Petitions
Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (PE767)
Good morning, ladies and gentlemen. I remind everyone to switch off their mobile phones. I have received no apologies—we have once again a full turnout of members.
The first item on the agenda is consideration of petitions. PE767 is by Norman Dunning, on behalf of Enable, and calls on the Scottish Parliament to urge the Scottish Executive to review the operation and effectiveness of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. As members will recall, we have considered this petition before. Since then, we have received correspondence from the Cabinet Secretary for Justice.
I draw members' attention to the options listed in paragraph 9 of paper J/S3/07/13/1. Are there any comments?
Like other members, I have looked carefully at the clerk's paper and the cabinet secretary's response. However, I feel that certain points still need to be developed and questions answered fully.
First, as we all know, legal aid presents no problems for people who either have no means or are very rich. However, those of middling means will find that their costs, which might run to £20,000 or £30,000, are insupportable. There is no real support for those families and individuals; moreover, they do not receive any victim support money, which is another outstanding issue.
Secondly, as far as delays are concerned, I believe that the cabinet secretary says that most FAIs are held quickly. That is true, but only when they are not contested. My information is that when a case is contested it might drag on and on with delays of up to three or four years because of adjournments.
Another issue that needs to be addressed is the fact that, at a cost of perhaps more than £100,000, these inquiries are also hugely expensive to the taxpayer.
I acknowledge the cabinet secretary's comment that FAI recommendations will be monitored through postings on a website. However, such a step is small and quite insignificant and is certainly not what the petitioners were looking for. Such recommendations need to be monitored in some proper way by the justice department.
I am not content with the suggestion that we close the petition, as I think that there are more issues to be considered, some of which I have outlined. We might want to write to the cabinet secretary with those supplementary questions.
If we agree to send that letter but receive a similar response from the cabinet secretary, would it be possible for us to refer the matter of the review of the operation of the 1976 act to the Scottish Law Commission? Perhaps the clerks could advise us whether it would be within our power to do so. We should consider doing that, given that the law has been on the statute books without a review.
That point is well made. One difficulty that we would have is that it would not be possible for us to refer the matter directly to the Scottish Law Commission. However, we could recommend to the Cabinet Secretary for Justice that that be done. Bill Butler has made some sound points that are worth following up.
I find myself largely in agreement with Bill Butler. Members might be aware that I have intimated a wish to introduce a member's bill that would touch on FAIs, in the sense that it would deal with the deaths of service personnel overseas. Currently, their families have to engage with the coroners court process in England. In some cases, there can be a delay of anything up to five years. I am investigating that situation at the moment and I thought that I had better preface my comments by saying that I have an on-going interest in the wider FAI issue.
As a constituency member, I have had a couple of quite distressing cases involving families who have felt let down by the FAI process and the way in which they have been dealt with.
I would like to clarify something on page 3 of the cabinet secretary's letter to us. He says:
"Inquiries are mandatory in cases of death as a result of an accident in the course of employment or in legal custody."
Of course, that is true only if there is no other legal case. If there is another legal case, fiscals will often decide not to hold an FAI—even if that is against the wishes of the family. It would be useful to clarify that point with the cabinet secretary, just so that we have the full picture.
There is an issue about how relatives are dealt with. I note that the cabinet secretary says that that has been the subject of training, but I think that we could do with a bit more information about what that training has entailed.
I share Bill Butler's concerns about the situation in relation to FAIs, legal aid and victim support. I think that the response on the monitoring of recommendations does not go far enough. Therefore, I am minded to suggest that we keep the petition open and ask the cabinet secretary about certain points.
Next year, we will probably face a much tighter business programme than we have had to date—as I am sure you are well aware, convener—but I would prefer us to keep the petition open, pending consideration of the work programme and any further response from the cabinet secretary.
Again, there is not much that I would disagree with in those words. I should underline the fact that the Crown would be inhibited in the event of a fatal accident inquiry and a prosecution coinciding. Clearly, the Crown could not hold an FAI if the evidence that would be heard during the FAI would be largely identical to that which would be heard in, for example, a murder trial, as that could be prejudicial.
If I detect the mood of the committee correctly, I think that our view is that we should keep the petition open. Members will recollect that, before the meeting, we discussed informally whether the issue raised in the petition might be worthy of inquiry, in connection with a wider issue, when the time becomes available.
I suggest that, in the meantime, we keep the petition open and write to the cabinet secretary in line with what Bill Butler said. Once we have received a reply, we can revisit the petition with a view to taking any further action that we consider necessary. Is that agreed?
Members indicated agreement.
Can we also ask for more information about the extra training that has been undertaken in relation to relatives?
That is fine. We will incorporate all those comments and questions into the letter that we send to the cabinet secretary.
Abusive Parents (PE997)
PE997 is by Peter Cox, on behalf of the Mothers for Justice Campaign, and calls on the Scottish Parliament to urge the Scottish Executive to provide greater protection to the children and partners of abusive parents.
The petition has been considered by the committee before. Since members last considered it, correspondence has been received from the Cabinet Secretary for Justice and Sheriff Frank Crowe, who is in charge of the Judicial Studies Committee. I invite members to consider the paper from the clerk, which is informed by the content of that correspondence.
It is perhaps worth reflecting on the fact that some of the issues have already been dealt with. All reference to "access" and "custody" under the Children (Scotland) Act 1995 has been changed—modern usage is "contact" and "residence". We have seen the correspondence; do committee members have any comments?
I am not sure that I am satisfied with the response from Sheriff Crowe. His letter says that sheriffs show an enthusiastic approach to training, but I would have welcomed a more specific answer. He could have given the percentage of sheriffs who take part in training programmes rather than just say that they are enthusiastic. The petitioner is making the point that some individuals—children in particular—have had poor experiences. We have to follow that through properly and ask what percentage of sheriffs take up training at the moment.
Neither Sheriff Crowe nor the cabinet secretary really deals with the question whether training should be compulsory. They refer to training, but we need them to be more specific. Both the cabinet secretary and Sheriff Crowe should be straight with the petitioner and say whether they think that compulsory training is a good idea. I appreciate that legislation is imminent, but it would be helpful for people to be clear about where they stand. I personally think that a compulsory element of training would not be a bad thing, particularly when dealing with children, and I do not see why people cannot commit themselves either way.
We must also ensure that we deal with all elements of the petition. In his letter, the cabinet secretary refers specifically to issues relating to reporters, but does not discuss the other elements that were raised with him. I am not sure whether that is because of what we asked him in our letter—I hope that he was asked to respond to the petition. I just want us to reach a situation in which the petitioner has had all their questions answered and people are clear about where they stand.
The legislation that Paul Martin refers to is the proposed judiciary bill, which is scheduled to come before us during the third week in January. Under that legislation, responsibility for training will pass to the Lord President of the Court of Session. It will be open to us to ensure that the legislation is formulated in such a way that the training referred to in the petition will be compulsory.
That is where I am coming from—indeed, I could have said something along the same lines about the first petition.
It is probably a good idea to consider which elements of training should be compulsory. Most other professions would recognise that specialist training is required in areas of specialisation. Clearly, we cannot address that issue now as we cannot consider the particulars until we get there, but we ought to recognise that training will be an important issue.
I would like to keep the petition open because of the legislation that is to be introduced. The petition is about civil actions, and the review of civil processes will report back next year. In my opinion, it will be worth reconsidering the petition then so that we can consider how children who have been abused might best be served.
If I judge the mood of the committee correctly, I think that our view is that we will keep the petition open and reconsider it when we receive the appropriate legislation. We will then be able to consider how that legislation, once enacted, might answer the questions that are raised in the petition. Do members agree that we should go along those lines?
Members indicated agreement.