Post-mortem Examinations (Defence Time Limit) (Scotland) Bill: Stage 1

– in the Scottish Parliament on 26th January 2021.

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Photo of Lewis Macdonald Lewis Macdonald Labour

The next item of business is a debate on motion S5M-23803, in the name of Gil Paterson, on the Post-mortem Examinations (Defence Time Limit) (Scotland) Bill at stage 1. I invite members who wish to speak in the debate to press their request-to-speak buttons now, and I call Gil Paterson to speak to and move the motion.

Photo of Gil Paterson Gil Paterson Scottish National Party

I am delighted to open the debate on the general principles of the Post-mortem Examinations (Defence Time Limit) (Scotland) Bill. The bill has been a long time in the making. I began it quite some time ago, in 2016, following a meeting with my constituent Pamela Munro, whose 15-year-old daughter, Paige, was murdered on 19 March 2016. Despite the charging of a suspect within a week of Paige’s death, a defence post-mortem examination was not held until 15 April, and her body was released to her family on 18 April—30 days after her murder. There was no transparency in the procedure. That caused a great deal of distress to Paige’s family, who lost the chance to properly say goodbye to her.

The anguish and pain that they experienced is, thankfully, unimaginable to most of us. However, it is my belief that there is no reason why any family should have to live with such uncertainty over when the body of their loved one will be released following a murder. Even one such incident is, in my view, totally unacceptable. I therefore propose in my bill simple measures to increase transparency in the system, to help families to better understand what is happening, and to lead ultimately, I hope, to the faster release of the bodies of the deceased.

When a person dies in suspicious circumstances, a post mortem examination is carried out for the Crown Office and Procurator Fiscal Service, usually within a few days of the death. There is also scope for a further post mortem examination, known as a defence post mortem, to be carried out on behalf of an accused.

There is no time limit within which a defence post mortem must be instructed or take place. The bill would rectify that by introducing an extendable 14-day time limit in which a defence post mortem examination could be instructed. The time period would begin from the day on which the defence team received the result of the Crown post mortem examination. If the defence team needed more than 14 days to decide whether a further PME was needed, it would be able to apply to the court for an extension. It could do so more than once. Such an approach would protect the accused person’s right to a fair trial. The defence would have to give reasons each time it applied for an extension. That should be a spur to action, reducing the likelihood of long delays.

Members will be aware that, due to time constraints, the Justice Committee was unable to reach a view on whether it supported the general principles of the bill. In its response to the committee’s stage 1 report, the Scottish Government, too, did not give a definitive view.

Since the report was published, the Cabinet Secretary for Justice and the Lord Advocate have expressed concerns about the bill. It is unfortunate that those concerns seem to be based largely on a misunderstanding of what the bill is trying to do and how it would work. For example, the Lord Advocate and cabinet secretary suggested that the 14-day time limit would be insufficient, as it takes about that time to make available the findings of a Crown Office PME. My intention was always that the 14-day time limit would begin only after the initial findings of the PME had been made available to the defence, to allow the defence 14 clear days to make an informed decision. I believe that that is exactly what the bill would achieve, but, if there is any doubt on that score, I am open to amending the bill at stage 2 to put the matter beyond doubt.

I acknowledge that the Crown Office has put in place a protocol with the aim of minimising delays and improving information sharing. I have supported the protocol and I am on record as welcoming its introduction. However, the protocol is not binding and, in the long term, a change of leadership or approach might mean that it is not observed. Rules on timescales for defence PMEs must be put in statute, to ensure that they continue in the long term.

It is unfortunate that there is a dearth of forensic pathologists in Scotland, which leads to delays in the carrying out of defence PMEs. I do not deny that that is a major problem that needs to be addressed, but I do not see how that could be done through legislation. Work to increase the number of forensic pathologists could complement my bill and should not be a substitute for it.

As I said, the bill has not been subjected to the full scrutiny that we, in the Parliament, expect to take place at stage 1, but that is not a reason to reject it at stage 1. There is scope for further scrutiny to be undertaken at stage 2, so I urge members to consider the bill’s merits and what it is trying to achieve and to give it the benefit of the doubt at decision time tonight.

I thank everyone who has supported the bill. I move,

That the Parliament agrees to the general principles of the Post-mortem Examinations (Defence Time Limit) (Scotland) Bill.

Photo of Adam Tomkins Adam Tomkins Conservative

This is the second of two members’ bills that have come to the chamber for debate this month after having been examined by the Justice Committee. As I explained in the debate last week on Claire Baker’s Culpable Homicide (Scotland) Bill, the Justice Committee has been unable to devote to the two bills the full and detailed consideration that they deserved. In part, of course, that is due to the pandemic and its impact on parliamentary business, but in greater part it is due to the quantity of Government legislation that has somewhat deluged the committee and that we are currently wading through.

The committee treated Mr Paterson’s bill in the same way as it treated Ms Baker’s, which was debated last week. That is to say that we took evidence from the member in charge of the bill and published a short report inviting the Government to respond in advance of today’s stage 1 debate. Accordingly, we took evidence from Mr Paterson in September and published our report in November, and the Government’s response was received in January. I thank both Mr Paterson and the cabinet secretary for their co-operation and understanding of the constrained circumstances under which the Justice Committee has to operate now.

The evidence that we took and the views that were submitted to Mr Paterson’s consultation raised three matters that I should draw to the attention of the chamber. First, it has to be said that the problem that Mr Paterson’s bill seeks to solve does not appear to arise very often. Despite the fact that Mr Paterson told us that the problem is fairly common, the most recent year for which statistics are available suggests that only two post mortem examinations were requested by the defence—only two in an entire year. That does not lessen the very real anguish that a family might have to endure in any particular case in which the body of the deceased cannot be released. However, it does suggest that the number of occasions on which the problem arises is very small.

Secondly, submissions from the Faculty of Advocates and others suggest that, when there is a problem, it is caused by a shortage of available forensic pathologists. If that is the problem, legislating for a maximum period of time within which the defence can request a post mortem examination, as the bill does, is not going to solve it.

Thirdly, the committee’s attention was drawn to a protocol, published by the Crown Office in 2018, that—as Mr Paterson acknowledged—has been helpful in addressing the issues. On that point, I highlight the view of the Law Society of Scotland, which said that

“a reasonable amount of time should be allowed to ascertain how the protocol is working ... in practice” before the Parliament legislates on the matter.

In the light of those considerations, the Justice Committee came to the following conclusions. First, it is important that the body of a deceased relative is released to the grieving family in a timely fashion, keeping delays to a minimum. Secondly, the number of times when that fails to occur are few and far between; nonetheless, each delay will cause considerable pain and distress for the family involved. Finally, although the committee had some sympathy with the policy intentions that underpin the bill, we noted a range of issues that were raised with the member in charge of the bill. I have outlined those to the chamber in my remarks this afternoon.

Taking all of that into account, the Justice Committee was unable to make a recommendation to the Parliament on the general principles of the bill, and I will leave it there.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I begin, first and foremost, by paying tribute to Gil Paterson for his dedication to the issue over several years, and for his hard work in introducing the bill that is before us. I know that he has engaged with successive justice secretaries, the many interested parties and the Parliament’s non-Government bills unit to get to this point.

It is right to acknowledge, at the beginning, the importance and sensitivity of the issue that the bill addresses. The experiences of Paige Doherty’s family that Gil Paterson has so clearly set out are unimaginably awful. Again, I can only express my condolences to her family and all the families who have been affected.

Paige’s case is not the only one of this kind about which we have heard in the Parliament. In the past, some families have experienced the distress of losing a loved one in appalling circumstances that have been made worse by having to wait for the body to be released. They were right to expect that something should have been done to stop that from happening, and something has been done. That was acknowledged by Gil Paterson and reiterated by the convener of the Justice Committee, from whom we have just heard.

In consultation with the Faculty of Advocates, the Law Society of Scotland and forensic pathologists, the Crown Office has agreed to and published its forensic pathologist consultation protocol. That gives defence agents increased confidence in the initial examination and therefore crucially avoids multiple post mortem examinations without compromising the integrity of the justice process.

The protocol has been extremely successful. Gil Paterson indicates that between December 2018 and December 2019, only two defence post mortems were requested. The most recent information given to me by the Crown Office is that there have been no defence post mortems since July 2019. In almost 100 homicide cases reported, there has been not a single defence post mortem. As the bill consultation concluded in early April 2019, the success of the protocol, which was published in October 2018, could not yet, in fairness, have become apparent. Circumstances have moved on and the issue has progressed.

The bill was introduced in a period of unprecedented difficulty, so scrutiny was never going to be straightforward; the convener of the Justice Committee has just reflected on that. The committee was unable to make a recommendation and, somewhat unusually, turned to the Government for a view. Given the inability of the committee to scrutinise the bill fully or make a recommendation, the lack of oral evidence taken and my concern that the bill would, inadvertently of course, make the situation worse for victims, I cannot in good conscience support it progressing to stage 2. I know that that will be of great disappointment to Gil Paterson, but I hope that he and everybody will understand that all of us have only the victims and their families at the forefront of our minds.

I did not benefit from the evidence from interested parties that would usually form a key part of stage 1 scrutiny of the bill. Although the bill is undoubtedly well intentioned, it is unlikely to lead to fewer or quicker defence post mortems. In fact, it is difficult to achieve fewer than none at all, as is currently the case. Conversely, my concern is that by requiring defence agents to put up or shut up, as it were, it is very likely to encourage them to put up. The bill is likely to compel defence agents to meet the requirements of their professional responsibilities by instructing their own examination. Indeed, the timetable allows them little other choice. There is a real risk that the bill would thus lead to more defence post mortems, rather than fewer. I am also concerned about the possible implications of the requirements to make applications to the court. That may require the disclosure of details of investigations that are being undertaken. In some cases, the next of kin may also be the accused or be under suspicion.

The 14-day time limit is the issue that gives me the most concern. The bill states that that would run from the notification of the cause of death, which Mr Paterson reiterated. However, the mere cause of death tells defence agents very little; only with the production of the draft full post mortem report can they make an informed decision on whether to require their own examination. The Crown indicates that the production of such a draft takes, on average, 14 days, which leaves no time to make a decision.

There are further drafting problems, but the overriding consideration is that any imposition of a time limit—whether that is 14 days or longer—is much more likely to do harm than good. Thanks to the success of the protocol, we are in an enviable position on post mortems.

I ask the Parliament to recognise the significant progress made with the development of the protocol. In addition, given the lack of scrutiny of the bill at stage 1 and the Scottish Government’s policy concerns, we simply cannot support the bill progressing to stage 2.

The Deputy Presiding Officer:

Members will be aware that we are running significantly behind as a result of technical difficulties earlier this afternoon. Therefore, before I call the remaining opening speakers, I call on the Minister for Parliamentary Business and Veterans, Graeme Dey, to move a motion without notice to delay decision time to 5.45 pm.

Motion moved,

That, under Rule 8.14.3, the debate be extended by 25 minutes.—[Graeme Dey]

Motion agreed to.

Photo of Liam Kerr Liam Kerr Conservative

The Scottish Conservatives will vote against the bill at decision time, but I make it clear that that is a finely balanced decision, because we have a great deal of sympathy for what Gil Paterson seeks to achieve. He argued his case clearly in his letter of 22 January, to which I will return.

The member’s bill would establish a 14-day time limit on the defence requesting a second post mortem examination. The rationale is that that would reduce delays in releasing bodies to grieving families, which would reduce the grief that victims’ families feel and give increased certainty about the timing of the process and about when funeral arrangements could be made, which would protect families from further trauma.

That must be the right way to go. I say that with authority because, as we set out last autumn, that precise change will form a key part of our proposals for the victims law that we intend to introduce early in the next parliamentary session. However, we cannot move Gil Paterson’s bill on to stage 2 today.

First, I am deeply uncomfortable with the legislative timetable in the justice portfolio and its impact on our ability to scrutinise proposed legislation. We consider the bill in a context in which the Justice Committee’s convener described the committee as being awash and deluged with legislation and in which the Scottish Government has declined to reduce the legislative workload on the committee.

This morning, the committee debated amendments to the Defamation and Malicious Publication (Scotland) Bill. Tomorrow is the deadline for lodging amendments to the most controversial bill in Scottish Parliament history, and the daily list shows that more than 100 amendments have already been lodged. On Thursday, the Parliament will debate the Domestic Abuse (Protection) (Scotland) Bill at stage 1, and we will then look at amendments to that.

The Parliament must pass robust, scrutinised and enforceable legislation, yet the member concedes in his letter of 22 January that

“no substantial evidence on the Bill has yet been taken”.

That is because, as he acknowledges, the Justice Committee was unable to take evidence before issuing its report, in which it was unable to reach a conclusion because of its inability to scrutinise a bill that the member accepts is not without its flaws as drafted, even if he is right about the Crown Office response, although I prefer the cabinet secretary’s submissions on that. The convener’s remarks on serious challenges that the committee reviewed were well made.

Gil Paterson suggests in his letter that a full suite of evidence could be taken at stage 2, but I do not see how that is possible alongside making the appropriate amendments to address the many concerns that the written submissions have raised. Given the timeframe that we have, it would be irresponsible to move the bill to stage 2. The families who have perhaps been let down by the current mortem process would also be given false hope if the bill moved to stage 2. However, it is important to reassure them today.

All too often, victims are an afterthought in our justice system. The Scottish National Party has, for example, failed to deliver on my demands for Michelle’s law and the victim notification scheme. I commit here and now that, if I am in a position to do so after the election, I will introduce a victims law that includes the change that Gil Paterson seeks, so that it can be interrogated, scrutinised, amended and implemented. I will work collaboratively on that and use the work that the member has done. I ask the cabinet secretary to make a similarly firm commitment in closing that, regardless of who finds themselves in government, he will promise to work with the Scottish Conservatives to implement that measure after the election.

The Scottish Conservatives have the greatest sympathy with victims and their families, but more time is needed to ensure that the bill would work for victims and deliver, and the Justice Committee and the Parliament do not have that time. I look forward to implementing such proposals in the future.

Photo of Rhoda Grant Rhoda Grant Labour

I congratulate Gil Paterson on introducing the bill. [Inaudible.]—to introduce a member’s bill, so it is a success to reach this stage.

The bill addresses the delays that are faced by families whose loved ones have been murdered. It would try to speed up the time that it takes to release a body for burial. The time that is spent waiting is heartbreaking for families. If we can try to make that terrible situation easier, we should do so.

Concerns about the bill have been highlighted. Would it do what it intends to do? Would it bring earlier closure for families? The truth is that we do not know. The bill has not been scrutinised, so we are unable to take a view on those issues. We know that the bill aims to make things better for the families. It seeks to limit the length of time during which the defence in a criminal case can request a second post mortem. The aim is to ensure that victims’ bodies can be returned to their families as quickly as possible, without hindering the criminal justice process.

The Scottish Government and the Crown Office have highlighted a number of issues regarding the bill. They say that the 14-day time limit is not workable. However, Gil Paterson made it clear that that timeframe could be extended if required and that the clock would not start before the defence had received a copy of the Crown’s post mortem report. That provision is intended to speed up the process and thereby make it easier for families, but it requires to be examined and it is unfortunate that that did not happen in committee prior to this stage 1 debate. That scrutiny needs to happen before the bill proceeds so that, if the bill needs amendment to make it workable, that can be done at stage 2. There are other concerns regarding unintended consequences of the bill that could undermine its policy intention. Those need to be examined and the provisions amended, if possible.

We are told that at present there is a lack of forensic pathologists in Scotland able and willing to carry out post mortems and that that is the main cause for the long delays experienced by grieving families. We are told that the bill will do little to address that core issue and, should the bill lead to an increase in second post mortems, it could result in longer waits. However, it is unclear to me why the bill should lead to more post mortems being carried out. Again, that has not been properly examined at stage 1.

The Cabinet Secretary for Justice concluded that, without full consideration of the issues, the Scottish Government was unable to take a final position and would not vote in favour of the general principles of the bill tonight. However, it is unacceptable for us to vote the bill down simply because there has not been enough time for scrutiny. That is not to say that we do not need scrutiny—we do and that would have to be carried out before stage 2. If there were not time to do that scrutiny at stage 2, then the bill would run out of time and fall.

We owe it to families to leave the bill open to proceed if there is time. If we cannot make the bill workable, we can vote it down at stage 3. If we support the bill tonight, we would still not give it our final approval until it had been scrutinised and amended. I urge members to vote for the bill tonight.

Photo of Liam McArthur Liam McArthur Liberal Democrat

This is the third of three member’s bill debates that I have covered recently, following our consideration last week of the bills that had been introduced by Daniel Johnson and Claire Baker. It is fitting to acknowledge the tremendous amount of work that has been put in by Gil Paterson and his team, as well as his passion to see changes made that might improve the lives of those who are affected by delays in carrying out post mortems.

Although the Scottish Liberal Democrats will not be able to lend our support to the bill, we applaud its underlying motivation, which is a desire to address legitimate concerns about the anguish caused to individuals and families as a result of delays in our justice system. Whatever the explanation for those delays—however reasonable and justified they might be—it does not necessarily diminish the impact that they have on those affected. Mr Paterson’s intention of reducing the pain and distress that are experienced by loved ones in the midst of an already traumatic time is highly commendable.

The pain and heartbreak of losing a loved one is difficult to bear and hard to process. Losing a loved one in what are considered to be suspicious circumstances only compounds that. When everything else seems difficult to understand, many find comfort in a process. Often, families bind themselves to the routine of a funeral and burial that also allows for the natural process of grieving to take place. At the same time, however, justice requires due process. Piecing together what happened is often the only way of providing families with any clarity, as well as closure.

That said, any delays to post mortems have to be minimised as far as possible. They are not fair to anyone involved. They are in no one’s interests. I am glad to see that things have moved on since the awful death of Paige Doherty, which did so much to inspire Gil Paterson’s commitment to addressing the issue.

The forensic pathologist consultation protocol for post mortems appears to have added important boundaries to the circumstances in which defence agents can request post mortems. On the face of it, that seems to have helped by increasing the confidence in post mortems in the first instance and reducing the need for defence agents to intervene. As we have heard, cases of a second post mortem being sought now look to be extremely rare. For that, Gil Paterson deserves credit and thanks.

I appreciate that Mr Paterson will be disappointed if the bill does not proceed to stage 2, as appears likely. However, I hope that he can take some satisfaction from knowing that he has helped to create the impetus for changes that can and will make a difference.

Photo of John Finnie John Finnie Green

At decision time, the Scottish Green Party will support the general principles of the bill, which is what we will be voting on. The bill might not be the finished article, but we have heard from Mr Paterson that he is more than happy to engage with others to provide clarification.

The bill is about the defence having access to a post mortem rather than having to rely exclusively on the one that is provided by the Crown Office and Procurator Fiscal Service. Crucially, it is about timing. We are told by the Crown Office that it takes, on average, 14 days before it can send the result of a PM to the defence. Could that be improved? There are issues relating to the number of forensic pathologists and to conflict.

Mr Paterson is to be commended, because his work has driven the creation of the protocol, but it is not the finished article. The cabinet secretary talked about—I hope that I am quoting him correctly—the success of the protocol. First and foremost, it is a protocol, not a legislative requirement.

I take issue with the cabinet secretary saying that Mr Paterson’s proposal will give defence agents little choice but to go ahead with a post mortem. Our legal system is full of time restraints and requirements, and I think more of defence agents than that.

It was suggested that an accused might be a family member of the deceased, but we must deal with such situations at the moment. The idea that the bill will have no merit because of issues relating to the disclosure of such information seems to be entirely fanciful.

I take a rights-based approach. When Mr Paterson approached me—I should declare that I am a signatory to the bill—my initial concern was that I did not want the bill to do anything that would deny the defence the opportunity to have full access to all evidence that could be exculpatory, and I am entirely satisfied that it does not. In his letter to the committee, Mr Paterson told us that no other jurisdiction has such an open-ended approach.

The shortage of pathologists should be dealt with. We know that there are shortages of professionals in various fields, and that that can give rise to a conflict of interests.

Some members have alluded to the Law Society’s evidence. I thought that its comments about video evidence and “best evidence”, which is a legal term, were very good.

In the brief time that I have left, I want to talk about parliamentary scrutiny, which has been entirely back to front in this instance. The proposer of the bill is the last person whom the committee should see, not the first person. We should hear from the member after we have heard and addressed concerns.

I know full well the work that has gone into the bill. I do not doubt that there are some genuine concerns, but the bill is a worthwhile proposal. It would cause detriment to no one; it is about enhanced practice. The bill should not fall because of the administrative process of scrutiny or, in this instance, a lack of scrutiny.

Other members have alluded to the situation with Claire Baker’s Culpable Homicide (Scotland) Bill, which was debated last week. That was another bill that sought to directly address widespread public concerns.

I agree with Mr Paterson that agreeing to the general principles of the bill does not imply that it should be passed at stage 3; rather, it confirms that the proposal is a good idea that is worthy of further examination. That there might not be time or capacity to carry out that examination does not suddenly negate the bill’s merits. It is the merits of the proposal, not our procedures, that we are adjudicating on at decision time. The bill is a sound proposal, and I urge members to support it at decision time.

The Deputy Presiding Officer:

We move to the open debate. I ask for three-minute speeches, please.

Photo of Kenneth Gibson Kenneth Gibson Scottish National Party

I thank my colleague Gil Paterson for introducing the bill and for his hard work and tenacity on behalf of victims and their families over many years. The bill is sympathetic and understanding of the grief and anguish felt by those who have lost a loved one, often in the most appalling circumstances, and it reflects a desire to reduce delays or difficulties in allowing grieving victims’ families to hold a funeral following the release of the body. However, there is no evidence to suggest that delays in the return of bodies are caused by inappropriate action or inaction on the part of defence agents.

Since October 2018, there has been a non-legislative forensic pathologist consultant in place to give defence agents greater confidence in initial post-mortem conclusions and to avoid multiple post-mortem examinations without compromising justice. As we have heard, in the year after the protocol was passed, only two defence post mortems were requested, with none since July 2019. That shows that the protocol is working. The Law Society of Scotland suggested that an evaluation of the protocol’s success or otherwise should be undertaken to establish whether there is any absence of due diligence in relation to its application by the defence and whether further measures are needed.

In its current form, the bill could create more defence post mortems rather than fewer. If applications are based on an arbitrary timescale, the provisions could have the opposite effect to the bill’s intentions and could inadvertently exacerbate the stress and pain that are experienced by families.

A defence with only 14 days to request a post mortem before losing its right to do so is much more likely to request one. An increase in applications, which the Law Society says is inevitable, would burden courts with the time and the associated costs needed to support such a process, while it is reasonable to assume that an increase in applications resulting in more post mortems would also be felt by forensic pathologists—of which there is a shortage, as we have heard.

Further scrutiny—of both the bill and the protocol—is required to investigate how best to improve the bill and to ensure that it has no unintended consequences. Covid-19 and the measures that it necessitates continue to impact on the workings of the Parliament. In its stage 1 report, the Justice Committee indicated that it was unable to provide the necessary level of scrutiny, as lockdown restrictions delayed the committee’s hectic work programme. Indeed, this feels like déjà vu, given that we were in exactly the same position only five days ago with Claire Baker’s Culpable Homicide (Scotland) Bill.

Presiding Officer, one wonders why bills are being brought forward to stage 1 without effective scrutiny, which is undoubtedly leading to disappointment both for the member concerned and for those supporting the bill’s aims. We must deliberate consistently and without fear or favour.

The bill before us comes from a place of humanity and a strong desire to help families who are enduring unimaginable grief. Without appropriate scrutiny, however, we risk passing legislation that is incomplete, possibly with unintended and unforeseen consequences.

It is therefore with great regret that I cannot support the bill today.

Photo of James Kelly James Kelly Labour

I pay tribute to Gil Paterson for the amount of work that he has put into pursing the bill and into an issue that he has raised consistently in Parliament. The objective of the proposed legislation is to provide an appropriate time limit in which defence agents can request a post mortem. Mr Paterson has highlighted a very important issue. There is no doubt that for people to lose a loved one in very difficult circumstances is stressful enough without the body not being returned to the family after an appropriate time so that they may have proper closure and bury the person with dignity.

Although I do not disagree with the statistics, I fell that, in quoting recent statistics on the number of post mortems that have been requested, Adam Tomkins and Humza Yousaf tried to minimise something that is a significant issue for people who have been affected. Mr Paterson gave the example of his constituent.

The Government’s reservations about the bill were recorded in its letter to the Justice Committee. Fundamental to that has been the 14-day time limit that is proposed in Mr Paterson’s bill. Mr Paterson dealt with that point well in his response to the committee and to all MSPs. He has shown that he is prepared to be flexible on that; I think that the issue could be explored further.

My point about evidence and the timetable is one that I made last week during the debate on Claire Baker’s Culpable Homicide (Scotland) Bill. While there is a question mark over the date of the election, we should allow the bill to pass at stage 1 and we should take forward its general principles, because there might be additional time available if the election is delayed.

We must remember that a bill moves through the stages in order to allow issues to be raised, changes to be made and more evidence to be heard. The issues that have been identified in the bill could still be addressed further down the line; it could be fixed and become a more appropriate piece of legislation.

With that in mind, I urge members to support the bill at decision time.

Photo of Rona Mackay Rona Mackay Scottish National Party

It is customary to begin a speech by saying how pleased one is to be taking part in the debate. That is, unfortunately, not the case for me today. To say that the Post-mortem Examinations (Defence Time Limit) (Scotland) bill, which was introduced by my friend and colleague Gil Paterson, is well intentioned is an understatement. I know how passionately he feels about the bill, which he has been working on throughout the session, and I know how hard he has worked. It therefore pains me to say that I am unable support the bill at stage 1.

We heard in Gil’s opening speech that he was moved to help the family of his constituent, Paige Doherty, who was brutally murdered. Their experience of the post-mortem judicial process was one that no family should have to go through. Gil vowed to do what he could to lessen the pain of any family facing a similar tragedy in the future.

The cabinet secretary has highlighted the reasons why he and the Lord Advocate cannot support the bill. The Law Society of Scotland and others also raised concerns. Alongside the technical reasons that have been cited, I know, as a member of the Justice Committee, that through no fault of Gil Paterson, there was no time to scrutinise the bill or to take evidence from stakeholders or the judiciary.

In its stage 1 report, the Justice Committee noted that its ability to scrutinise the bill in depth had been constrained by the current pandemic and by the sheer volume of other business that the committee was dealing with. As a result, the committee made no recommendations to the Scottish Parliament on the general principles of the bill.

Crucially, the cabinet secretary has confirmed something that we have heard members say about the new protocol for post mortems, which is being successfully followed. As a result of that protocol, no delays have occurred since July 2019. I believe that the light of heightened publicity that Gil Paterson has shone on the issue at every opportunity is largely responsible for effecting that change.

I know that it will be of little comfort to Gil if his bill is not passed at decision time, but I believe that his campaigning on the issue has already made a hugely positive impact on the process. He should be commended for that, as Liam McArthur and others have said. Without Gil’s caring efforts to help Paige Doherty’s family, the process might never have been reviewed, and many more grieving relatives might have faced that same trauma.

I say with great sadness that I will be unable to vote for the bill at decision time.

Photo of Rhoda Grant Rhoda Grant Labour

This has been a short debate, but one in which Gil Paterson has highlighted the heartache that any delay in releasing the body of a loved one can cause to a family. The plight of Paige Doherty’s family moved him to introduce the bill. It shows how a constituent’s lived experience can influence what happens here in Parliament. I commend Gil for that.

Members have suggested that the bill would affect only a small number of people. That might be right, but we are talking about a difficult point in people’s lives—one that can have a lasting impact.

We need to make legislation that works not only for the majority of people but for minorities, no matter how small. Gil Paterson has made it clear that the proposed 14-day cut-off is not an issue, because it refers to 14 days from the date when the state’s post mortem findings have been received by a defence team. The bill would give the defence team the ability to extend the period by giving it 14 days to decide whether it needed a second post mortem and to apply for an extension to allow it do that.

Many members have welcomed the protocol that has been put in place as a result of Gil Paterson’s bill; the cabinet secretary and Kenny Gibson told us that the protocol is working. However, James Kelly was right to say that that should not minimise the heartache that is faced by families. We need to ensure that the protocol not only works now but continues to do so. The bill could provide the opportunity to enshrine the protocol in legislation, through an amendment.

John Finnie talked about the lack of pathologists, which is an issue that causes delay not only for people in the circumstances that Gil Paterson is trying to address but in all other circumstances that require post mortems. What is the Government doing to ensure that adequate numbers of pathologists are trained, and that they will be available to carry out those difficult tasks? It would be good to hear in its summing-up speech what the Scottish Government is doing to deal with the issue.

It takes time to introduce a bill. Adam Tomkins explained the difficulties that the Justice Committee has faced with Government legislation and the time that it takes to consider it, as well as members’ bills. It is not the committee’s fault that there is not enough time, but surely that is not a good way to treat members’ bills. Government bills continue to go through Parliament without delay, but members’ bills are being lost at an early stage. Kenny Gibson seemed to blame members for that, but we all know how difficult it is to introduce a member’s bill. I am glad that Rona Mackay made it clear that it is not the member’s fault when their bill is not properly scrutinised.

As I said last week with regard to Claire Baker’s Culpable Homicide (Scotland) Bill, agreeing to the motion to pass the bill at stage 1 tonight would not mean that it would be passed at stage 3. In addition, as James Kelly said, if the election is delayed, there will be ample time to carry out the scrutiny that is required to amend the bill and make it right. If there is no time to carry out that scrutiny, the bill will fall, so we would lose nothing by letting it proceed tonight in the hope that we will have time to amend it later, and make a difference to people’s lives.

Photo of Gordon Lindhurst Gordon Lindhurst Conservative

Justice should be paramount in any criminal justice system and should have two ends: protection of the innocent, including victims of crime, and conviction of the guilty. Part of protecting the innocent is minimising the trauma caused to the innocent, such as by the death of a loved one.

The bill has commendable intentions and was well worthy of consideration. I recall clearly the conversation that I had with Gil Paterson towards the beginning of this parliamentary session, in which he set out to me his purpose in bringing the matter before Parliament, and I have no doubt of his sincere intentions in doing so.

A number of issues in the bill that is before us have rightly been pointed out as needing attention. I say “rightly” because, more so than headline politics, law is a matter of detail that directly affects the individual, particularly in traumatic circumstances. It is also key to a fair justice system that the accused individual and his counsel should have fair opportunity to a full and proper defence against charges brought by the Crown.

Evidence from the Faculty of Advocates reflected what appears to be a systemic lack, over many years, of forensic pathologists who are available and willing to carry out examinations and to prepare reports, which is an area that the Scottish Government is responsible for. The law can say what it likes, but it is ineffective without the proper training, organising and resourcing of the various roles found in a properly functioning criminal justice system. Realities on the ground need to be observed when it comes to legislation.

In the case of homicide, in particular—this view is shared across the justice system and several of its professional bodies—examinations can be complex and bringing charges can take a great deal of time. A two-week limit on a request for a second post mortem might be too short for an informed position to be reached. However, the Scottish Conservatives have called for reasonable limits as part of our victims’ law proposals, to improve victims’ situation through criminal justice reform.

The bill seeks to deal with one of many issues that require to be addressed—hopefully sooner, rather than later. It is unfortunate that it cannot be dealt with in this parliamentary session.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I thank all those who have contributed to the debate. Once again, I pay tribute—as everyone else has—to Gil Paterson’s hard work on the bill. As I said in my opening speech, this is an important and sensitive matter. We have been able to demonstrate again the importance that the Parliament attaches to sparing victims in extremely disturbing cases unnecessary distress.

I will address some of the issues that members have raised. I think that John Finnie said that progressing the bill would cause no detriment whatsoever. I would be keen to explore that with him in greater detail, perhaps after the debate, given that, as I articulated in my opening speech, the crux of the matter is the concern of the Government—and of the Crown Office, as is clear in its letter to the Justice Committee—that the bill has the potential to make the situation worse. Of course, that is unintentional, but the 14-day time limit would ultimately make the situation worse for victims.

Some members have said, and Mr Paterson has reiterated, that the 14-day time limit would be extendable—indeed, it could be extended many times—but that does not address the issue. If the time limit were extended and there was a delay in releasing the body, that would only compound the trauma for the victim’s family as opposed to relieving that trauma, which is the very issue that the bill seeks to address.

A number of members have also talked about the protocol. I reiterate my strong belief that the protocol has been and is being successful. I note also that the Law Society of Scotland, in its briefing to MSPs, mentions that it believes that there should be more time to explore whether the protocol is working successfully before we, as a Parliament, introduce legislation.

I hope that it is of some consolation to the victims whose experiences we are discussing that there has not been a single defence post mortem request made since July 2019. I know that that may be of cold comfort because of the impact that the cases will have had on them, but I hope that it is of consolation that the new defence protocol seems to be working.

The issue of scrutiny is important. A number of members believe that further scrutiny can take place at stage 2. However, the Justice Committee’s convener was robust in saying that the committee is struggling for time because of Government bills, and I accept that the committee is progressing a lot of vital Government business. We are, of course, also in the midst of a global pandemic, and I think that it would be churlish not to recognise the impact of that on our collective legislative timetable.

The Government’s position remains that there are significant fundamental policy problems with the bill. The most concerning of those is the 14-day limit. I will not go into that in detail, because I have only a little bit of time in which to conclude my remarks. However, at best, the 14-day time limit would, I think, force defence agents to speculatively request a post mortem. At best, that would create scheduling problems for premises and pathologists. However, at worst, if an examination went ahead, it might delay the release of a body, all because of an artificial statutory deadline. Some members have said that it might be possible to address such issues by amending the bill, but I do not think that it could be amended sufficiently to improve on the current situation, in which there is no limit on defence post mortems.

A number of members have asked for further details of how post mortems are conducted and of the issues around the recruitment of pathologists. I will pass those requests on to the Lord Advocate, who, as members will know, as the head of the Crown Office and Procurator Fiscal Service, has responsibility for matters regarding post mortems, and I will ensure that his responses are provided to members.

As I said at the beginning of my remarks, no one should detract from the hard work that Gil Paterson has done on this incredibly sensitive issue, which has been driven and motivated only by the desire to do right by victims and their families. He will be disappointed by the lack of support for his bill—indeed, I have spoken to him and he has expressed that disappointment to me. However, regardless of whether members intend to support or oppose the bill at decision time, I hope that it is understood that all of us have only the victims’ best interests at the forefront of our minds.

The Deputy Presiding Officer:

I call Gil Paterson, the member in charge of the bill, to wind up the debate.

Photo of Gil Paterson Gil Paterson Scottish National Party

I will address issues that have been raised in the debate. First, though, it would be remiss of me not to thank everyone in the Parliament’s non-Government bills unit for their sterling assistance with my bill over a long period of time. I also thank all the representatives of agencies to whom I spoke and whom I met who are directly involved in the delivery of post mortems in the justice system and who assisted me.

The bill is a simple measure, but it would bring significant benefit to families who lose loved ones in murder cases. I believe that we can assist them in their time of desperate need by putting in place a time limit that begins as soon as the defence is in receipt of the findings of a first post mortem report. I ask members to listen to that timescale carefully—I stress that it is in the bill. Most post mortems are carried out on behalf of the Crown Office. The bill would give the defence 14 clear days to instruct a post mortem on its own behalf. It would also allow a court to extend that time period multiple times, provided that good reasons were given.

It is worth noting that Scotland is unique in its approach to post mortems. I have researched the subject and have been unable to find any other legal jurisdiction in any country in the world that automatically allows a second post mortem to be held on demand by the defence. Most allow a second examination only after application has been made to a judge or a coroner and after good reasons have been provided.

The Crown Office and the Cabinet Secretary for Justice have raised objections to the bill, but I suggest that, if they consider that I have got those aspects wrong, they have not clearly understood my bill. Apart from my own, no evidence on the matter has been presented to the Justice Committee. For that reason alone, I urge members to support my bill, as that would allow the committee to take further evidence on and fully consider the concerns that have been raised by the Crown Office.

Some members have mentioned the Crown Office protocol, which I welcome. It is good, but on its own it is not enough. My bill would not alter or limit the protocol in any way; its purpose is to complement it and make it more effective. Without the bill’s provisions being in place, the defence could still delay for as long as it liked in deciding on a second post mortem. There is nothing that the Crown Office, operating through the protocol, or the courts or the Government could do to force it not to do so, simply because allowing a second post mortem to take place on demand and without limitation is currently the law of Scotland.

I do not want any repeat of what happened in 2016 to families whose children—one of them only 15 years of age—had been brutally murdered. Those families were then caused further distress by the imperfections of our uncaring post mortem system. I am asking for support for my bill tonight for the benefit of families who face a similar tragedy in the future. Voting for the bill tonight will, at the very least, allow the Justice Committee to take the vital evidence that I agree is needed, including on the point that was raised by the Crown. That would allow the Parliament to take a fully informed decision on whether to pass the bill when it reached stage 3.

Presiding Officer, the families have only one ask of us—it is to have their children back as soon as possible, to help them to grieve and to simply lay their children to rest. That is all.

The Deputy Presiding Officer:

Thank you very much. That concludes the debate on the Post-mortem Examinations (Defence Time Limit) (Scotland) Bill. It is now time to move on to the next item of business. At this point, I will hand over to the Presiding Officer.