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

Volume 776: debated on Tuesday 22 November 2016

Motion to Approve

Moved by

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.

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.

My Lords, I add my condolences to those of the Minister and the noble and learned Lord, Lord Hope.

I welcome the proposed changes and the opportunity taken in the Section 104 order to extend the categories where a mandatory fatal accident inquiry is carried out. The Minister will be aware that there has been concern for some time because the bodies of service personnel who are killed not in the circumstances he described but in foreign parts are generally repatriated to England, and therefore the jurisdiction has been an English jurisdiction, albeit that the families of the servicemen involved may well be in Scotland. Concern has been expressed about this and I know that efforts have been made to resolve it. I have lost track of whether any progress has been made. Will the Minister take this opportunity to indicate what the position is?

My Lords, I add my condolences to those expressed to the family of Lance Corporal Joe Spencer. It befits this House that such condolences are offered.

I thank the Minister for the usual clarity with which he explained the order, which we welcome. The legislation makes much-needed changes to update and improve the system of FAIs. These are tragic cases and are incredibly difficult for the families affected. It is right that we should do everything we can to establish what happened to their loved one, and to make sure that lessons are learned for the future.

The changes made by the 2016 Act go some way to improve the system. The Cullen review made its recommendations seven years ago now, so it is welcome that we have reached this point of action. There has been a wait to see this system updated. This order allows the 2016 Act to be implemented in full, so we are happy to lend it our support. As has been mentioned, particularly welcome are the provisions on the death of military service personnel. This issue has been made painfully resonant in the past few weeks by the tragic death of Lance Corporal Spencer. We again send our thoughts and condolences to his family and friends.

I thank the noble and learned Lord, Lord Hope of Craighead, for the specific, experienced point of view he brought to this brief debate. I echo the words of the Minister that this UK Parliament stands ready, as I think it always has, to make devolution work not only in Scotland but in the other devolved Assemblies in the country.

My Lords, I thank all noble Lords who have taken part in this short debate for their contributions and for their support for this order.

I very much agree with what the noble and learned Lord, Lord Hope, said about the system in Scotland being well equipped to deal with these inquiries.

To pick up the point made by the noble and learned Lord, Lord Wallace, the law on service personnel dying abroad has been re-enacted as Section 7 of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016. I think I am right in saying that, where a death occurs abroad and the body is repatriated, the Lord Advocate has discretion to launch an inquiry into such a death. If I have not covered his point fully, I am happy to write to him but I hope that deals with it.

The order allows for the 2016 Act to be given effect in the rest of the United Kingdom where that is required and, as has already been said, to bring the treatment of military deaths in Scotland in line with the rest of the UK. On that basis, I commend the order to the House.

Motion agreed.