shortly after Lord Cullen was asked to conduct his review of the fatal accident inquiry process, a debate was held in Parliament on the inadequacies of the system, and members’ speeches were informed by their direct knowledge of the experiences of their constituents.

Nine of Patricia Ferguson’s constituents died when ICL Plastics Group’s Stockline Plastics Ltd factory exploded in May 2004, and it was because of frustrations with the delays in the system—a judge-led public inquiry was not held for four years—that Ms Ferguson introduced to Parliament in November last year her proposal for the Inquiries into Deaths (Scotland) Bill. She had consulted on draft proposals in August 2013, and Lord Cullen had reported his findings in 2009. The Scottish Government responded in 2011, but did not introduce its bill until after Patricia Ferguson’s bill had been introduced. This may seem to be cynical, but I wonder whether the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill would be with us today if Patricia Ferguson had not started the ball rolling with her member’s bill.

Nevertheless, having been introduced in March, the Fatal Accidents and Sudden Deaths etc (Scotland) Bill has progressed fairly rapidly. As members know, Patricia Ferguson agreed to withdraw her bill and instead to work with the Government on amendments. Her bill sought to introduce time limits within which certain decisions should be taken and family members informed. During the stage 1 evidence taking, the Solicitor General for Scotland advised the Justice Committee of her intention to draw up a charter that would advise what bereaved families could expect with regard to communication, and a copy of the draft charter was circulated to committee members over the summer. At stage 2, Patricia Ferguson, in agreement with the Government, submitted an amendment to put that charter on a statutory basis. She and the Scottish Government also agreed on an amendment to require ministers to prepare an annual report on sheriffs’ recommendations relating to FAIs, and some clarifying amendments have been agreed to this afternoon.

I mention those two amendments because one of the Justice Committee’s recommendations was that the bill be amended to include some additional aspects of Patricia Ferguson’s bill. Even as amended, the bill does not address all the issues that she hoped to cover in her bill, but she will speak in the open debate and will, no doubt, comment on those issues. Neither does the bill address all of Lord Cullen’s recommendations, although it may be that the Government plans to bring some of those things into effect later on. However, the bill improves on the current legislation and is, therefore, welcome.

I am pleased that my modest stage 2 amendment was accepted so that the bill now gives representatives of the trade union of which the deceased was a member at the time of their death an automatic right to attend a fatal accident inquiry, thereby giving the trade union parity with the deceased’s employer. My original amendment also mentioned staff associations because I was keen for bodies such as the Scottish Police Federation and the Association of Scottish Police Superintendents to have the same entitlement to attend an inquiry when one of their members has died. I am grateful to the Scottish Government for improving the way in which that was expressed in its stage 3 amendments.

The Government amended the bill at stage 2 to enable an FAI to be held when a death has occurred abroad, even if the body cannot be repatriated. There are circumstances, for example deaths at sea, in which retrieval of the body is not possible. There being no possibility of a burial or a cremation ceremony is very upsetting for families—even without the law also debarring the possibility of a fatal accident inquiry being held in the public interest.

At stage 1, Flt Lt James Jones brought to us the issue of service personnel who die in service in Scotland. I am pleased that the United Kingdom Parliament is discussing that and I hope that there will be a resolution of the issue. I, too, am grateful to Flt Lt Jones for drawing our attention to the issue.

Patricia Ferguson also lodged an amendment that had majority support in the committee and which would have ensured that families could be legally represented through the complexities of a fatal accident inquiry by removing the reasonableness test for eligibility for legal aid. We are disappointed that the Scottish Government has chosen to delete that provision today, because it continued to have the support of all the opposition parties in Parliament, especially given Ms Ferguson’s erudite explanation of the need for families to be confident at the commencement of the FAI process that they will receive legal aid.

It is notable that the families of people who die in prison are now treated differently in this regard from the families of people who die at work or in the streets.

The committee, on majority vote, also amended the bill at stage 2 to implement Lord Cullen’s recommendation to make FAIs mandatory when people die when they are in compulsory mental health detention. At the time, we were supported by third sector organisations, including Enable, in their submissions to Lord Cullen’s review, and we had also been told that coroner’s inquiries are mandatory in such circumstances in England and Wales.

However, several organisations, health professionals and—crucially—mental health patients and their families subsequently wrote to both the Government and MSPs to ask that the amendments be deleted from the bill and for the bill to revert to the original wording, which provides for discretionary FAIs in such circumstances. As I said during consideration of the stage 3 amendments, my correspondence yesterday with Enable indicated that it would be content with that change, so long as adequate assurances are given that the review of the investigation that is required by section 37 of the Mental Health Act 1983, of deaths of patients who, at the time of death, are detained in hospital under mental health law, is progressed as a matter of urgency. We heard today that the order to do that was laid yesterday and that the review will be undertaken as soon as possible. It was worth while to amend the bill at stage 2, in order to get that reassurance today. I know that everybody will grateful for that.

Despite our disappointment about the deletion of Patricia Ferguson’s amendment on legal aid, we believe that the bill has been improved by comparison with Patricia Ferguson’s bill and by the subsequent amendments that were agreed at stages 2 and 3. We will support it in this evening’s vote.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I acknowledge Patricia Ferguson’s significant involvement in this legislative process following the withdrawal of her own bill, and her co-operation with the Scottish Government at stage 2. I thank the witnesses and stakeholders for their insightful evidence, which has informed the committee’s scrutiny of the bill.

It is not surprising that, 30 years after the system of FAIs was enacted, significant reform and modernisation of it were required. In 2009, Lord Cullen’s review of the law governing FAIs made a number of important recommendations, many of which are provided for by the bill.

During its stage 1 scrutiny, the Justice Committee identified a number of weaknesses that needed to be addressed at stage 2. For example, a common criticism from bereaved families was about the long delays before the commencement of inquiries, which can be aggravated by patchy communication from the Crown Office and Procurator Fiscal Office. Concern was expressed about the fact that the Scottish Government did not include a provision reflecting Lord Cullen’s recommendation that early hearings should be held, especially because early hearings would not only require the procurator fiscal to keep relatives informed of the progress of the investigation but would, crucially, focus attention on holding the FAI as quickly as possible.

However, following the commitment of the Solicitor General to produce a milestone charter outlining what families can expect from the COPFS in relation to timings of investigations and decision making, the committee came to the view that early hearings are no longer necessary.

In relation to FAIs into deaths abroad, the Justice Committee questioned the requirement that the body must be repatriated to Scotland for the FAI to be held. Taking into account evidence that occasionally exceptional circumstances would render that impossible, the Scottish Government amended the bill accordingly at stage 2.

I turn to the stage 2 amendments on legal aid for families and the amendments on mandatory inquiries—albeit with an opt-out for the Lord Advocate—into the deaths of individuals who have been detained compulsorily under mental health legislation. The recommendations from Lord Cullen were not provided for by the bill as introduced, but amendments to provide for them were voted for by a majority of the Justice Committee at stage 2. I still consider that the amendments relating to mental health detainees struck the right balance between ensuring that the mandatory FAI would not be carried out unnecessarily and ensuring the protection of the deceased’s rights. Moreover, the amendment that dealt with legal aid recognised that the Lord Advocate represents not the interest of the families but the public interest.

Today, the Scottish Government has overturned both those amendments. Two consequences will flow from that, the first of which is the laying bare of the total absence of checks and balances in the decision making of this Scottish National Party majority Government. That continues to be, justifiably, an issue of grave concern.

Photo of Christian Allard Christian Allard Scottish National Party

It has been said by Margaret Mitchell and in other contributions that, somehow, this has not been a proper democratic process. However, it has been. A Government cannot accept everything that the Opposition wants; if it did, the bill would be an Opposition bill. What is the point of being in Government if the Government cannot direct some part of the legislation? Some parts are approved—some parts are not. I also remind the member that she herself has a member’s bill that has been accepted.

The Deputy Presiding Officer:

Point made. Thank you very much.

Photo of Margaret Mitchell Margaret Mitchell Conservative

The point is that the SNP has a majority on seven out of nine subject committees in the—

Photo of Margaret Mitchell Margaret Mitchell Conservative

I accept Ms Grahame’s sedentary remark, but there are checks and balances in the Westminster Government; indeed, that has been proved quite recently by decisions that have been made by the House of Lords. The point is that there are no checks and balances on this majority Government, because we were never supposed to have a majority Government. As a result, we have had this despicable decision on Patricia Ferguson’s amendment on legal aid.

The Deputy Presiding Officer:

The member is just closing.

Photo of Margaret Mitchell Margaret Mitchell Conservative

There is no doubt that individuals who are detained under mental health legislation are among the most vulnerable people in society, but today the SNP Government has ensured that they will not be afforded the same protections as criminals who die in custody. Although the bill will, in general, have a positive impact on bereaved families’ experiences of the FAI system in Scotland, I believe that the Scottish Government can take little comfort or pride in how it has discriminated against vulnerable mental health detainees.

The Deputy Presiding Officer:

We now move to the open debate.

Photo of Christian Allard Christian Allard Scottish National Party

I have already made the point, but I will make it again: it is very important that members understand the strength of this Parliament, particularly in respect of the fact that Opposition members can introduce member’s bills. That is fantastic—it is a very great thing. Not only that—I will come back to this at the end of my speech—but a person can, by giving evidence to a committee, change a bill. It is quite incredible that not only Opposition members but people who give evidence to committees can contribute to the drafting of a bill. I am, of course, talking about retired Flt Lt Jones.

As a member of the Justice Committee, I am delighted to see the passage of another of the many bills that the committee has scrutinised this year. I thank committee members and the clerks, who will be delighted that this is the second stage 3 that we have done this week.

The bill will modernise the fatal accident inquiry process and make it effective, efficient and fair. I think that, following recent events, it is right that I remind Parliament that the interest of families in a fatal accident inquiry is in ascertaining the circumstances around and the cause of a death. The primary concern for all of us must be that we do not confuse a fatal accident inquiry with procedures in civil courts in which questions of blame are addressed. It is very important that we see that principle through, but it is clear that at stage 1, stage 2 and now stage 3, some members have wanted to move towards a more adversarial kind of inquiry. I do not think that that will help the process; it will certainly not help the family to get more of an understanding from the process.

There are two things that I would like to address quickly—one has been mentioned already. Scotland will be the first jurisdiction in the UK to allow inquiries into deaths that have occurred abroad without repatriation of the body of the deceased. It is important that families and the public understand that that will be the case only in exceptional circumstances. As the minister said, we have gone beyond the practice in England and Wales, and quite rightly so. He also said:

“it is a very important advance that that possibility should exist, particularly as that is not the case in England and Wales.”—[Official Report, Justice Committee, 3 November 2015; c19.]

I very much welcome that, and the reassurance that it will give to many people in Scotland and people who are working abroad in sometimes challenging conditions. I am thinking in particular about oil workers from the north-east of Scotland who work across the world.

The second point that I would like to address concerns retired Flt Lt James Jones, who gave evidence to the committee. It is fantastic to see that one person can make so much difference. I very much look forward to the passage of the order under section 104 of the Scotland Act 1998 that will ensure that those who risk their lives for us can be assured of appropriate inquests. That is particularly important when we ask them again and again to make the ultimate sacrifice overseas. Once again, I thank retired Flt Lt James Jones for coming to the committee because, without his efforts, that provision might not have been possible.

The lessons of the past have been learned, and I look forward to a fair settlement for service personnel in Scotland.

Photo of Patricia Ferguson Patricia Ferguson Labour

This afternoon, when we pass the bill—as we will, with Labour support—we will make some significant changes to the FAI system. However, I cannot help but observe that we have missed the opportunity to make some radical and important changes to the FAI system at the same time.

Lord Cullen’s review, which the Scottish Government ordered, was a good one, but as colleagues probably know, it did not go far enough for me. However, it obviously went too far for the Scottish Government.

As members know, I introduced a bill on this subject. I am grateful to the clerks to the Justice Committee for their assistance with that and to the legislation team in the Parliament, as well as to Patrick McGuire of Thompsons Solicitors, who was most helpful. I also thank the members of the committee, who were helpful and accommodating and carefully considered the bill that I proposed. As members know, the committee’s decision was that the best vehicle to take forward some of the issues was the Government’s bill, and the committee urged us to co-operate to take forward the issues that were being discussed.

The areas on which we agreed, such as the charter, will make a difference to families. The charter will make it easier for them to understand the process and get information in advance of an FAI and, I hope, during the process. The annual report of the recommendations that are made by sheriffs in considering fatal accident inquiries will also be important. I am glad that the Government eventually agreed that that report should be laid before Parliament because, if we are not going to do post-legislative scrutiny of bills such as this one, it is important that we at least consider the outcomes that are laid before us.

I am extremely disappointed that the Government did not agree to accept my stage 2 amendment about civil legal aid. We have perhaps rehearsed the debate on that enough this afternoon, but it is remarkable that, although—rightly—someone who has perhaps been involved in the death of a person in custody will still get legal aid, bereaved families whose family member has died as a result of an accident at work will not have legal aid guaranteed to them. The Parliament has done those families a disservice today.

Others have referred to this point already, but there is an important question about scrutiny in the Parliament. I will not make a big point of this but, when all the Opposition parties agree that there is a point that is worth pursuing and do so because they have a genuine concern and have aired and discussed the issues, it is sad that the Scottish Government has chosen to use its majority to vote that down. I have no compunction about saying that I know that the relevant amendment was agreed to at stage 2 only because there is no Government majority on the committee. I am grateful to all those members who gave the matter careful consideration, whether or not they voted for the proposal in committee or today.

My interest in FAIs was sparked by the death of nine members of the community at the Stockline factory in my constituency and the terrible wait that the families had for a fatal accident inquiry. Elaine Murray mentioned that. I hope that the recommendations that we agree to today and the bill that will emerge as a result of our deliberations will ensure that, in the future, families do not have to have the experience that those nine families had over a prolonged period of four years.

Photo of Alison McInnes Alison McInnes Liberal Democrat

The legislation that governs the fatal accident inquiry system is nearly 40 years old, and it has been six years since Lord Cullen reported on his review into the matter. Therefore, we can all agree that the bill has been a long time in coming. I am pleased that we have finally reached the home straight in reforming and modernising the FAI system.

At the outset, I praise Patricia Ferguson for the work that she undertook, the tenacity that she showed and her professionalism in the work that she did, which, ultimately, led to this Scottish Government bill. The bill as introduced included a number of improvements to the fatal accident inquiry system. It set out the requirement to hold a mandatory FAI for the death of a child in secure accommodation and for deaths under police arrest. It allowed FAIs to be reopened if new evidence was found and it required bodies that were affected by a sheriff’s determination to formally respond and set out what actions they had taken. Those were all welcome improvements.

However, as other members have said, not all of Lord Cullen’s recommendations were included. In particular, the decision was taken not to include within the mandatory category the deaths of people who were detained under mental health legislation. That changed at stage 2 but was reverted this afternoon during consideration of stage 3 amendments. As I said earlier, I have concluded on balance that there is a more proportionate and less distressing way to proceed that involves reform of the whole system of notifications and investigations.

Nevertheless, the debate that was generated has been worth while, and I am sure that there is a greater understanding among all involved that a more rigorous and coherent system for investigating the deaths of those who are detained for mental health reasons is required. An additional safeguard has already been put in place whereby all deaths of people who are detained under the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Criminal Procedure (Scotland) Act 1995 will end up on the procurator fiscal’s desk for his attention. I also welcome the minister's assurances this afternoon about the timetable for the review and hope that the review will pay particular attention to deaths by suicide while people were detained.

At stage 2, I pressed the minister on whether it would be appropriate to extend the requirement to hold a mandatory FAI to two further categories: the death of a child who was looked after by the state, even if they lived with their parents or guardians at the time of their death, and—this is a niche area—the death of a patient with dementia who, immediately before their death, received prolonged treatment using psychotropic medication. We know that such medication causes sedation, confusion and movement difficulty and that the overuse of those drugs in such situations has been implicated in an increased risk of stroke. A number of organisations, including the Mental Welfare Commission, have raised concerns about the widespread use of those drugs in care home settings, and the most vulnerable people in our society deserve our attention. I was pleased, in relation to both those categories, to receive assurances from the minister that attention was focused on those areas, and I therefore did not press my amendments.

I welcome the Government’s recognition of the need for a national child death review system to review the deaths of all children and young people and not just those in care. I understand that the steering group’s work to develop a model for that system is on-going, and I look forward to learning of its outcomes. I was also grateful to the minister for acknowledging that the prolonged use of psychotropic medication for dementia patients could be explored in the wider review, and I will continue to pursue the matter.

As I said, Patricia Ferguson was tenacious in her pursuit of improvements. Like her, I am disappointed that the amendment on legal aid that she secured at stage 2 has been removed this afternoon. Nevertheless, she should feel content that she has improved the original bill.

Fatal accident inquiries are held in the public interest, but behind every death is a family and those who knew and loved the deceased person—people who are seeking answers. Ms Ferguson’s amendments will ensure that they will be part of the process and kept informed.

Overall, I support the bill and the changes that it will make to the current system. The Lib Dems will support the bill at decision time.

Photo of Christine Grahame Christine Grahame Scottish National Party

I hear rumblings about the Scottish National Party’s overall majority. For eight years in here, we had a Labour-Liberal coalition majority, with a majority on every single committee. I cannot recall—on any occasion—ever managing to get an amendment through. Let us just park that one for a start, because there is no overall SNP majority on the Justice Committee.

Photo of Christine Grahame Christine Grahame Scottish National Party

No, I am going to proceed, because I have heard enough. We had eight years of that approach.

I very much welcome the legislation and commend the work of Justice Committee members, which has increased the relevance and potency of the bill. I congratulate Patricia Ferguson, because much that she did in pursuing her own bill persuaded the Government to change its legislation. Indeed, Paul Wheelhouse is a minister who listens and who collaborates, where possible, with other members who do not always agree.

Deaths of service personnel have been mentioned. We had the bizarre situation in which there could be a discretionary FAI for Scottish service personnel who died outwith the UK, but no discretionary FAI if they died in service in Scotland. In fact, there could be an inquiry in England, but nothing in Scotland. To the best of my knowledge, the only FAI that has taken place involving Scottish service personnel was the Mull of Kintyre Chinook helicopter crash, and that was simply because civilians were on the helicopter.

It is wonderful that we are to move away from that approach. I congratulate Westminster—it is not often that members will hear me say that—because it is going to move a section 104 order under the Scotland Act 1998. That relates to schedule 2 of the bill. That will be welcomed not only by families, but by the wider Scottish community. However, will the minister confirm that the change will apply to historical cases of the deaths of Scottish service personnel in Scotland? Will we be able to have FAIs into incidents that have already taken place?

My colleague Christian Allard referred to FAIs into deaths of Scottish residents abroad. Again, it seemed bizarre that a body had to be brought home for a discretionary FAI to be held. Obviously, there are circumstances in which there is no body to retrieve, for example if someone is lost at sea. If it is possible to pursue a discretionary FAI without a body, why not do that? I am glad that the Government has moved on that issue.

I turn to Patricia Ferguson’s bill. As I said, much that she did persuaded the Government to move in its legislation. The family liaison charter is very important. The idea of making the sheriff’s recommendations binding was initially attractive, but once we went into the detail, we began to realise that there would have been huge unintended consequences—and not only in terms of the parties that might have to be called to an FAI, widening its scope enormously.

For example, let us say that a widget was found to be faulty. The FAI could ask who manufactures these widgets and who operates them. It could involve people all over the world. Suddenly, there is a raft of ramifications, with all those people coming into it. That makes the proposal difficult. Now recommendations and the responses to them will be published, but the reality is that many faults that take place will be remedied before the issue even gets to an FAI, because it would be a very foolish employer that did not, as soon as an incident happened, look to his practices.

Time limits were another issue. There would be huge problems in having mandatory time limits for FAIs. For example, there are many questions about whether the bin lorry FAI went ahead too quickly. There can be good reasons why an inquiry might not be done straight away. A health and safety inquiry or an aviation inquiry, for example, may be necessary before an FAI and for the Crown Office and Procurator Fiscal Service to decide whether to go any further with a prosecution.

I support the bill. The original legislation is so old. That does not necessarily mean that all statute is past its sell-by date, but that piece of legislation is.

Photo of John Finnie John Finnie Independent

Article 2 of the European convention on human rights creates a right to life and, with it, the duty on the state to investigate the loss of life. That is a duty that our state has not taken lightly, does not take lightly and will not take lightly in the future.

During the passage of the bill, there were a number of interesting discussions, of which the discussion on mental health was one. Members have been willing to move their positions on various matters throughout the process. I have certainly been persuaded to do so. That shows the nature of the scrutiny that has taken place and the willingness to engage. I am pleased about that.

Like many members, I commend Patricia Ferguson. The family charter—the milestone charter—is significant. It will be a challenge for the Crown Office and Procurator Fiscal Service to service that properly, because dealing with any death is an emotive thing.

The minister talked about the history of the legislation. The bill forms part of an evolving situation. Lord Cullen reported in 2009 and some administrative issues were initially picked up. However, the bulk of his recommendations required primary legislation. That is why we have reached this point, and we know that the Scottish Government did not take up all his recommendations.

I was happy to lend my support to making legal aid available. Of course I am disappointed about what happened on that. Who knows what a future Green majority Administration will do when it comes to wielding power? It is a case of arithmetic.

Photo of John Finnie John Finnie Independent

Christine Grahame is right that there will not be any aeroplanes.

Members’ experiences are all different. I have experience of an FAI into a death in custody. It was a harrowing experience for everyone who was involved. I was there to ensure that the federated ranks were represented, and they were indeed represented by a lawyer. The finding was that there had been no disregard for the welfare of the individual who sadly lost his life—quite the reverse—but it was a searching experience for everyone. An FAI is certainly not a forum for laypeople—that is the most important thing for me to say—so Elaine Murray’s stage 2 amendment on trade union and staff association representation, which has now been refined, is welcome.

Another matter that may sound dry but which is important is case management. The less trauma that can be associated with the process, the better.

The provisions on allowing FAIs to be reopened and reconvened are important. I have already dealt with an inquiry from a constituent about an historical case. It is clear that the provisions in the bill will not apply to that case, and we need to send a message that the bill will not cover FAIs that are covered by the 1976 act.

Any death is traumatic, but a death where there are no remains is additionally traumatic. Many of the issues that relate to the absence of a body have been sensitively dealt with, which will be reassuring to people.

I imagine that families are completely unconcerned whether an inquiry is mandatory or discretionary, because they just want answers. The family charter will play an important role in that regard. Likewise, the provisions on deaths abroad, including those of service personnel, are to be welcomed.

There was a lot of discussion about FAI findings, on which Christine Grahame touched. Our initial thoughts on what can or cannot be achieved are often shaped by what we hear. There are challenges in that regard, but the important point is that the initial purpose of an FAI is to understand the cause of the death and to put in place mechanisms to avoid a repetition.

Public interest is also important, as is public reassurance. The bill will play its part in providing some public reassurance, and I will certainly support it at decision time.

Photo of Margaret McDougall Margaret McDougall Labour

I welcome the stage 3 debate on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill and I share in the tributes that have already been paid to the Justice Committee, Patricia Ferguson and the many witnesses and stakeholders who helped to inform the legislative process.

As the bill concludes its parliamentary passage, it is worth reflecting on its purpose, which is to implement the 36 recommendations of the Cullen review that require primary legislation some six years after they were published. The review was timely because the relevant legislation was elderly and had not necessarily kept pace with other developments in the justice system, not least the incorporation of the European convention on human rights into UK law.

The test is whether the bill achieves the policy objective of reforming and modernising the law that governs the holding of fatal accident inquiries in Scotland. My party’s assessment is that it does that, and we shall support it at decision time. There are some very positive and noteworthy provisions in the bill, not least the requirement that sheriffs’ determinations should be published and that anyone who was party to the inquiry and to whom a recommendation is addressed should have to respond accordingly. Just as the Justice Committee did at stage 1, I urge the Scottish Government to find ways of ensuring that sheriffs’ recommendations are respected.

At stage 2, Patricia Ferguson lodged a welcome amendment to the bill to place a statutory obligation on the Lord Advocate to produce a family liaison charter. The issues surrounding the Crown Office and Procurator Fiscal Service’s often intermittent communication with bereaved families are well documented. Although numerous reasons can undoubtedly be adduced for such spasmodic contact, it exacerbates what is already an extremely difficult and sensitive time for relatives, so the cross-party support for that amendment was very welcome, and I join other members in acknowledging Patricia Ferguson’s considerable work to reform FAIs.

I was troubled by the removal from the bill of Patricia Ferguson’s provision to ensure that families receive legal aid. I think that FAIs are an entirely different beast from civil litigation hearings, and I am not sure that that distinction was appreciated.

I want to comment briefly on what the Justice Committee said in its stage 1 report on the lack of clarity surrounding the purpose of an FAI that is held in the public interest. There is a real misunderstanding in this area, which serves to raise the expectations of families. There needs to be greater transparency, and there is an obligation on the parties involved to provide that. How does the fatal accident inquiry relate to other investigations involving fatalities and to the role of the family or families affected? Greater transparency would help to demystify a complex system, while at the same managing the expectations of what the inquiry will ultimately achieve.

Despite the fact that they received support from all but the SNP members of the Justice Committee, Margaret Mitchell’s stage 2 amendments were removed in toto from the bill today. I noted the minister’s comments that the provisions did not attract wide support from stakeholders, although perhaps that is because the policy intent was not fully understood.

It is worth noting that Lord Cullen acknowledged that FAIs should be held into the deaths of those who are detained by the state, especially those who are most vulnerable, and that such FAls are in the public interest. My colleague Margaret Mitchell sought only to put that recommendation on a statutory footing. It is unfortunate that that has been overturned, and it has implications for our unicameral parliamentary system, for the robustness of scrutiny and for the legitimate power and authority of a scrutinising committee by majority to change a bill. Airbrushing out such change at stage 3 is unimpressive.

That said, the bill is a good one that will receive the support of my party, and it will have a positive impact on the system of FAls in Scotland.

Photo of Graeme Pearson Graeme Pearson Labour

The absence of rancour in the debate and the support that exists across the chamber for the bill reflect well on the work that has been done by the members of the Justice Committee, my colleague Patricia Ferguson and those who gave evidence to the committee at stages 1 and 2.

We do well to remember that some 5,000 deaths a year are reviewed by the authorities and that somewhere short of 60 of them are subject to fatal accident inquiries. We should remember that the FAI is designed, quite properly, to determine the circumstances of a death, not to apportion blame. However, as John Finnie indicated, an FAI can be extremely difficult and upsetting for family members, close friends and those who were involved in the circumstances surrounding a death. They hear details—often for the first time—that have implications for how they might respond to the evidence.

In examining the circumstances of a death, it is right that a sheriff should act in a thorough and proper manner to examine all the circumstances of the death, and that can sometimes be extremely harrowing.

In those circumstances, it is good to know that general agreement has been achieved on some important elements. The evidence of the British Medical Association, the Scottish Association for Mental Health, the Mental Welfare Commission for Scotland and others have helped to point the Parliament in a direction that will ensure that a fatal accident inquiry will not be held in all circumstances in which someone who faced mental health conditions died.

The opportunity for the Crown to intervene in the appropriate circumstances to decide on a fatal accident inquiry is appropriate and commensurate with the circumstances that we face annually. I have confidence that is based on experience that the Procurator Fiscal Service has the ability to make the appropriate decisions in most circumstances.

Elaine Murray’s amendments provided value to the discussion in enabling the ventilating of all the issues. I am happy that, at the end of the process, we have come to a decision that I certainly feel comfortable with.

The Government’s agreement to include representation from trade unions and staff associations in relation to relevant deaths while people were engaged in employment is a very helpful way forward in advising how we should deal with them.

The other important element has been establishing grounds for the investigation of deaths of citizens that occurred abroad. That subject has caused a great deal of upset for many families in Scotland to date. Seeing some form of solution is important and should give comfort to many relatives.

I am disappointed that amendment 1, in the name of Patricia Ferguson, which was an attempt to provide some kind of equality of representation, was rejected. The issue has been fully ventilated, and I do not intend to go into the circumstances again, but I have certainly been present when procurators fiscal have made it clear to families that they were there to represent the public interest, not the families’ concerns. Families have found that very difficult to understand. I implore the minister to ensure that the family liaison charter is seen as very valuable guidance for the fiscal service in future so that its culture can take on board the changes in the responsibilities that we expect of it in dealing with fatal accident inquiries.

The minister’s reference to the duties of coroners in England and Wales did not assist the debate. That was largely irrelevant, as the system in Scotland has always been different and families have always had a more positive experience here. We should invest in those circumstances rather than rely on the comfort that it is worse elsewhere. I am not particularly interested in how the matter is dealt with in other jurisdictions, unless that advises us of ways to improve ours.

To return to Patricia Ferguson’s amendments, I hope that the Government will bear that in mind. If experience tells us that we have gone in the wrong direction, and if we find that relatives who meet the new circumstances are challenged, as I suspect they will be, we must make an early change to make legal aid the norm.

The presence of lawyers at fatal accident inquiries does not necessarily mean the introduction of new conflicts. If the nature of fatal accident inquiries and the purpose of holding them are made clear to lawyers—if it is made clear that they are there to determine the facts and not to engage in legal exchanges—I am sure that we can find a more productive way of going forward.

In conclusion, I make it clear that we support the principles behind the bill and will vote in support of it. I am grateful to the minister for his approach in dealing with many of the questions and exchanges that have occurred during stages 1 to 3.

Photo of Tricia Marwick Tricia Marwick None

I call Paul Wheelhouse to wind up the debate. I can give you eight minutes, Mr Wheelhouse.

Photo of Paul Wheelhouse Paul Wheelhouse Scottish National Party

I record my thanks to members for their contributions to the debate.

Before I go through the detail, it is important to address the point that Graeme Pearson raised about procurators fiscal being able to point people towards legal aid. I will consider that and see what we can do with the Crown Office and Procurator Fiscal Service and the Scottish Legal Aid Board to ensure that people are aware of the options that are available to them if they feel that the procurator fiscal will not take forward a certain line of questioning. I have tried to reassure members that we are aware of the issue, but I will take forward that point and see whether there is something that we can put in the family liaison charter to make that more explicit.

The bill provides the legislative framework that is needed to implement Lord Cullen’s recommendations. Of course, the detail of the procedure will be provided in comprehensive bespoke rules that will be written purely for fatal accident inquiries, whereas, until now, such inquiries have had to rely on the ordinary cause rules in the sheriff court.

Dr Murray raised a point about the delay in introducing the bill, although I should stress that it is a perceived delay. Inevitably, the bill had to wait in a queue of civil reforms, including the Courts Reform (Scotland) Act 2014. It was not delayed until such time as Patricia Ferguson’s member’s bill was introduced—that was perhaps a happy coincidence, if I can put it that way. We were certainly glad to work closely with Patricia Ferguson. I appreciate the hard work that she put into her bill and the constructive approach that she took after withdrawing her bill in working with the Government on amendments.

The bill builds on the recommendations that Lord Cullen directed to the Crown Office and which have already been implemented by the establishment of the Scottish fatalities investigation unit, which now oversees death investigations in Scotland. The Crown Office has also made a major contribution to the reforms by bringing forward its family liaison charter, which as a result of an amendment by Patricia Ferguson will be put on a statutory footing. The charter, which the Solicitor General for Scotland announced when she gave evidence to the Justice Committee at stage 1, will provide clarity on the information that the bereaved family will be provided with at the different stages of a death investigation. That is why it is possible to foresee information about legal aid being slotted into it. The charter will also give clarity on how and when that information will be communicated to the bereaved family by the Crown Office. It will give choice to bereaved families on how they want to communicate with the Crown, which is important.

I thank the Crown Office for expediting its work on the charter, which included a public consultation on a draft charter over the summer, so that it was available in time for stage 2. As I said, as a consequence of an amendment, the charter will be on a statutory footing. It is entirely appropriate that the Crown Office should take the lead on such matters, given the position of the Lord Advocate as the independent head of the system of death investigation in Scotland. It is worth remembering that section 48(5) of the Scotland Act 1998 makes it clear that

“Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.”

It is important to note how fatal accident inquiries fit into other investigations of death in Scotland. As has been said, procurators fiscal have a common-law duty to investigate all sudden, suspicious, accidental and unexplained deaths to establish the circumstances and cause of death. Around 11,000 deaths are reported to the Crown Office and Procurator Fiscal Service each year and it investigates about half of those. Some cases are also investigated by other agencies, including the Health and Safety Executive, which Christine Grahame referred to, the air, marine and rail accident investigation branches, the Care Inspectorate and of course the Mental Welfare Commission for Scotland. That sometimes causes a delay in the commencement of a fatal accident inquiry, but those are all important investigations. The Crown Office engages with those agencies and may instruct the police to investigate the circumstances and consider whether criminal charges should be brought, which may lead to a prosecution.

Consideration of criminal proceedings takes primacy, but investigations by the Crown are often held up and delayed by investigations by, for example, the air accidents investigation branch. Members will be aware that there was a considerable delay before the AAIB produced its report into the Clutha tragedy in Glasgow. Those delays are a matter of regret, as they lengthen the period of time before a fatal accident inquiry can take place.

I turn to some of the points that were raised in the debate. Christine Grahame, Christian Allard, Graeme Pearson and John Finnie referred to the issue of deaths abroad. The Justice Committee queried the requirement for the body to be repatriated before an inquiry could be held into the death of a Scot abroad, and I agreed that there may be occasions when a body has been lost or is otherwise not available for examination at a post mortem.

I pay particular tribute to Mr and Mrs Beveridge, who gave evidence to the Justice Committee at stage 1. It was a very brave thing to do. The death of their son Blair Jordan in harrowing circumstances was extremely distressing for them to deal with and I am very grateful to them, as I am sure are members of the Justice Committee, for sharing their personal experience. I hope that Mr and Mrs Beveridge will take some satisfaction from what has happened today, although it will not benefit their family—that would have required retrospective legislation—because it means that if someone dies in a situation similar to the one in which Blair died, the Lord Advocate will have discretion to hold a fatal accident inquiry.

Circumstances in which a body has been lost at sea will also be covered. It is right that in such exceptional circumstances the possibility of a death investigation and the potential for an FAI into a death abroad should not be lost. For that reason, we proposed the amendment at stage 2 that removed the requirement for a body to be repatriated before a fatal accident inquiry can be held. We hope that that will help relatives.

The Government recognises the need for bereaved families to be kept informed of progress with death investigations, and we think that the Crown Office’s charter will provide reassurance and enhance public confidence in the system. The charter will provide information about the system and timescales to families, and it will be written in a way that is understandable and accessible to everyone. I hope that that goes some way towards addressing the concern about timescales that Patricia Ferguson expressed in her bill proposal, in that the charter will ensure that families are at least aware of what to expect, with no nasty surprises in relation to delays that are encountered, and are kept informed throughout the process of the likelihood of a criminal prosecution.

Photo of Christine Grahame Christine Grahame Scottish National Party

I know that the minister is about to run out of time, but before he does, will he answer my question about the death of service personnel in Scotland, for whom mandatory FAIs were not available?

The minister is indicating that he is coming on to that, which is excellent. I will sit down.

Photo of Paul Wheelhouse Paul Wheelhouse Scottish National Party

On whether the legislation in relation to military FAIs will be retrospective, the answer is no. A discretionary FAI will have been considered at the time of the incident. However, I hope that the armed forces community and families will take comfort from the fact that in the event of the death of service personnel in Scotland in future, a fatal accident inquiry will be mandatory.

Alison McInnes referred to the child death review system. The Scottish Government child death review working group has submitted its report to the Scottish ministers, which is currently being considered by the Scottish Government. I hope that it will not be long before the outcome is made available.

The bill will ensure that FAIs remain fact-finding, inquisitorial judicial hearings, which are held in the public interest to establish the circumstances of sudden, suspicious or unexplained deaths, and deaths the circumstances of which cause public concern. FAIs are not meant to hold people to account, as the media occasionally mistakenly suggest, nor are they held specifically to provide answers for bereaved families, although they will normally do so. Questions of blame or guilt are for civil or criminal proceedings. FAIs are held in the public interest to establish the cause of death and to permit the sheriff to make recommendations as to how deaths in similar circumstances might be avoided in future.

The bill will also ensure that the system is in keeping with other justice reforms, including the use of specialist and summary sheriffs, preliminary hearings and early agreement of uncontroversial facts, along with greater scope for location and accommodation of FAIs. When taken together with the section 104 order and the new FAI rules that the Scottish Civil Justice Council will bring forward next year, the bill represents significant modernisation and reform of the law on fatal accident inquiries. I commend the bill to the Parliament.