Official Report 364KB pdf
The purpose of this item is for the committee to consider the delegated powers in the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill at stage 1. Members have seen the delegated powers memorandum and the briefing paper.
The committee is invited to agree the questions that it wishes to raise with the Scottish Government on the delegated powers in the bill. It is suggested that those questions are raised in written correspondence. The committee will have the opportunity to consider the responses at a future meeting before the draft report is considered.
Section 34(1) confers wide powers on the Court of Session to make rules by act of sederunt to regulate: first, the practice and procedure to be followed at fatal accident inquiries in the sheriff court; and, secondly, matters that are incidental or ancillary to such FAIs. Section 7 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 currently confers power on the Lord Advocate to make rules about FAIs. Section 34 of the bill widens those rule-making powers and confers them on the Court of Session.
Section 34(3) provides that
“An act of sederunt under subsection (1) may make ... incidental, supplemental, consequential, transitional, transitory or saving provision”
and
“different provision for different purposes.”
In the context of providing a broad discretion to the court to regulate inquiry practice and procedure without parliamentary interference, but also to respect matters properly reserved to the legislature and ministers, does the committee agree to ask the Scottish ministers to explain: first, the limits of the power in section 34(1)(b) to make provision for or about any matter incidental or ancillary to an inquiry; secondly, whether such power permits the court to make provision in relation to matters other than procedure and practice in inquiry proceedings, including issues of substance relating to inquiry proceedings; and thirdly, the interaction between the power in section 34(1)(b) and the power in section 34(3), and in particular why the court requires the power in section 34(3) to make provision that is incidental or supplemental to matters that are in themselves incidental or ancillary to inquiries?
We have had some of this discussion previously. I am content to allow this to go through without too much comment, but I suspect that this is the sort of thing that Parliament in future—our successors in office—should tuck away as perhaps being suitable for post-legislative scrutiny once it has seen how the legislation pans out and how the powers that we are highlighting are exercised in practice. I put that on the record for future generations.
Do we agree to ask those questions?
Members indicated agreement.