Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (Consequential Provisions and Modifications) Order 2016

Lord Hope of Craighead Excerpts

Tuesday 22nd November 2016 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Dunlop) (Con)]

My Lords, the purpose of the Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 is to modernise the system of fatal accident inquiries—often referred to as FAIs—in Scotland. The Act is in line with the recommendations of the noble and learned Lord, Lord Cullen of Whitekirk, following his independent review of FAI legislation in 2009. The Act received Royal Assent on 14 January 2016, and the order before your Lordships is made under Section 104 of the Scotland Act 1998. The Section 104 mechanism allows for necessary or expedient legislative provision to be made by the UK Parliament in consequence of an Act of the Scottish Parliament. Certain provisions in the 2016 Act will be given effect in the rest of the UK where that is required, and will make expedient substantive legislative provision in relation to matters reserved to Westminster.

Noble Lords may be aware that fatal accident inquiries are held to establish the circumstances surrounding certain deaths occurring in Scotland. Mandatory FAIs must be held when someone dies in legal custody, or when someone dies as the result of an accident related to their work. FAIs are broadly equivalent to coroners’ inquests in England and Wales, which are independent judicial inquiries conducted into the facts surrounding a death that is sudden, unexpected or unnatural.

Among the changes brought forward by the 2016 Act is one to extend the categories of death in which it is mandatory to hold a fatal accidents inquiry in Scotland. The categories for which mandatory FAIs will be held have been extended to include deaths of children in secure accommodation and in police custody, irrespective of location. These changes relate to devolved matters and so it is right that the Scottish Parliament has legislated for them. This Section 104 order will enact changes to reserved matters to ensure they are consistent with the new Act of the Scottish Parliament. It also makes some substantive policy changes, including making clear that it will become mandatory for an FAI to be held into deaths of service personnel in the course of active duty in Scotland. Until now, this has been at the discretion of the Lord Advocate.

The order also proposes that a military death in the offshore area of the continental shelf adjacent to Scotland would require a mandatory FAI. This brings legislation in Scotland on investigations into military deaths in line with the rest of the UK to the extent that every military death in Scotland will, in future, be subject to a judicial inquiry. This new category of mandatory FAIs will be treated in similar fashion to others—for example, in relation to the power of the Lord Advocate to decide that an FAI is not required because the circumstances of death have been sufficiently established in other proceedings.

These proposed changes have taken on added significance in recent days following the death of Lance Corporal Joe Spencer of 3rd Battalion The Rifles at RAF Tain. Lance Corporal Spencer tragically died near Inverness, three weeks ago today, on Tuesday 1 November, in what the Ministry of Defence has described as a “live fire accident”. I am sure that I speak for the whole House in offering our condolences to Lance Corporal Spencer’s family, friends and colleagues. In legal terms, the mandatory requirement for a fatal accident inquiry, proposed in this order, is not retrospective. Even if the death is found to have been in the circumstances provided for, it will not apply to the death of Lance Corporal Spencer. Instead, the existing arrangements under the Fatal Accidents Act 1976 will apply, and it will be within the discretion of the Lord Advocate to rule on whether an FAI is held.

This sad incident, none the less, highlights the importance of the order and illustrates why the UK and Scottish Governments, Ministers and officials, have worked closely together to bring it about. I hope that your Lordships will agree that this collaboration represents another example of the UK Government’s commitment to work with the Scottish Government to make the devolution settlement work effectively. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I join the Minister in expressing condolence to Lance Corporal Spencer and his family for that tragic incident.

I welcome what the noble Lord has said about the introduction of a mandatory FAI in the case of servicemen who die in Scotland or outside the mainland in territorial waters. If these deaths occur in England, there is a mandatory inquest. One of the problems has been the imbalance between the mandatory system in England and Wales and the discretionary system in Scotland. It makes good sense that they should be on the same basis.

Another point worth noting is that the FAI system is very well equipped for a thorough investigation as to the reason for the death, which is not always available in inquests because of the way in which they are organised in England and Wales. It has caused problems for the Supreme Court in dealing with cases which arise overseas, such as deaths occurring during the situation in Iraq. The Scottish system is well equipped and there is no question that introducing a mandatory system provides a very sound basis for finding out exactly why these tragic incidents occurred and also making arrangements to avoid, if possible, a repetition of the same event. I welcome very much what the Minister has said.