Item 2 is consideration of the Coroners and Justice Bill, which is United Kingdom legislation. Members have received a background paper and the second legislative consent memorandum on the bill. As you will recall, Scottish ministers decided not to progress the earlier LCM that was lodged, and the LCM that we are now considering takes account of amendments that have been made to the bill at Westminster. The data-sharing provisions that concerned the committee have been deleted and provisions have been inserted on the investigation of deaths of members of the armed forces and other personnel overseas.
Following my appearance before the committee on 10 February 2009, I appear once again to promote the LCM for the UK Coroners and Justice Bill, in which three sets of provisions touch on devolved matters. Members will note that they are not quite the same as those that we discussed in February. Proposals on the European Union directive on services in the internal market and on criminal memoirs remain in the bill but, as the convener pointed out, proposals relating to information-sharing gateways have been withdrawn.
I am a little bit uncertain about the mechanics of the process. Will the fatal accident inquiry be held automatically at the sheriff court in the area where the deceased was domiciled or to which the deceased had a connection, or will it happen only on application?
My understanding is that such issues will be discussed and resolved by the Ministry of Defence and the Crown Office. Initially, it will be for the MOD to decide which cases can be dealt with appropriately here and then to discuss and decide with the Crown Office the appropriate forum for dealing with them.
Will the deceased's relatives be able to have an input into the considerations?
They will be able to input through the MOD. I understand that a filtering system operates, because relatives might have moved or because the person in question might have been stationed in an area for only a very short time. We have taken the view that each case is individual and unique and that just because someone was based in a certain area it does not necessarily follow that their families would wish an inquiry to be held there. As a result, we are happy to have some flexibility on this issue.
How does the LCM tie in with Lord Cullen's wider review of fatal accident inquiries?
It is, to some extent, tangential. Lord Cullen's review on the broader aspects of FAIs predates this legislation, although consideration of both matters has run in parallel. When Lord Cullen reports, he will, of course, have to comment on this matter, but our view is that the LCM resolves the immediate problem. As I said, it contains mechanisms to deal with circumstances that might change depending on combat zones and whatever else. Lord Cullen's review will proceed independently and separately.
I welcome the way in which the data-sharing provisions were dealt with after I had raised the original question. The subsequent crumbling of the Scottish and UK Governments on the issue has been quite gratifying.
There are a variety of reasons for that. First, given that defence matters are reserved, there could be good military reasons for the MOD wanting things to be dealt with in a particular way in some cases. We have simply come at the issue from the point of view of a Government that is trying to do what is right to limit trauma and pain for the bereaved.
When will the arrangements come into effect? Secondly, when there is disagreement between the Crown Office in Scotland and the relevant authorities in London—the chief coroner and so forth—how can an issue of significance be pressed? I am thinking of relatives in Scotland when a sole death has occurred.
On the first question, we understand that royal assent will be given by November. On the second question, we hope—as is the case with the on-going negotiations—not to have any unseemly spats. I understand that the Crown does not have the power or right to make demands as such. That said, the opportunity is there for it to indicate that difficulties may arise. There may also be instances in which the Crown takes the view that it is not appropriate for a case to be dealt with in Scotland, although that would be surprising.
I think that we all share your view on that, and the hope that you expressed earlier on the need for the process to come into practice.
The focus is on servicemen who die in combat, but there are a number of other circumstances in which the legislation might be relevant. For example, there are people who are nowhere near the scene of combat but who die in accidents—I understand that that happens quite often—or those who die while they are out of the country on training but, again, nowhere near a theatre of war. There are also medical staff who are not signed up but who are in the theatre of war doing their bit and who do not come back. Are the regulations or protocols being drawn up widely enough to cover those circumstances?
We believe that they will be wide enough. The position of the Crown and the Government has been that we do not uniformly investigate the deaths of Scottish citizens abroad, whether they have been caused by a car crash or something else. The provisions are meant to apply to combat and active service, but they are drawn in a way that we believe would allow them to be used in a wider capacity—questions around aviation, for example, have been addressed. The provisions are drawn in such a way as to provide latitude.
Once the legislation comes into force, it will be very much to the benefit of the relatives of the deceased individual. However, given that much of the pressure around holding FAIs here in Scotland has been on the basis of the backlog and the time that is required, as well as the distance and inconvenience to relatives, will the provisions be enforced only for those cases going forward—that is, those that relate to deaths that happen after the legislation comes into force—or will the Crown be able to consider and take on board cases that are sitting in the queue?
On the first question, the provisions will apply only to new situations. The backlog would otherwise be compounded. We already have a backlog, and part of the reason for Scotland having the proposed powers is to alleviate the current pressures in the coroner's department. If we were to put all cases on hold, the backlog would simply increase. The provisions will apply to situations that arise once the legislation comes in.
I am not quite sure that I understood the answer to the first question. I accept that the provisions should apply only to new cases, once the protocol or whatever it is comes into effect, but I do not quite understand how dealing with a backlog—by transferring some of the cases in the queue to Scotland—would make things worse.
It would be a question of some cases that could go to Scotland not proceeding over the next few weeks, for example, and instead being put on hold. It is not simply a matter of the legislative process being introduced in November; the Crown will require to set up the department and to ensure that the necessary experience is in place. We would be looking for a continual run-on. The likelihood is that the Crown will not be in a position to proceed until significantly into 2010. If cases have already been delayed, and if everything that was going to Scotland was put on hold, by the time that Scotland was ready there might have been a considerable increase in the backlog.
I understand what you are saying. Of course, we would not want to hold up any case because we were waiting for the Crown to get ready—that is not what I was suggesting at all. I was talking about a situation in which the system was up and running and ready to take cases, and there still being Scottish cases that had been in the queue from before November.
I assume that some of the practical discussions that are going on between the Crown and the MOD will involve attempts to alleviate the problem that is being faced in England. If we can take some of the Scottish cases, that will reduce the backlog and provide some speed for the families.
Is there power to take the earlier cases, even as an option? That seems to be what you are suggesting. However, I thought that you had said before that there was no power to take the cases that were in the queue before the commencement date.
We will need to check that. Our understanding is that, to some extent, the Crown will get the cases that the Ministry of Defence wishes to give it. As I said, we are not involved in any sort of turf war; we will do what is appropriate to alleviate the trauma for the individuals concerned. There are military decisions to be made about which avenues are appropriate and, clearly, the Crown has to be privy to those discussions.
That would be helpful. As we have no further questions, I thank you for your attendance and say merely that we all fervently hope that the legislation will be used rarely, if at all.
Meeting suspended.
On resuming—