Chamber and committees

I did. I raised the issue with the First Minister in the chamber and had no response. We followed up with a letter twice. Obviously, that First Minister has now demitted office and there is a new First Minister. It may be worth—if the committee was so minded, as Mr Choudhury suggests—trying to ascertain the current First Minister’s view of this issue as well. I imagine that it is in common with that of the Government.

Yes, I raised the matter on 8 February 2024, and I wrote on 22 March and then again on 24 April.

Thanks very much, convener, and thank you to the committee for its consideration.

The petition of my constituent—Davy Cornock, as I know him—arises from, as you have noted, convener, a very deeply personal tragedy: the loss of his son, David, who died in Thailand in 2019. That is a loss that many of us cannot begin to comprehend. That tragedy has been exacerbated by our legal system, which has failed to give Davy and his family the answers that they have long sought, as a fatal accident inquiry into David’s death never took place.

The crux of the issue appears to be the definition of “ordinarily resident”, as the convener set out. It is on that matter that Mr Cornock’s petition is seeking a change from the Scottish Government through the Parliament.

Since the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016 was passed by this Parliament, not one single fatal accident inquiry into the deaths of Scots abroad has taken place. On 8 February 2024, I raised this issue directly with the then First Minister in the chamber. He agreed that

“it is the issue of residency—in that particular case, ordinary residency—that is causing the issue”.

Regarding any potential changes to the legislation, Mr Yousaf said that he would

“take a look and speak to the Cabinet Secretary for Justice and Home Affairs on that matter.”—[Official Report, 8 February 2024; c 25-26.]

My office has followed up with the First Minister’s office on 22 March and again on 24 April but, as yet, we have received no response. I ask whether the committee might consider using its good offices to help me in that regard to elicit a response from the Cabinet Secretary for Justice and Home Affairs, who is still in post following the recent change of First Minister.

I was pleased to accompany Mr Cornock to a meeting with the Lord Advocate on 28 March. The Lord Advocate has agreed to contact the Foreign Office regarding formalising a memorandum of understanding to ensure that families are given the correct information if a family member dies abroad. There is some progress there, I am glad to say.

However, in order for the Lord Advocate to carry out a fatal accident inquiry or to instruct one into a death abroad, the issue of residency will have to be addressed. I note that the Scottish Government has made the submission that the convener references, in which it is stated that the term “ordinarily resident” has been established through case law and the Scottish Government does not intend to define the term in legislation. I will come to that in short order.

Regarding the fact that no fatal accident inquiries have taken place into deaths abroad, the Scottish Government’s submission concedes that that is the case but also notes

“that the Crown Office and Procurator Fiscal Service are able to conduct inquiries short of an FAI in relation to deaths abroad, such as the instruction of a post-mortem examination which has allowed further information to be provided to the family and given them reassurance and closure about the circumstances”.

I suggest that it would be worth the committee exploring the nature of those inquiries that are short of an FAI and the circumstances in which they might be granted. That would be very useful to my constituent. Mr Cornock’s family has certainly not had any reassurance and closure about his son’s death—very far from it, in fact.

In closing—if I can be so bold, convener, as to make some suggestions as to how the committee might consider proceeding with the petition—it is noteworthy that no FAIs have taken place into deaths of Scots abroad in the eight years since the legislation was passed. I hope that the committee will agree with me that that shows that there is a problem with the legislation and that Parliament should be considering what that is. It indicates a flaw in the system.

I appreciate the significant differences between the legal systems in Scotland, and England and Wales, as the convener set out. I suggest that the committee might seek to ascertain how many deaths abroad of people from England and Wales have been investigated in the same time period, from 2016 to the present. That might offer some ready comparison for whether the laws and procedures that we have in place are serving our constituents on a level footing to the rest of the UK.

Finally, regarding the Scottish Government’s position that “ordinarily resident” need not be defined in legislation, it might be worth the committee seeking the view of other stakeholders on this matter, such as the legal profession and perhaps Police Scotland, to understand the impact of that decision on their work in this area. If it is not the definition of that term, certainly how the term is used in our legislation and the ambiguity around it are part of the issue that is leading to a lack of justice and transparency and a lack of resolution for constituents.

It is not just Mr Cornock. I do not believe that there will be any members of the Scottish Parliament who do not have constituents who are in a similar situation, looking for answers about how a loved one died abroad. There is an issue of broad justice in this. If the committee could be implored to continue assisting my constituent in this matter, it would be of great assistance to many people in Scotland.

I will follow on from what the convener said about outcomes and whether the commissioners will be able to make change. From the Criminal Justice Committee’s work, what effect do you see the victims and witnesses commissioner having on outcomes for citizens? Can you describe your theory of change that will make things better for people? I recognise that you have been sceptical about the proposal.

That commissioner would perhaps produce a report that would come to your committee for consideration by the Parliament. Would that be right?

You will be aware that the committee is concerned by the requests for a large number of new commissioners. Your committees have been particularly involved in the proposals for a victims and witnesses commissioner and a patient safety commissioner, and we have been reflecting on the broader demands for them.

We have had a variety of evidence on the matter. Are these questions of the moment, or are there more systemic issues? In other words, are problems happening now because of austerity, lack of resources and governance issues, or are commissioners part of an architecture that is addressing more permanent systemic issues?

My final question relates to finance. Your committee acknowledged in its stage 1 report on the Patient Safety Commissioner for Scotland Bill our committee’s concerns, in our letter of 31 January, about parliamentary resource and drawing on the funds of the Scottish Parliamentary Corporate Body, but you simply noted that

“sufficient resources to the SPCB to support the work of the Commissioner”

should be handed down by the Government. Have you had any assurances from the Government that it will actually do that?

I suppose that I am talking more about their day-to-day work. This committee is concerned about the capacity of other committees to deal with the workload from the outputs of commissioners. On 30 April, Brian Plastow, who is accountable to your committee, said:

“I have been in post for three years. I have been called before the committee once in three years and that was to discuss the passing of the statutory code of practice back in 2022. In those three years, I have submitted seven reports to Parliament: two annual reports and accounts, one operational report, a code of practice and three separate assurance reviews. My expectation would have been to have been called before the Criminal Justice Committee more often than I have been”.—[Official Report, Finance and Public Administration Committee, 30 April 2024; c 14.]

I believe that he is to come to your committee in November, but does that not talk to a structural issue? I recognise that your committee is incredibly busy with legislation—not just the bill that we have been talking about but other legislation. Do you not have the capacity to work with commissioners to ensure that the good work that they do is processed effectively?

Clare Haughey, it is my understanding that the outputs of the Cumberlege review included a reasonably technical request about providing oversight on medical devices and medical interventions. Those are technical issues that Parliament more broadly does not have the specialist knowledge to understand and examine, so specialist capacity is required. You are talking more about advocacy and people not being heard or believed, so that is more about voice rather than technical capacity. To be devil’s advocate, are things such as listening to citizens and advocating on their behalf not things that parliamentarians should be doing? Do we need somebody else to do that?

On 17 January, the new First Minister, who was a member of the Criminal Justice Committee at the time, said that the commissioner would not have any teeth. He said:

“the bill says that the role of the commissioner is to “monitor compliance” with standards, “promote best practice” in relation to trauma-informed practice and “undertake and commission research”. The commissioner will not, under the existing proposal, have the power to put his or her foot down and say, “This is not acceptable.” That power is somewhere else”.—[Official Report, Criminal Justice Committee, 17 January 2024; c 69.]

That is an expression of concern that, as much as things might be said by a commissioner, they might not necessarily effect change. Is that not the First Minister’s concern?