Fatal Accident Inquiries (Legal Aid)

– in the Scottish Parliament on 26th February 2019.

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Photo of Daniel Johnson Daniel Johnson Labour

2. To ask the Scottish Government what its position is on providing legal aid to victims’ families for fatal accident inquiries. (S5T-01518)

Photo of Ash Denham Ash Denham Scottish National Party

We acknowledge that the families of the deceased may find attendance at a fatal accident inquiry distressing. The purpose of an FAI is to investigate, in the public interest, the circumstances of a death. At an inquiry, the procurator fiscal leads evidence to address the matters upon which the sheriff must make findings, including the cause of death. Where family members seek their own representation to participate in FAIs, applications for legal aid towards the costs of such representation are subject to the statutory tests of probable cause, reasonableness and financial eligibility, which are consistent with the tests for other forms of civil legal aid.

Those arrangements were considered during the passage of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016. However, the independent strategic review of legal aid in Scotland, together with recent high-profile cases, including the FAI into the Clutha bar tragedy, have highlighted the need to review the current legislation with regard to the eligibility of families who are involved in inquiries.

I assure Parliament that the Scottish Government will consider the issue in planning a new bill on legal aid in Scotland. The Legal Aid (Scotland) Act 1986 provided for the regulations that are still in force today, which is why we have now set up an independent strategic review of legal aid in Scotland. We will consult on a new bill on legal aid before the summer recess.

Photo of Daniel Johnson Daniel Johnson Labour

Many members will have been shocked—as I was, last week—to learn that, following a decision of the Scottish Legal Aid Board, the families of victims of the Clutha tragedy are being asked to contribute as much as £8,000 each for legal representation.

I hear what the minister has said about a review, but will the Government intervene immediately to reverse that specific decision?

On the review, does the Government think that the normal means of assessment for legal aid are appropriate in the case of fatal accident inquiries into disasters such as the Clutha tragedy, given the wider public interest?

Photo of Ash Denham Ash Denham Scottish National Party

Under the statutory regulations that are in place, the Scottish ministers cannot intervene to change the Scottish Legal Aid Board’s decision and the legislation, which was passed by the Scottish Parliament, requires contributions to be paid depending on an individual’s financial circumstances. Contributions reduce the cost of legal aid to the public purse and so help to fund vital services.

The figure that I have seen in the media of £8,000 for a family is not correct—that is actually the cumulative amount of money across all the families. The Scottish Legal Aid Board has exercised the full discretion available to it in making its decision in that case.

Photo of Daniel Johnson Daniel Johnson Labour

I thank the minister for that clarification.

The question raises broader issues with fatal accident inquiries. In recent weeks, we have heard from families whose loved ones have died abroad and who still cannot get post-mortem examinations; and the family of Craig McClelland are frustrated because the person who committed his murder was on one side of the prison fence rather than the other. Thanks to the work of the Lib Dems, we have learned of the shocking total cumulative backlog of FAIs.

Does the minister accept that there is something seriously wrong with the way in which FAIs work in Scotland, despite the fact that legislative reform took place in 2016?

Photo of Ash Denham Ash Denham Scottish National Party

As I am sure the member accepts, the decision to hold any fatal accident inquiry and the timing for initiating it are entirely matters for the Lord Advocate, operating independent of Government.

Depending on the circumstances, death investigations can sometimes be very complicated and technical and can involve a number of agencies working together. The Crown Office is committed to the prompt investigation of deaths, but it accepts that, in some cases, the time taken to complete a thorough investigation has been too long.

The Scottish Government has made available additional funding to the Crown Office, and it has used some of that to allow the Scottish fatalities investigation unit to try to reduce the time required to complete death investigations.

Photo of Liam Kerr Liam Kerr Conservative

On the delays that Daniel Johnson referred to, will the minister tell us what the cumulative delays in on-going FAIs are? What conclusions does she draw from those delays about whether staffing levels at the Crown Office and Procurator Fiscal Service are adequate?

Photo of Kenneth Macintosh Kenneth Macintosh Labour

That is slightly broader than the original question, but I will allow it.

Photo of Ash Denham Ash Denham Scottish National Party

I can answer the member’s question. The average length of time to complete an inquiry has been gradually decreasing, which is obviously going in the direction that we would like. We are pleased that the figure is decreasing, although we would like further progress to be made. That is why the Government has made available to the Crown Office additional funding to address the issue and to reduce the amount of time required to complete death investigations.

Photo of Liam McArthur Liam McArthur Liberal Democrat

Does the minister agree that a system that makes families wait years to find out the circumstances surrounding their loved ones’ death, and then asks them to make a financial contribution towards the process, is broken? Is she aware of recent reports that the family of a victim of an M9 crash were sent a bill by the highway authority to replace the shrubs that were damaged at the side of the motorway? Does she agree that it is time for an independent review of FAIs?

Photo of Ash Denham Ash Denham Scottish National Party

I thank the member for raising that point, which is important. I agree that a review is required.

To reiterate, it is the role of the Scottish Legal Aid Board to make determinations on whether legal aid funding is to be awarded. The Scottish ministers cannot overturn the board’s decision and there is no flexibility for the board to decide to disapply or disregard the statutory requirement to assess an applicant’s finances. Any changes to the system can be made only through changes to primary legislation, which is why we plan to consult on a new legal aid bill. That will be a full consultation and it will happen this year, before the summer recess. I will consider carefully the issue of FAIs as part of the wider planning for the new legal aid bill. I am happy to meet any member who wants to discuss the issue further and contribute to that bill.