Item 3 is an evidence session on the Inquiries into Deaths (Scotland) Bill, a member’s bill introduced by Patricia Ferguson. Members will see from their papers that the Scottish Government provided written views on the bill in advance of this evidence session.
Margaret Mitchell is back with us in her capacity as a committee member for this and the other items on the agenda—welcome back, Margaret.
I welcome to the meeting Patricia Ferguson MSP and Patrick Maguire from Thompson’s Solicitors. As usual—Patricia, you are aware of this as you have sat here before—we will go straight to questions from members.
Good morning. As is clear from your bill, delays for fatal accident inquiries are a huge problem. Can you talk a bit about your idea of the timescales and comment on the Crown Office and Procurator Fiscal Service’s intention to publish a milestone charter?
First, thank you very much, convener, for having us at the committee today.
The issue of timeframes goes to the heart of the changes that we want to see made, because we think that the balance needs to be corrected and that bereaved families and those with an interest in the possibility of a fatal accident inquiry should be central to the entire process, but they feel that they are not in that situation today. The issue that seems to generate the most concern and discussion with regard to fatal accident inquiries is the length of time that it takes for a decision to be made about whether an FAI can be held. We are probably all aware of at least some of the cases that have been talked about in the press and elsewhere in that regard.
Our view is that we need to specify a time when the Lord Advocate will formally communicate to families and those with an interest the decision that he has made or the likelihood of his decision. We are suggesting six months for that, where there have not been criminal proceedings, and three months where there have been criminal proceedings. We are not being completely rigid about that; rather, we are saying that the Lord Advocate can give an explanation as to why that is not possible.
In my personal experience, families understand that, when there are complex issues or matters that require particular kinds of investigation, it might take a while—a year, 18 months or even longer—to be able to come to the decision. However, the families want to know at an early point what the discussion is, what the hold-ups might be and why they are occurring. That is why we have said six months, but with the Lord Advocate having the option to say at that point that it will now take him a further 18 months or that he might come back at a later point and ask for another extension. It is important that the Lord Advocate’s reasons are given to those with an interest at an early stage.
11:45Having a charter is a new idea that the Crown Office has come up with and which I read with a great deal of interest. It might help. However, as far back as 2013, the then Cabinet Secretary for Justice told me in answer to a parliamentary question that the Crown Office and Procurator Fiscal Service had largely implemented all those elements of the Cullen review relevant to it and that that did not need legislation, although legislation would ultimately follow, so it seems to me that the Crown Office could have done that a long time ago.
I welcome the fact that the Crown Office has now got to that point. However, it should be underpinned by legislation to give it the credibility and importance that family members expect it to have.
The only thing that I would like to add is that the proposed charter of milestones and timescales is relevant to other aspects of this bill. There is a recognition that the current system is not fit for purpose and there is a competing bill, but we also have practices and procedures being put in place by the Crown Office and Procurator Fiscal Service, including the proposed charter. It seems that it is being said that we should rely on informal policies and procedures, rather than putting something in statute. My response to that would be that if it is already doing something and is striving to achieve the best for victims, it should have no fear about, and should embrace, putting that on a statutory footing.
We will have sight of that “charter” before stage 2, at which point the committee can take a view on whether reference might be made to having a charter in legislation—whichever bill it is—and then the charter would sit beside the legislation. That is always a possibility. At that stage we can examine how powerful and useful such a charter would be.
It is a move forward by the Crown Office, as I am sure that Patricia Ferguson would admit.
There has been movement from the Crown Office over the past couple of years. However, we are at the point where there are two bills being considered by Parliament that seek to reform or change the system and one of them suggests mandatory timeframes, underpinned by law. I have not seen the charter, so I cannot comment on how good it would be, but Patrick McGuire is absolutely right to say that, if we think that something needs to change, why not change it? Why wait for a new idea of a charter just to avoid something being laid down in law? That seems to be counterproductive.
Could you comment on Lord Cullen’s recommendation that there be an early hearing and say whether you think that would help? Would it complement your mandatory timescales?
We considered at a very early stage whether it would be possible to have some kind of early hearing, perhaps about the facts of the case, but we did not see how that could fit with the kind of inquiries that we have in Scotland. As the sheriffs pointed out when they gave evidence to the committee a couple of weeks ago, until the point at which the Lord Advocate has decided that there will be a fatal accident inquiry, they have no jurisdiction. I think that it would be against the Scotland Act 1998—it has been changed over time, but not in this area—to try and do something different in the meantime. I would honestly struggle to know who would have the jurisdiction to do that. Until such time as sheriffs are told that there is to be an FAI, they have no role. The proposal seems slightly out of sequence, although I have a lot of sympathy for the aim and the idea of having an early inquiry.
The Solicitor General for Scotland gave evidence on the opt-out in section 9(5) for fatal accident inquiries relating to industrial diseases and on relying on the discretion of the Lord Advocate. In your financial memorandum, you say that your bill would lead to only about one or two additional fatal accident inquiries per year. Why are you agin discretion?
We are absolutely not against discretion. In fact, we have made discretion a key element of the bill. However, we think that the balance has to be changed. As I said earlier, we think that the deceased individual and their family should be more part of what we do. All through the changes that we are proposing and the elements that we are introducing, we have tried to make that the case.
I will not read out what we have said about industrial diseases, but I will tell you what I think the provision should mean and does mean. In the circumstances that the conditions that have led to a particular industrial disease have not yet been explored and found, there could be a fatal accident inquiry. That could also happen if there is a new technology or process.
I know that committee members have an interest in asbestos-related diseases. We all think that we know how people contract lung disease and other illnesses through exposure to asbestos, but there is evidence in England and Wales of very young people becoming ill with diseases that are normally associated with that kind of exposure, and we do not know why that is the case. If there were to be a case like that in Scotland—we hope that there will not be—it would be possible for the Lord Advocate to decide to hold a fatal accident inquiry into that case. He would have to consider it, however. That is the important point—the onus would be on him to look into it.
From my perspective, having dealt with far too many families over the years who have lost loved ones through industrial accidents and industrial disease, it is a truism that the victims and the families who are left do not see any distinction between losing a loved one to an industrial disease and losing them to an industrial accident. At the most primary level, I view the provisions of the bill as putting those two types of victim on an entirely equal footing, treating victims of accidents and victims of industrial disease the same, and viewing those victims as the same under the law, which has not been the case until now.
Achieving that is a starting point. Thereafter, it is a matter of examining how a balance might properly be struck in the exceptions for holding inquiries. On a personal level, it comes down to the simple fact that, in the minds of the families, there is a difference between having a right to something that can be taken away with a full written explanation—which is what we are looking for in relation to both categories—and not having a right at all, until the Lord Advocate decides that the matter is sufficiently serious for there to be an FAI. For us, it is simply about striking that balance fairly.
I hear what you say, but are you in no way reassured by the Solicitor General’s evidence as to the kind of situations in which she would envisage that a fatal accident inquiry would take place? What will the practical difference be?
The practical difference is that there will be a presumption that there will be an FAI until it is decided that there will not be. The Lord Advocate would exercise that discretion. As Patrick McGuire said, it is about changing, or improving, the balance for those who are most affected by these incidents or diseases.
But the Lord Advocate would still get a discretion under section 9(5), so somewhere in the equation, the Lord Advocate is exercising a discretion.
Yes, but at the moment the Lord Advocate can exercise their discretion to hold an inquiry. We are saying that it should be the other way round—they should have to exercise their discretion not to do so and explain why they came to that conclusion. They should have to explain that they were satisfied that the matter had already been thoroughly explored elsewhere or that no additional information could be gleaned from having an inquiry at that stage.
Can I move on to the issue of the force of sheriffs’ recommendations? You will have heard the evidence from Lord Cullen and others on that point.
Sorry, Roddy—I just want to clarify this. We would have three categories: mandatory FAIs; cases where there is a presumption that there should be an FAI; and cases where it is just down to the discretion of the Lord Advocate.
No. There are only two.
There are two at the moment, but you are talking about where there would be a presumption—it would not be mandatory in those circumstances—which must be rebutted by the Lord Advocate. Am I not correct?
Not entirely. There are currently two categories.
I know that there are two at the moment, but does the bill create three?
It will be exactly the same. There will be two categories—
Mandatory and discretionary.
Indeed. Under the mandatory category, as is currently the case, the Lord Advocate may exercise their discretion not to hold an FAI if certain conditions are met—
I understand that.
We are simply expanding the mandatory category beyond accidents to industrial diseases. The factors that the Lord Advocate will take into account to determine whether—
So within these categories, there will just be a presumption. That is the difference that you outlined to Roddy Campbell. The presumption will be that there should be an FAI into a new or unexplored industrial disease unless otherwise—
Which is the case at the moment.
A different test.
Yes.
We heard evidence from Lord Cullen and others about sheriffs’ recommendations and the difficulties that would be involved were their recommendations to be legally binding. What are your comments on that?
I thought that it was very interesting that one of the arguments used was that we would be turning what was an inquisitorial process into an adversarial one. Actually, if you have ever been at one of these inquiries—I am sure that you have—you will know that they can be quite adversarial. The fact of the matter is that there will be representation on both sides and there will be argument about the facts of the case. Different cases will have different submissions and different evidence to back up any claims or assertions made. I do not think that that is a fair assessment of what we are suggesting.
However, maybe changing to that setting is the right thing to do, because at the moment there are cases in which sheriffs cannot make recommendations and, therefore, vital points are not being implemented, which may cause further loss of life or injury down the line. That is not an uncommon thing to happen.
My view is that we need to be in a position where we prevent loss of life and injury as well as find out the reasons for it. Knowing the reason is worth less—not worthless—if you cannot do anything about it. That is the situation that we are in at the moment and I would like to see that change.
When I have been at the committee, asking questions of other witnesses, I have mentioned the Bellgrove and Newton train disasters. Those are two examples. However, I have personal experience of the Stockline investigation and inquiry. That was not even an FAI—it was a hybrid inquiry. At the end of the day, the reason for that accident was that a pipe transmitting liquefied petroleum gas into a building had been buried accidentally under a car park at an earlier period and therefore could not be inspected for signs of erosion. The pipe eroded and gas leaked into the company offices. Someone switched on a light and the building exploded, with the tragic loss of nine lives.
12:00Lord Gill, who presided over that inquiry, highlighted that that was what had caused the accident and, because it was a hybrid inquiry, wrote to both secretaries of state about it. However, to my knowledge, there has been no change in legislation as a result. It cannot be the only workplace or setting where there is a buried pipe somewhere that is transmitting LPG. We really need to start properly learning lessons from such inquiries. Again, the sheriff does not have to make it a mandatory recommendation, but if the sheriff feels strongly enough about it, he or she may do that.
I would only add that, if we were to distil down one purpose for the bill, it would be to make Scotland safer, not just in industrial settings, and to ensure that, in any incident from which lessons can be drawn, those lessons are drawn and steps are taken to make things safer. We believe that the only way in which that can properly be achieved is by going beyond simply recommendations and making them enforceable.
It came through clearly in the responses to the consultation document that all those who were in favour of the sheriff’s recommendations becoming enforceable, such as trade unions, supported that strongly because they saw it as an important objective to be achieved. To the contrary, the objections of people who expressed less enthusiasm were of a more technical nature. We look at the big picture—the primary purpose—and believe that, if the bill is to do anything, it should be to make Scotland safer, which would be achieved if recommendations were enforceable.
I hear what you say, but would you agree that, if we were to adopt that line, the bill would, in broad terms, need to be much more radical and we would require a complete revamp of the existing system?
I think that the bill provides a complete revamp of the existing system. We have been very careful. We have not called it the “Fatal Accident Inquiry (Scotland) Bill”; we have called it the Inquiries into Deaths (Scotland) Bill, because we think that what we are proposing is as radical as you can be with a member’s bill, given that there are limitations on what an individual member can do. We have tried to be as radical as possible, starting with Lord Cullen’s recommendations and building on those to get to the point at which we can, as Patrick McGuire says, make Scotland a safer place.
On the issue of deaths while in legal custody, you seem to go a bit wider than the Government bill, which, for example, does not extend to a child who is detained in secure accommodation. Do you think that your proposals are more in line with Lord Cullen’s original recommendations?
Yes. The proposals are also based on the consultation exercise, where the point was made to us quite forcibly that certain areas need to be covered. It is important that we regard such unfortunate and tragic circumstances as worthy of this kind of inquiry. I absolutely think that the bill is more in the spirit of Lord Cullen’s suggestions.
We are also conscious that some of the tribunals and investigations that can be held into some categories of deaths, particularly on the mental health side of the issue, do not really conform to the provisions of the ECHR. We were keen to try to offer an alternative that would conform and would give more opportunity for proper investigation of these kinds of deaths.
Evidence that we took at stage 1 of the Government’s bill suggested that there could be instances in which the cause of death is fairly obvious and a fatal accident inquiry is not really required because, for example, the person died in secure accommodation. How is that reflected in your bill?
As with any other FAI, at the end of the day, the Lord Advocate can use a certain amount of discretion. We expect that he would use that discretion where it was obvious that the death had been the result of natural causes or where a post mortem had confirmed that, which is often the case with other deaths, too.
How does your bill sit with the Government’s bill? Is it an alternative? Could we have both? Does it amend the Government’s bill or do we have to have one or the other?
My bill came out of some frustration on my part about the slow pace at which Lord Cullen’s recommendations were being implemented. The recommendations have been on the table since 2011, but only now, in 2015, has a bill resulting from them been introduced. I tried to pursue that through the usual process of questions and answers, but it seemed to me that we were not getting very far. That is why I spoke to Patrick McGuire about what we could do to push it along. We had a shared experience of the Stockline inquiry and the disaster itself.
We published a draft bill three—or it might even have been four—years ago because we felt that that was important. It is not normal to publish a draft bill at the point at which you are issuing a consultation, but because it was technical, it proposed change and it was about legal matters, we felt that it was important to issue the draft bill. I was quite intrigued by the comment in the Government’s response that we replicate certain sections of its bill. Actually, I think that the Government has replicated many sections of ours. We will take that as flattery and be pleased about it.
My bill undoubtedly seeks to go further than the Government’s bill. It is a matter of judgment whether the two bills should go through separately or whether there need to be amendments to one or the other to bring the two closer. We have said all along that we are open to discussion with the Government, and we have had about four meetings with various Government ministers. Although we have common ground on much of the territory that we and the Government are looking at, there are some areas where we think that the Government is not going far enough. I would want to pursue those areas to the nth degree.
I echo all of that. It is entirely a matter for the member to decide whether she wishes to continue to pursue the bill. From a technical perspective, my view is that she can certainly do so. To refer to Roderick Campbell’s point, I add that we believe that the bill is radical. It does things far more radically than the Scottish Government’s bill and it will have a more profound impact on the safety of people in Scotland than the Government’s bill. From a technical perspective, it is telling that, standing orders notwithstanding, the Parliamentary Bureau agreed that the bill could go forward because it is so different.
Echoing Patricia Ferguson’s point, I note that the inquiries that are set out in the bill are very different from those that are dealt with by the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 and the Scottish Government’s bill. That is why the bill is named as it is—it is different and, importantly, it will do something different and will therefore make a difference.
The Government bill could be amended to be a lot more like yours. Is that a possibility as far as you are concerned?
I am not sure whether the scope of the Government’s bill would lend itself to as much amendment as I would like. That would have to be tested with the parliamentary authorities. As Patrick McGuire said, the fact that I was allowed to introduce my bill even though the Scottish Government had its own bill suggests that the two are sufficiently different. I am not sure whether there is enough similarity between the proposals to allow the Scottish Government bill to be amended as radically as it would need to be to suit my purpose. I would need to take guidance on that from the parliamentary authorities.
I do not know whether you have had sight of the correspondence from the Scottish Government dated 4 June, which takes 10 pages to take what many would consider to be a very negative approach to a lot of your recommendations. I want to pick up on one in particular, which is the legal enforceability of the sheriff’s recommendations.
The committee heard some compelling evidence from the families against corporate killers network about the implications of delay. Something had been highlighted as being responsible for causing a death, and several other deaths ensued as a result of a failure to act. Public perception is important and I take the view that it undermines the system if a sheriff’s recommendations are not acted on. However, surely you recognise that, if many issues are about health and safety and that remains a reserved issue, there will be challenges around that.
Yes. We had sight of the Scottish Government letter only recently, so we have not had a chance to properly digest it. My first assessment would be that it is not nearly as hostile as the consultation on the Government bill was in relation to my bill—perhaps there is a bit of rapprochement there, which would be nice.
You are right to highlight the problem with delays. I have a genuine concern that, if a death relates to an issue around an industrial practice and four or five years pass before there is a fatal accident inquiry that discovers that there was a problem with that way of working, those are four or five years in which we have not been able to act on what has come to light and other people may have been exposed to danger or injured or killed as a result of our not moving on. Delay is a contributory factor in that progression.
I understand what you say about the Health and Safety Executive. The fact that it is reserved is undoubtedly an issue, as is the case with a number of other aspects of both bills, because we can put into any bill only what is legally competent. That is what we have tried to do. We have tested that to the limits in a number of areas, which is partly why the bill was introduced rather later than I hoped; we tried hard to ensure that, where there was an issue of competence, we tested it as far as we could.
Ultimately, we have to make the bill compliant and that is what we have done. There is not much that we can do about that problem. However, we can make sure that lessons are learned, that matters are explored and that, where the sheriff wants to make a recommendation and can do so within devolved competences, they have the power to do that. It is about giving people as much power as we can in the current situation.
We heard from someone from the Health and Safety Executive. I do not recall how I framed the question, but I gained the impression that there is no unwillingness to act if necessary. Where is the problem? Do protocols need to be in place? Is there something short of something that is legally binding that would still work?
We have looked at that and argued back and forward. I do not think that there is a way round it without including legal enforceability. The HSE is very good. It will help wherever it can and it is proactive about many issues. It prevents deaths and accidents that might otherwise have been the subjects of FAIs. It does what it can, but if we consider that the proportion of deaths in industrial incidents in Scotland is so much higher than that in the rest of the UK, it is clear that we have an obligation to do as much as we possibly can. By making the sheriff’s recommendations enforceable, we can help with that process and make some progress.
12:15
I agree with everything that Patricia Ferguson has said. The HSE does everything that it can, but it is extremely stretched, especially in this time of austerity.
The issue is more closely allied to the problem that is section 69 of the Enterprise and Regulatory Reform Act 2013, which came from Westminster—God knows what will be next. The statistics show that the HSE is only able—I use that word deliberately, because it is about resources—to prosecute in 0.5 per cent of breaches of health and safety regulations, so we do not think that it is enough to rely only on the HSE.
We recognise the issue with matters that are reserved under the Scotland Act 1998, and we have reflected that—as we have had to do—in section 25(5), where we recognise that the sheriff’s recommendations as they relate to reserved matters, including health and safety regulations, cannot be enforceable. However, many other recommendations will be enforceable, and they could make a difference. As Mr Finnie said, perception matters, and I think that, when it is clear to people that they will be prosecuted if they do not follow through on the recommendations, we will certainly see things change.
The bill provides a framework so that, when health and safety is devolved to the Scottish Parliament—which is something that everybody in the Scottish Parliament would now embrace, although perhaps not this time round—we will be able to make a slight amendment to the legislation and those recommendations will also be enforceable.
You mentioned that it is a public safety issue. Whose portfolio should it come under? Would it be Mr Wheelhouse’s portfolio? Should the Government be more proactive, whichever party that is?
Yes. Public safety should be one of the single biggest priorities for any Government.
Would it be appropriate for sheriffs to be involved in the process, in terms of monitoring and holding hearings, after the FAI has finished? Will you talk a bit more about that?
Under natural justice and the ECHR, if we say that a sheriff’s findings are enforceable, we have to offer a right of appeal to those against whom a finding might be made, and we do that in the bill. Similarly, it is only right that the sheriff can set a timeframe against which the recommendation must be implemented and can call back the person or organisation to whom the recommendation was made and find out what action has been taken to implement it. At that point, the person or organisation might say that it has not been possible to implement the recommendation in that timeframe but that they can do it in another six months or a year and that, in the meantime, they can give details of the progress that has been made. It is only right for the sheriff to be able to review that, listen to what has been said and take whatever action he or she thinks appropriate at that point. Those two sides of the exercise need to be in place.
Have you quantified the workload that that might generate and the impact that it might have on other sheriff court business?
There is a separate issue about the resourcing of fatal accident inquiries. I have been told that a problem that sometimes occurs is that there is nowhere appropriate for the inquiry to be held; one week of the inquiry might be held in one location and another week in another location. One of the jobs that the Crown Office and Procurator Fiscal Service might want to do is to look at all of that.
In the Stockline inquiry, a community hall that had been used to house the people who were waiting for news of their loved ones was in part converted into an inquiry venue, and it was also subsequently used for the Penrose inquiry. It is possible to make small adaptations to venues to make them appropriate. Not enough of that happens and there is too much reliance on using Crown Office and Procurator Fiscal Service premises. Looking at all of that—whether there is a way of making the process of FAIs more streamlined so that they happen more smoothly—would be part of the discussion.
I entirely agree with the member that there will be a cost and that sheriffs will be spending more time, particularly when the bill first passes into law. I would say that that cost is well worth paying, for two reasons. First, it will bring to book people who flaunt a sheriff’s recommendations, and secondly, that will start to have an impact on behaviour.
At the heart of the part of the bill about the enforcement of recommendations, with sheriffs keeping an eye on things and bringing a prosecution if that is necessary, is the changing of behaviour. After the first, second or, perhaps, third prosecution that is brought under the bill—no more than that—word will filter out that people who have flaunted the recommendations have been brought to book, and we will start to see behaviour changing. We hope that the flaunting of recommendations will become a thing of the past, and any associated cost is a price worth paying.
Taking my example of the Bellgrove and Newton train disasters, I add that, if the initial recommendations had been enforced, that would have prevented a fatal accident and reduced the number of fatal accident inquiries that were required. In the longer term, we hope that the bill will reduce the number of FAIs that have to be held because lessons will be learned and action will be taken to ensure that there are no similar incidents in the future.
I have a couple of points to raise about the sheriff’s recommendations being enforceable. That is an attractive idea and I understand why it has been proposed, but difficulties arise.
One difficulty, which Patricia Ferguson referred to in one of her answers, is that many FAIs are already adversarial, so what difference would the proposal make? In my view, making the sheriff’s recommendations enforceable would make the process more adversarial. Not all FAIs are adversarial, but the measure might change the culture and nature of all FAIs. I know that the bill is on inquiries into deaths but, if that proposal proceeded, it would make inquiries—whatever they were called—more adversarial.
The second point concerns what looks like a lengthy and pretty cumbersome appellate procedure. Not only is it long—it would involve going from the sheriff to the sheriff principal, possibly from the sheriff principal to the Court of Session and, you never know, going on from there to the Supreme Court—but, while the procedure is being followed, recommendations are suspended. The procedure would be cumbersome and might be counterproductive to what the bill wants to achieve.
Making the recommendations enforceable seems to be a really good idea, but it is difficult to sort all the issues that the sheriffs raised and all the other issues without ending up with something that is not what was wanted. The appellate procedure could take years.
The corollary of that is that the recommendations could ultimately be enforced, whereas at the moment that is not the case.
I am making the point that the recommendation would be suspended and could not be enforced while the appellate procedure was going through. It is not that I disagree with your purpose, but I ask whether that would be helpful. More and more things are going as far as the Supreme Court and some cases might go to the European Court of Justice. There are issues that extend beyond our jurisdiction—we just need to look at the battle over minimum unit pricing to see how things can go on, long past legislation.
At worst, the issues would be in the public eye. There would be an onus on the person against whom the recommendations were made to consider that. Ultimately, the opportunity would arise to bring the recommendation to the fore and to give it the force of law.
There is a balance of opportunities. Either nothing is done—things are left as they are and the sheriff’s recommendations have no force—or we develop an appeals process, which is needed because of natural justice and all the other things that we need to think about. That is my way of looking at the matter.
Judicial review is also thrown into the pot, if a party is subject to a recommendation but they knew nothing about the inquiry or FAI going ahead. The extent of legal battles that could follow becomes almost Dickensian.
I hope not.
I echo Patricia Ferguson’s comment that this comes down to a straight choice. Do we or do we not want a system where recommendations are enforceable? If we do, that comes with a price.
I do not accept that the bill will result in appeals and judicial reviews left, right and centre. I am confident that the appeals process will be used very much as the exception rather than the rule.
On what basis?
On the basis that—
If I represented a major company with pots of money and I did not wish to comply with an enforceable sheriff’s recommendation, whatever it was—it could be a minor or major recommendation, but it would have ramifications for my business—I might fight it, like Donald Trump might do, up hill and down dale until the end of the road. At the end of the day, the recommendation would have no force—or it would sit as it would now, as a recommendation that has been challenged, which it was not previously.
The Parliament has a proud history of not being browbeaten by big business. There is no finer example of that than the pleural plaques legislation—the Damages (Asbestos-related Conditions) (Scotland) Act 2009—which was appealed all the way to the UK Supreme Court. The Supreme Court put big business and the insurance industry in their place.
If a company such as the one that you described appealed a matter all the way, the recommendation would indeed, pro tem, be on ice. However, if we assume that the court—whichever one the case got to—supported the sheriff’s recommendations, the recommendations would become enforceable at that point.
Companies would have a big choice. An appeal would not kill the recommendation; it would delay it coming into force. When it came into force, it would be a worthwhile exercise.
Prior to that, if the recommendation is not enforceable—although enforceability has attractions—it is not able to be challenged in the same way as one that has been made enforceable, which can be challenged in litigation through all the courts. The sheriff’s recommendation could be challenged thoroughly in such a case, so it could have even less force.
The alternative, if the recommendation is not enforceable, is that it can be ignored.
I appreciate that. It is not easy to cure this; I am just saying that I see difficulties.
The situation of a recommendation being ignored is what we are trying to avoid. Even if a recommendation were appealed, ultimately it would have the additional force of having been taken through a process, and it would be all the more remarkable for that.
We are not suggesting that every FAI will result in the sheriff making such enforceable recommendations. The sheriff might wish to highlight something and draw something to someone’s or an organisation’s attention. They might recommend that the Scottish Government introduces legislation. A sheriff could do a range of things in the current situation.
When the sheriff’s view is that recommendations that they can make could make a difference and could prevent incidents or accidents from arising in the future, they will have the right to make those recommendations. As Patrick McGuire and I have said, that will ultimately be challengeable. To be frank, there is not very much that any of us can do about that. In the end, the choice is between something that might be challenged and something that might be ignored. I come down on the side of the thing that might be challenged.
The companies that the convener painted a picture of, which would run an appeal all the way, are undoubtedly the same companies that would ignore the recommendations anyway. All paths lead to the same result except that, ultimately, we hope that the court would support the sheriff’s recommendation.
I will pick up on the comment, which I hope would apply only for a period, about health and safety being reserved. There would be no enforceable recommendations in relation to health and safety matters, so that perhaps removes a contentious aspect where there might be appeals.
12:30
Patricia Ferguson has gone a long way towards addressing the point. Section 22 enables the sheriff to make recommendations, but it does not mean that every recommendation or statement that the sheriff may wish to make about the results of an inquiry has to be legally enforceable. It is only if the sheriff believes that a recommendation ought to be legally enforceable that it would be.
That is absolutely right. We have endeavoured as much as we possibly can to allow flexibility. We recognise that there are FAIs and there are FAIs. Some are on weighty and serious matters. All of them deal with a serious issue, in that they involve the death of one or more individuals, but the outcomes, the recommendations and the decisions that might follow vary according to the circumstances. We have been at pains to build in flexibility so that we do not end up taking a one-size-fits-all approach.
I can see grounds for dispute. Somebody who was making a challenge could ask why one recommendation was made enforceable when they think that it ought not to be.
This is difficult—for me and for some of our witnesses, who see the laudable purpose of your bill. It is a matter of finding a way not to create unintended consequences that take away from the purpose. I do not know whether I have got there yet.
I was wondering about recommendations being enforceable on third parties. I think that Patricia Ferguson spoke about an LPG pipe being buried underground. That is the kind of area that I work in, and I suspect that the problem was not that the pipe was buried underground but that it was not protected so as to be placed underground. If a recommendation was enforceable in such a case, it could be picked up by the Health and Safety Executive but, when it comes to a third party in some other place, I find it difficult to believe that it would be possible to stop LPG pipes being buried. How would the proposed provisions kick in? A third party that was not directly involved in the case might challenge the recommendation.
I am not sure that getting into the technicalities of that example helps us, but my recollection of the Stockline inquiry—Patrick McGuire will be able to correct me if I am wrong—is that it was entirely about the pipe being buried underground, because there was already guidance, if not legislation, to say that such pipes should not be buried underground. The fact that the pipe had been buried at some point was relevant. That had been done accidentally, not deliberately. The level of a car park was raised, and the pipe was tarmacked over and forgotten about, basically. That is my recollection of that point.
From memory, I believe that there were disputes about who was responsible for that, about who should have been responsible for ensuring that that situation did not arise and about who was responsible for considering the whole LPG issue. Those disputes had been discussed elsewhere, because a criminal case preceded the inquiry. In the end, the two companies that were responsible were fined in court.
As I said, I am not sure that that case helps us to progress the issue that you are asking about.
I am speaking more about how an enforceable recommendation from a sheriff impacts on a third party that is not involved in the case. It is not always the case that a safety measure in one location is adhered to somewhere else. The measure might not apply because of a particular situation.
We gave the issue quite a lot of thought and I hope that it is sufficiently covered in the bill. There are two stages to a recommendation becoming enforceable and, if we take a step back, there could be a third stage.
I assume that, in your question, the people involved are truly a third party. The reality is that parties other than the deceased’s relatives and employer can be brought into inquiries and are allowed to take part fully. It is perhaps slightly distracting but, to use Stockline as an example, Johnston Oils was a party throughout the inquiry and was able to lead evidence and cross-examine witnesses. There is an opportunity for other parties to be involved and therefore to make submissions on whether recommendations should be made, even if they are truly third parties that have not been involved at all.
The first stage would be for the sheriff to make recommendations—at that point they would be no more than recommendations—that went to the third party. Under the bill, the third party would have the opportunity to respond. If the sheriff believed that the recommendations were not being sufficiently followed through, the third party would be asked to explain itself and at that stage it would no doubt make the points that Mr Paterson just raised. Only at that point, if the sheriff was not convinced by the argument, would he or she go to the point of making the recommendation enforceable. That would happen seldom. We drafted the bill carefully to ensure that those safeguards were in place.
I will go back to the format that recommendations might take. There seems to be a perception, which is followed through in the minister’s response that I mentioned earlier, that there would be other difficulties in making the sheriff’s recommendations legally binding, such as Lord Cullen’s suggestion that that is currently unconstitutional.
The minister said:
“Recommendations are made as to how deaths in similar circumstances may be avoided in the future.”
We all understand that that is the recommendations’ purpose. He continued:
“They do not bestow legal rights or obligations on anyone. A sheriff cannot be considered to be an expert in all fields”—
I think that we agree with that—
“and it is surely better that a sheriff’s recommendations are considered by the regulatory and safety bodies in the relevant field”.
Is it your understanding that the sheriff’s recommendations would be based on evidence that he had taken from those very bodies and that there would be not a layperson’s notion but an informed and evidenced recommendation?
Absolutely. We have been at pains to make the point that that is exactly what would happen.
A sheriff’s determination—to use the term in the broadest sense—has to be rational, which is to say that it has to be based on the evidence that was led. It would be utterly irrational for a sheriff to make recommendations that were based on something that was not led in evidence. I do not accept that criticism at all.
Patricia Ferguson said that the sheriff could recommend that the Scottish Government should introduce legislation, but she also said that a third party could be called to explain why it was not taking on the sheriff’s recommendation. Is there a constitutional issue about a sheriff having such a power? Do sheriffs really want to have the power to ask the Government to introduce legislation and to take on a Government that has not followed their recommendations?
I was not suggesting that one of the enforceable actions that a sheriff might suggest would be that the Government should legislate. I was making the point that, with or without my bill, a sheriff could recommend anything that they thought was relevant. Right now, a sheriff could say to the Scottish Government, “I think that you should do this.” However, there is no onus on the Government to take that on board at all.
Should there be an onus on the Government if the sheriff wants to make such a recommendation?
When there is an inquiry of the kind that I have seen take place under the current FAI legislation—never mind anything that might come in the future—the Government should take seriously any recommendation that comes from the sheriff who heard the inquiry. The sheriff will have considered the matter deeply and, if they go to the length of suggesting that the Scottish Government or anyone else should take action, they must feel strongly about it.
The sheriff might or might not want to do this, but the question is whether they should have the power to go back to the Government and ask it to take forward the recommendation. Is that not a constitutional problem?
I see no constitutional problem with going back to the Scottish Government and asking whether it will legislate. I can see that forcing the Scottish Government to legislate could be a separation of powers issue, but that is not what the bill recommends. I have no difficulty with asking why the Government is not legislating.
I am not quite clear about what sections 34(2)(j) and 34(2)(k) mean. Section 34(1) starts:
“The Court of Session may by act of sederunt make provision for or about—”
and section 34(2)(j) talks about
“the financial assistance which may be given, on such conditions as may be specified in the rules, to enable such representation to be given”.
Is that to do with legal aid? Section 34(2)(k) refers to
“the expenses payable to persons attending inquiry proceedings”.
I think that the expenses bit is fine, but I do not understand the bit about financial assistance.
The section is no more than an enabling provision that allows rules to be created whereby, if it was thought to be politically expedient, parties to an FAI could receive expenses so that they could be legally represented or recover costs for appearing. That is similar to legal aid, but it does not come under the legal aid provisions. It is more closely aligned to the provisions that exist under the rules on public inquiries, which include procedures whereby a party to a public inquiry can be legally represented.
Who pays for that?
The state would pay.
Through what? Would it pay through the legal aid system? How would it pay? I do not understand.
That is exactly why the section is no more than an enabling provision. The bill does not say that the Scottish Government must go down that road; it simply creates a framework whereby, if it was considered politically expedient to do so—
Would legal aid rules have to be changed?
That was not done for the Inquiries Act 2005 or the inquiry rules, which is why the bill follows that analogy. The money would be state money but it need not come out of legal aid funds.
I just do not know what pot the money would come out of.
It would come from where any other money that the Government commits comes from.
There would be a special pot of money.
That would be a political decision.
I was just testing, because I did not understand.
The money would come from the same pot as money for inquiries comes from at the moment.
A fund would be created.
It is already there.
I just wanted to know about that and whether there would be legal aid.
The committee’s questions are finished, so I thank you for your evidence.
12:43 Meeting continued in private until 12:52.Previous
Apologies (Scotland) Bill: Stage 1