PROPOSED INQUIRIES INTO DEATHS (SCOTLAND) BILL – PATRICIA
FERGUSON MSP
SUMMARY OF CONSULTATION RESPONSES
This document summarises and analyses the responses to a consultation
exercise carried out on the above proposal.
The background to the proposal is set out in section 1, while section 2 gives
an overview of the results. A detailed analysis of the responses to the
consultation questions is given in section 3. Section 4 includes Patricia
Ferguson MSP’s commentary on the results of the consultation and section 5
outlines potential amendments to the proposed Bill as a result of this
consultation process.
Thompsons Solicitors played an important role in the development of the
proposal, including the drafting of the Bill. They are also referred to
throughout this document as a respondent to the consultation.
Where respondents have requested that certain information be treated as
confidential, or that the response remains anonymous, these requests have
been respected in this summary.
In some places, the summary includes quantitative data about responses,
including numbers and proportions of respondents who have indicated
support for, or opposition to, the proposal (or particular aspects of it). In
interpreting this data, it should be borne in mind that respondents are selfselecting and it should not be assumed that their individual or collective views
are representative of wider stakeholder or public opinion. The principal aim of
the document is to identify the main points made by respondents, giving
weight in particular to those supported by arguments and evidence and those
from respondents with relevant experience and expertise. A consultation is
not an opinion poll, and the best arguments may not be those that obtain
majority support.
Copies of the individual responses are available on the following website:
http://labourclp286.nationbuilder.com/faibill. Responses have been numbered
for ease of reference, and the relevant number is included in brackets after
the name of the respondent.
A list of respondents is set out in the Annexe in the order of the numbers
assigned to them.
1
CONTENTS
SECTION 1: INTRODUCTION AND BACKGROUND ..................................... 3
SECTION 2: OVERVIEW OF RESPONSES ................................................... 5
SECTION 3: RESPONSES TO CONSULTATION QUESTIONS ..................... 7
The main objective of the proposed legislation ............................................. 7
Lessons to be learned as important as what happened ............................... 9
Time limits ............................................................................................... 13
Transparency .......................................................................................... 16
Equal treatment of all work related incidents ........................................... 17
Taking advantage of specialist sheriffs and specialist courts .................. 18
Placing the families of the deceased at the heart of the process ............ 20
Wider impacts of the proposed Bill ............................................................. 24
SECTION 4: MEMBER’S COMMENTARY .................................................... 27
SECTION 5: AMENDMENTS ........................................................................ 29
ANNEXE: LIST OF CONSULTATION RESPONDENTS ............................... 31
2
SECTION 1: INTRODUCTION AND BACKGROUND
Patricia Ferguson’s draft proposal, lodged on 1 August 2013, was for a Bill to:
re-enact with amendments the Fatal Accidents and Sudden Deaths
Inquiry (Scotland) Act 1976:
(a) to extend the scope of inquiries to cover work-related deaths not
resulting from accidents, such as deaths from industrial diseases
and deaths resulting from exposure at work to certain substances
(b) to make the process of investigating deaths quicker and more
transparent, to refer appropriate cases to specialist sheriff courts,
and to give the families of the deceased person a more central role
in the process.
The proposal was accompanied by a consultation document. This document
was published on the Parliament’s website, where it remains accessible:
http://www.scottish.parliament.uk/parliamentarybusiness/Bills/66152.aspx
The consultation period ran from 2 August 2013 to 31 January 2014.
The following organisations and individuals were sent copies of the
consultation document or links to it:
 Associated Society of Locomotive Engineers & Firemen
 Bakers, Food and Allied Workers Union
 British Airline Pilots Association
 Broadcasting, Entertainment, Cinematography and Theatre Union
 Communications Workers Union Scotland
 Community (trades union)
 Educational Institute of Scotland
 Equity Scotland
 First Division Association (civil service trades union)
 Fire Brigades Union
 GMB Union
 Musicians Union Scotland
 National Association of Schoolmasters Union of Women Teachers
 National Union of Journalists
 National Union of Mineworkers Scotland
 National Union of Rail, Maritime and Transport Workers
 Prison Officers Association
 Public and Commercial Services Union
 Scottish Secondary Teachers' Association
 Transport Salaried Staffs' Association
 Union of Construction, Allied Trades and Technicians
 Union of Shop, Distributive and Allied Workers
 UNISON Scotland
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Unite the Union
United Road Transport Union
University & College Union Scotland
The consultation was launched at a press conference held in Glasgow on 2
August 2013.
The consultation exercise was run by Patricia Ferguson’s parliamentary office.
This summary of responses has been prepared by Anna Sloan.
The consultation process is part of the procedure that MSPs must follow in
order
to
obtain
the
right
to
introduce
a
Member’s
Bill.
Further information about the procedure can be found in the Parliament’s
standing orders (see Rule 9.14) and in the Guidance on Public Bills, both of
which are available on the Parliament’s website:
 Standing orders (Chapter 9):
http://www.scottish.parliament.uk/parliamentarybusiness/26514.aspx
 Guidance (Part 3):
http://www.scottish.parliament.uk/parliamentarybusiness/Bills/25690.aspx
4
SECTION 2: OVERVIEW OF RESPONSES
In total 30 responses were received. All responses were submitted directly to
the member.
A clear majority of responses to the proposal were supportive. Bodies
responsible for the investigation of sudden deaths along with those
representing insurance companies and employers were more explicitly
opposed to the proposed Bill or to parts, while responses from major trade
union organisations and advocacy groups demonstrated the highest levels of
support. Notably, even those responses that opposed various specifics of the
proposal expressed support for the general aims and other aspects of the Bill.
The 30 responses were received from a variety of individuals and
organisations and can be categorised as follows:
 8 (27%) from individual politicians (MSPs)
 1 (3%) from members of the public
 3 (10%) from trade union organisations
 7 (23%) from legal bodies
 3 (10%) from advocacy groups
 3 (10%) from insurance providers
 2 (7%) from public bodies
 2 (7%) from care providers
 1 (3%) from academics
There were no anonymous submissions nor were there any confidential
submissions.
This summary reflects the views of 29 of the 30 respondents to the
consultation. Unfortunately, as a result of an administrative oversight, it does
not take direct account of the submission made by the Scottish Court Service
(SCS). However, a number of the comments made by SCS are similar to
comments made by other organisations and are reflected in the analysis. The
SCS submission can be found, along with the other 29, on the member’s
website: http://labourclp286.nationbuilder.com/faibill.
The majority of responses favoured the proposed Bill, highlighting the
potential benefits of three major changes. High levels of support were
expressed for the proposal to broaden the scope of inquiries to include a
wider range of work-related fatalities, with some responses going further in
suggesting this include the deaths of mental health patients, children subject
to protection orders, work-related suicides and road fatalities. Respondents
reacted favourably to the proposed mechanisms included in the Bill to ensure
that lessons can be learned from a fatal accident and recommendations made
during the inquiry process are enforced, preventing future incidents.
Respondents also expressed concern about the delays and lack of
transparency that define the system and were supportive of the proposal’s
focus on improving communication with families and all other involved parties,
making the process more efficient and transparent. These respondents were
5
largely of the view that reform is long overdue and must be enshrined in new
legislation.
A number of responses suggested that the aims of the Bill are already
achieved under existing legislation or current practice, particularly regarding
the principle of placing equal emphasis on determining the causes of a death
and learning lessons from it. Many respondents were in favour of the proposal
insofar as it involves the implementation of recommendations made in Lord
Cullen’s report on the review of Fatal Accident Inquiry Legislation, yet were
concerned about the broader scope of the proposal, including extending
inquiries to historical casualties of industrial disease and strengthening the
Sheriff’s enforcement powers. Further opposition stemmed from the potential
for the inquiry process to infringe on the existing criminal justice system, and
the amount of time and money required to reform such an extensive process.
Some responses questioned the practicality of some aspects of the proposed
Bill, particularly the practicality of enforcing time limits and recommendations,
the manner in which specialist Sheriffs and courts would operate and the
balance between serving public and individual interests. Despite the specific
concerns and qualifications of certain respondents, the majority expressed
strong support for the general aims of the proposed Bill in updating existing
legislation to reflect changing practices and attitudes.
6
SECTION 3: RESPONSES TO CONSULTATION QUESTIONS
This section provides a detailed analysis of responses to each question in the
consultation document.
The main objective of the proposed legislation
Part 1 of the consultation document outlined the aims of the proposed Bill and
what it would involve. Respondents were asked:
Question 1: Do you support the general aims of the proposed Bill as
outlined above? Please indicate yes / no / undecided and outline your
reasons for your response.
All respondents answered this question, with strong support expressed for the
proposal.
 A significant majority, 24 (83%) of the 29 respondents, supported the
general aims of the proposed Bill.
 Five (17%) of respondents were opposed to the proposal.
The main reasons given for supporting the proposed Bill were:
 Grieving families should be able to participate more fully in the Inquiry
process;
 All deaths at or caused by work should be investigated;
 The process should be more efficient and transparent;
 All parties involved should have any decisions made communicated
effectively to them;
 Greater focus should be placed on the lessons which can be learned
from any fatal accident;
 Any recommendations stemming from an Inquiry must be enforceable;
and
 The proposal is consistent with other developments in policy and will
make process uniform across Scotland.
Many responses expressed concern regarding the lengthy nature of the
current process, as it is detrimental to:
 Grieving families of deceased [Bob Wotherspoon, Retired Fire Officer
(3)]; and
 Employers and employees involved who may be concerned about
potential prosecution or further ramifications for business operations
[CMS Cameron McKenna (4)].
The majority of responses emphasised the need for long-overdue reform to
the current system. It was acknowledged that recent developments, such as
the establishment of the Crown Office & Procurator Fiscal Service’s Health
and Safety Division, represent a positive procedural shift, yet for meaningful
change to embed it, it must be enshrined in legislation [Thompsons Solicitors
(26), Unite the Union (27)].
7
Some respondents expressed support for the general aims of the proposed
Bill yet qualified this by raising other concerns, such as:
 Mandatory FAIs to be introduced for all deaths of people receiving
compulsory mental health treatment, either within hospitals or in the
community [Autism Rights (2), Equality & Human Rights Commission
(9)];
 Mandatory FAIs to be introduced for all deaths of children subject to
child protection orders [Equality & Human Rights Commission (9)];
 Practicality of enforcing Sheriff’s recommendations [NHS National
Services Scotland (20)];
 Emphasis should be on public interest not that of an individual party
[NHS National Services Scotland (20)];
 Representation issues for families involved in the process without the
financial resources to secure legal representation [Scottish Trades
Union Congress (23)]; and
 Consideration should be given to FAIs for work related road traffic
accidents and suicides related to the deceased’s employment
[Scottish Trades Union Congress (23)].
Many respondents were in favour of the proposal insofar as it involves the
implementation of recommendations made in Lord Cullen’s report on the
review of Fatal Accident Inquiry Legislation (Cullen Report) [DAC Beachcroft
Scotland LLP (6), Faculty of Advocates (10), Forum of Insurance Lawyers
(11)]. Some respondents opposed to the proposed Bill expressed support for
the implementation of recommendations concerning transparency and the
length of the process made in the Cullen Report, yet were concerned about
the broader scope of the proposal, including:
 Extending inquiries to historical casualties of industrial disease [Crown
Office & Procurator Fiscal Service (5), Faculty of Advocates (10),
Forum of Insurance Lawyers (11)]; and
 Strengthening the powers of the Sheriff to enforce recommendations
arising from an FAI [Crown Office & Procurator Fiscal Service (5)]
Certain respondents expressed the view that new legislation may not be
necessary as existing legislation is sufficient. Examples raised included:
 Fatalities caused by industrial disease are already provided for,
although it was noted that in this case an FAI is not mandatory and is
conducted at the discretion of the Lord Advocate [DAC Beachcroft
Scotland LLP (6)]; and
 Existing system recognises the importance of the lessons learned
through an FAI [Faculty of Advocates (10)].
Other arguments made in opposition to the proposed Bill included:
 The proposed Bill will result in a greater number of FAIs;
 Widening the scope will result in FAIs involving employers who no
longer exist or cases where harm could stem from many employers;
 Causes of industrial disease are well-established and there is little
opportunity for lessons to be learned in this area; and
8

The proposal threatens to blur the boundary between an FAI and other
court proceedings, repeating evidence from a past criminal trial or
raising evidence prior to a future civil trial.
All of the above points were made by: Forum of Scottish Claims Managers
(12), NFU Mutual (19), Zurich Insurance (29).
Despite the specific concerns and qualifications of certain respondents, the
majority expressed strong support for the general aims of the proposed Bill in
updating existing legislation to reflect changing practices and attitudes.
Lessons to be learned as important as what happened
This proposal attempts to rectify the current emphasis placed on simply
determining the cause of death during an Inquiry by placing equal emphasis
on how the fatal accident occurred and the lessons which can be learned from
it. Respondents were asked:
Question 2: Do you agree that equal emphasis should be placed on a)
identifying how the death occurred and b) ensuring lessons are learned
following the death? Do you accordingly agree that there will be
occasions where an inquiry should be held only to consider what
lessons are learned from a death because the circumstances of the
death are well established? Please indicate yes / no / undecided and
explain the reasons for your response.
26 of 29 respondents answered this question, generally demonstrating a
positive attitude towards placing equal emphasis on both how a death
occurred and ensuring lessons are learned from it.
 25 (96%) agreed in principle with equal emphasis being placed on
both aspects of the inquiry process.
 1 (4%) objected to mandated equal emphasis.
Arguments made in favour of the proposal highlighted:
 The importance of establishing ways to prevent reoccurrence of fatal
accidents and the comfort this gives families of the deceased [Bob
Wotherspoon (3), Victim Support Scotland (28)];
 Opportunity presented by an FAI to focus on aspects of a case not
established through other means, such as civil or criminal proceedings
[CMS Cameron McKenna (4)];
 Legislation would ensure greater publicity about the lessons learned in
Inquiries [Institute of Employment Rights (13)]; and
 Greater clarity is required regarding the function and limitations of the
process [Victim Support Scotland (28), Thompsons Solicitors (26)].
Marie Curie Cancer Care (17) strongly supported the proposed Bill, but
suggested that in order to have any meaningful impact it should go further,
implementing the Cullen Report’s recommendation that the Scottish
Government publish FAI recommendations online in order to track the
progress of those responsible for their implementation.
9
Although agreeing with the idea of equal emphasis, some respondents
expressed concern about the possibility of conducting FAIs with the sole
purpose of establishing the lessons that can be learned from it:
 ‘Limiting an inquiry’s scope may have a detrimental effect on the
likelihood of a prosecution taking place which should be avoided.’
[Associated Society of Locomotive Engineers & Firemen (1)].
One respondent [Simpson & Marwick (24)] queried the need for this question
and went on to argue their position in support of “appropriate emphasis”.
Five (20%) respondents who agreed with the principle of equal emphasis
qualified their support by suggesting that existing legislation provides for this,
rendering the proposed Bill unnecessary [Crown Office & Procurator Fiscal
Service (5), Faculty of Advocates (10), Forum of Scottish Claims Managers
(12), NFU Mutual (19), Zurich Insurance (29)]. Issues raised included:
 A Public Inquiry under the Inquiries Act 2005 is appropriate for
situations in which the circumstances are well established and
provides the opportunity to explore the lessons learned [Crown Office
& Procurator Fiscal Service (5)]
 Section 6(1) of the 1976 Act describes the circumstances of death as
both the direct cause of death and ‘the reasonable precautions, if any,
whereby the death and any accident resulting in the death might have
been avoided; and the defects, if any, in any system of working which
contributed to the death or any accident resulting in the death.’ Under
this legislation, if the Lord Advocate is not satisfied that all the
circumstances have been established, an FAI is still required [Faculty
of Advocates (10)].
 Current inquiry process already places equal emphasis, as is evident
in the determination of Sheriff C. Cunninghame at the 2010 inquiry into
the death of James Griffin, which states: ‘The Inquiry’s primary
purpose is to air in public the circumstances of the death in order to
explain its cause or causes. It also allows an Inquiry into whether
reasonable steps could or should have been taken whereby the death
would or could have been avoided’ [Forum of Scottish Claims
Managers (12), NFU Mutual (19), Zurich Insurance (29)].
One respondent [DAC Beachcroft Scotland LLP (6)] opposed equal emphasis
arguing that under Section 1 of the 1976 Act it is the purview of the Sheriff to
determine under what circumstances and for what reasons an FAI should be
held.
Arguing in favour of the proposed Bill, Thompsons Solicitors (26) criticised this
interpretation as ‘legalistic, contrived and based on a very detailed, and
perhaps convoluted, interpretation of the current legislation,’ raising the
following points:
 Greater clarity is required in current legislation;
 Although more FAIs for the purpose of establishing lessons to be
learned have been conducted since the creation of the COPFS Health
10

& Safety Division, this is reflective of current practice only and must be
enshrined in legislation; and
The right of the deceased’s family to challenge a decision not to hold
an FAI must be legislated.
The responses provide evidence of general support for equal emphasis being
placed on identifying how the death occurred and ensuring lessons are
learned following the death, but there is some confusion regarding the
function of existing legislation in respect to this.
Sheriff’s recommendation, enforcement etc.
The proposed Bill seeks to ensure that lessons learned through an inquiry
have a real impact on everyday practice, through an enforcement mechanism
which extends the power to the Sheriff to make and enforce recommendations
for change. Respondents were asked:
Question 3: Do you agree that it is important that the Sheriff be given the
fullest power to make and enforce recommendations for change in light
of the lessons learned from the death, including the creation of the
statutory offence proposed in the Bill and do you think that the
proposals within the Bill satisfy that purpose? Please fully explain the
reasons for your response.
Twenty-seven of the 29 respondents answered this question, with significant
variation evident in the opinions expressed.
 18 (67%) expressed support for extending enforcement powers to the
Sheriff.
 7 (26%) opposed the proposal.
 2 (7%) remained undecided.
The main reasons given for supporting this aspect of the proposed Bill were:
 The current process is riddled with systemic failings which prevent
recommendations from being binding;
 FAIs can only be effective when they result in change to poor
workplace practices and prevent future fatalities;
 Spending public money on an inquiry which can identify failings but not
affect any change is problematic and wasteful; and
 Without an enforcement mechanism, the FAI is a ‘constrained
instrument’ [Unite the Union (27)].
Certain respondents supported the enforcement mechanisms proposed in the
Bill but raised other issues it does not address, such as:
 Lack of a clear mechanism for the Sheriff to enforce changes if they
relate to regulations outside their control [Associated Society of
Locomotive Engineers & Firemen (1)];
 Need for caution to ensure that an FAI does not become a repeat of a
previous criminal trial [Forum of Scottish Claims Managers (12), NFU
Mutual (19), Zurich Insurance (29)];
11
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
Aspects of the Cullen Report’s recommendations not included in the
proposal, such as the publication of recommendations by the Scottish
Government in order to hold responsible bodies accountable for
implementation [Institute of Employment Rights (13), Stirling University
(25), Victim Support Scotland (28)]; and
The Scottish Government has a responsibility to not just disseminate
the findings of an inquiry but push the UK Government to ensure
legislative change [Scottish Trades Union Congress (23)].
Respondents opposed to this aspect of the Bill perceived its approach as
overly bureaucratic, raising concerns such as:
 Lack of clarity regarding enforcement of industry-wide changes which
the Sheriff may be ill-equipped to initiate [CMS Cameron McKenna
(4)];
 The Scottish Parliament should determine whether recommendations
by a sheriff should become binding by way of formal legislation [CMS
Cameron-McKenna (4)];
 Issues associated with creating statutory offence based on a failure to
comply with a recommendation potentially based on uncorroborated
evidence with no right to appeal [Faculty of Advocates (10)];
 Enforcing recommendations on individuals or bodies not directly
involved in the fatal accident is incompatible with Article 6 of the
European Convention on Human Rights [Faculty of Advocates (10)];
 Extending full powers to the Sheriff may exclude other organisations or
regulatory bodies with particular areas of expertise [Marie Curie
Cancer Care (17), Simpson & Marwick (24)]; and
 On occasion previous recommendations from Sheriffs have been
impractical [Richard Simpson MSP (22)]; and
 The inquiry process is a narrow one which makes recommendations
based on a limited amount of evidence which should not necessarily
be enforced across an entire industry [Simpson & Marwick (24)].
A number of responses supported the Cullen Report’s proposal to increase
the Sheriff’s power to make recommendations to prevent other deaths, yet
expressed significant opposition to the Bill’s proposed creation of a statutory
offence [Crown Office & Procurator Fiscal Service (5), DAC Beachcroft
Scotland LLP (6), Faculty of Advocates (10), Marie Curie Cancer Care (17)].
These responses cited the Cullen Report’s concerns that a statutory offence
would:
 Introduce an adversarial element into the inquiry process;
 Increase expense, length and complexity of the inquiry; and
 Fail to account for changing circumstances that may make
recommendations obsolete.
The Crown Office & Procurator Fiscal Service (5) also raised concerns that
the proposed enforcement provisions would not address existing limitations
around enforceability, for example in matters reserved to the UK Government
to legislate for, such as Health and Safety, and Road Traffic.
12
One respondent [Forum of Insurance Lawyers (11)] agreed that Sheriffs
should be given powers to make and enforce recommendations for change
yet expressed concerns about the practicalities of such a provision, such as:
 Financial consequences of enforcing changes;
 Automatic application of charges upon non-compliance, particularly for
small companies or individuals;
 Potential for alternative sanction for non-implementation, such as
publicising non-implementation;
Whilst another respondent [NHS National Services Scotland (20)] neither
agreed nor disagreed with the proposition but highlighted concerns about the
practicalities of such a provision. Such as:
 Extent of enforceability would be limited by the Sheriff’s jurisdiction;
and
 If recommendations are to be enforceable there would also need to be
a system instituted to warn parties, accept feedback on
recommendations and carry out appeals.
The responses reveal strong support for a more effective way to ensure that
recommendations stemming from an inquiry have an impact on everyday
practice, yet it is also evident that there remain questions about the
practicalities of such an enforcement mechanism.
Time limits
The proposed Bill aims to address the slow nature of the existing inquiry
process by introducing time frames within which the Lord Advocate must
make a decision about whether an inquiry shall be held and subsequently for
the actual inquiry process.
Question 4: Do you agree that strict, and short, time limits require to be
introduced into the system both in relation to the time frame within
which the Lord Advocate must make a decision about whether a judicial
inquiry shall be held and thereafter the timeframe for holding certain
procedural hearings and the hearing of evidence itself? Please indicate
yes / no / undecided and explain the reasons for your response.
Twenty-seven of the 29 respondents answered this question, largely
demonstrating a positive attitude towards the proposal:
 A large majority, 22 (81%) of the 27 respondents expressed support
for the introduction of time limits.
 5 (19%) were opposed to time limits.
Strong support was displayed for introducing time limits both for deciding
whether or not an inquiry would be held and for the procedural stages of that
inquiry [Forum of Insurance Lawyers (11), Thompsons Solicitors (26)]. The
main reasons given for supporting the introduction of time limits were:
 Current system is too slow and makes an already painful process for
the family of the deceased even more painful;
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


FAI participants have been victims of ‘leisurely targets’ [Scottish
Trades Union Congress (23)];
Need to remedy the existing discrepancy between the time it takes for
complex trials in civil court and for an FAI to occur;
Delays in conducting an inquiry allow potentially dangerous working
conditions to continue [Unite the Union (27)]; and
To be effective an FAI must happen quickly before recollections fade
and evidence is lost [Faculty of Advocates (10); Marie Curie Cancer
Care (17); NHS National Services Scotland (20)].
Certain respondents qualified their support by raising concerns such as:
 Time limits must be realistic [Forum of Insurance Lawyers (11)];
 Focusing on meeting time limits must not reduce the effectiveness of
the inquiry process [Associated Society of Locomotive Engineers &
Firemen (1)];
 Enough time must be allocated for information gathering to determine
whether an FAI should be held [CMS Cameron McKenna (4)]; and
 Time limits must take into account the resources of the Crown
[Simpson & Marwick (24)].
Respondents opposed to the proposed measure expressed opinions such as:
 Prescriptive time limits are inappropriate as the diversity and potential
complexity of inquiries requires flexibility [Crown Office & Procurator
Fiscal Service (5)];
 Time limits risk colliding with criminal proceedings [Crown Office &
Procurator Fiscal Service (5); Forum of Scottish Claims Managers (12);
NFU Mutual (19); Zurich Insurance (29)];
 Some time limits already function, with COPFS Law Officers issuing
instructions in accordance with the Cullen Report that an FAI
application must be made within 2 months of instructions being issued
by Crown Counsel [Crown Office & Procurator Fiscal Service (5)];
 Time limits should not be prescriptive except when an FAI is
mandatory, as recommended by the Cullen Report [DAC Beachcroft
LLP Scotland (6)]; and
 Introduction of time limits would require changes to the practices and
resources of the Health and Safety Executive, yet the Health and
Safety at Work Act 1974 is not a devolved matter [DAC Beachcroft
Scotland LLP (6)].
However, even those respondents who opposed the measures included in the
proposed Bill concurred that some time limits may be beneficial,
acknowledging that delays and on-going uncertainty are difficult for both
families and businesses involved . The response to this question
demonstrates uncertainty about the specifics but in-principle general support
for time limits.
14
Delays
In emphasising the need for strict timeframes, the draft Bill proposes that the
Lord Advocate be obliged to apply for the holding of an inquiry within 6
months of becoming aware of the death or one month after any criminal
proceedings are concluded, and that the hearing must be conducted within 2
months of this application.
Question 5: Do you think that the timeframes and means of judicial
management proposed within the draft Bill are sufficient and the best
way to achieve a speedy and efficient means of driving the inquiry
process forward? Please indicate yes / no / undecided and explain the
reasons for your response.
Twenty-six of the 29 respondents answered this question, revealing support
from a majority but otherwise mixed attitudes towards the specifics of the
proposed Bill.
 17 (65%) of the 26 respondents suggested that the provisions of the
draft Bill are sufficient and appropriate.
 6 (23%) opposed the proposals.
 3 (12%) respondents remained undecided.
Those respondents in favour of the proposed time limits generally perceived it
as reasonable, arguing that without the specific timeframe no meaningful
reform would occur. Thompsons Solicitors (26) specifically address the
judicial management provisions contained in the Bill, arguing that they are the
‘best means of ensuring efficient and speedy progression of the judicial
process.’
Certain respondents remained undecided on the issue, agreeing that the
existing system is too slow but expressing concern that focusing on any time
limits may reduce the effectiveness of the process [Associated Society of
Locomotive Engineers & Firemen (1)]. It was suggested that whilst notionally
positive, the proposed timeframes may be unfeasible given existing judicial
resources and increasing pressure placed on the court system [Forum of
Insurance Lawyers (11), NHS National Services Scotland (20)]. Respondents
also highlighted the need for flexibility in the system [NHS National Service
(20)].
Respondents opposed to the timeframes and means of judicial management
proposed within the draft Bill raise concerns regarding
 Section 9: 6 months may not allow sufficient time for determining
whether a prosecution will arise [CMS Cameron McKenna (4)];
 Section 12: 2 months may not allow sufficient time to prepare for
complex cases [Crown Office & Procurator Fiscal Service (5)];
 Section 15: proposal allows for the possibility of endless adjournments
[CMS Cameron McKenna (4)];
 Given that courts are already stretched, the proposed time frame is
unrealistic [DAC Beachcroft Scotland LLP (6)]; and
15

Any proposed time limit must commence after the conclusion of any
criminal trial, particularly given evidence could only be gathered from
this point [Forum of Scottish Claims Managers (12); NFU Mutual (19);
Zurich Insurance (29)].
These responses reveal some indecision about and opposition to the specific
timeframes proposed in the draft Bill, despite high levels of support for the
introduction of some time limits.
Transparency
The existing inquiry procedure is criticised for its lack of transparency and
clarity. In order to rectify this, the proposed Bill explicitly requires that the Lord
Advocate produce clear written decisions when certain powers are exercised.
Question 6: Do you agree that the Lord Advocate should produce clear
written decision when certain powers are exercised in relation to
inquiries into deaths as proposed in the draft Bill? Please indicate yes /
no / undecided and explain the reason for your response.
Twenty-six of the 29 respondents answered this question, demonstrating
strong support for the proposal to mandate that the Lord Advocate produce
clear written decisions.
 A significant majority, 23 (88%) of the 26 respondents were in favour
of the proposal.
 3 (12%) were undecided
 No respondents opposed the proposal.
The significant majority of respondents who supported this aspect of the
proposed Bill argued that it is only fair for the reasons for the Lord Advocate’s
decision to be explained to those most affected by it. It was suggested that
clear, written decisions would ensure the process is open and honest and that
involved parties remain accountable. Certain responses suggested that a
written decision presented the opportunity for involved individuals to dispute
the decision [Forum of Insurance Lawyers (11); Unite the Union (27)].
Thompsons Solicitors (26) argued that, although under current practice
families meet with Crown Office & Procurator Fiscal Service representatives
and receive written decisions, it is important that this practice be cemented in
legislation. The Scottish Trades Union Congress (23) concurred, suggesting
that the establishment of the HSE Prosecution Division has improved
communication but this could be further enhanced by compelling the Lord
Advocate to provide written decisions.
While no respondents were opposed to the requirement that the Lord
Advocate produce written decisions, a small number expressed uncertainty
about the proposal:
 Under existing practice the Lord Advocate already communicates
directly with the family of the deceased, calling into question the
necessity of legislation to mandate this practice [CMS Cameron
McKenna (4)];
16


The implications of the Lord Advocate being required to fully explain
the reasons behind the decision not to hold an inquiry when there is no
option for families to challenge this decision [CMS Cameron McKenna
(4); Simpson & Marwick (24)];
Requirements for dissemination of information must be flexible [Crown
Office & Procurator Fiscal Service (5)].
Despite some reservations, the consultation responses revealed signficant
support for the proposal to require the Lord Advocate to communicate
decisions more effectively.
Equal treatment of all work related incidents
The proposed Bill requires all work related deaths, including those caused by
disease or exposure to other substances, to be subject to an inquiry.
Respondents were asked:
Question 7: In what circumstances to do you think an inquiry should be
carried out following an accident or incident leading to a work related
death? Please fully explain the reasons for your answer.
All respondents answered this question, with the majority showing strong
support for the expansion of circumstances in which an FAI should be
required.
 19 (66%) of 29 respondents were in favour of including a wider range
of circumstances.
 10 (34%) were opposed to expanding the relevant circumstances.
One respondent [Associated Society of Locomotive Engineers and Firemen
(1)] expressed support for broadening the scope of mandatory FAIs to
include:
 Fatal occupational diseases;
 Work related road deaths; and
 Suicides related to the deceased’s employment.
Another respondent [Drew Smith (MSP) (7)] wished to see the scope
extended to “any accident in the workplace that causes a fatality or leads to a
situation that ultimately results in death or injury of a worker”.
The majority of responses focused on the inclusion of deaths caused by
industrial disease, with many respondents in favour of FAIs for these
previously overlooked deaths. However, this aspect of the proposal also
provoked some resistance. Concerns raised include:
 Practicality of reporting deaths from industrial disease to the Lord
Advocate long after the end of any relevant employment [Bob
Wotherspoon (3), CMS Cameron McKenna (4)];
 Harm may have stemmed from a number of employers [Zurich
Insurance (30)];
17

Responsible employers may no longer exist, particularly as much
‘heavy industry which gave rise to the exposure and diseases have
been closed for many years’ [Crown Office & Procurator Fiscal Service
(5)].
Certain responses expressed support for the proposed Bill but suggested that
there were further circumstances under which an inquiry should be carried
out, including:
 Mandatory FAIs for all deaths of people receiving compulsory mental
health treatment, either within hospitals or in the community [Autism
Rights (2), Equality & Human Rights Commission (9)]; and
 Mandatory FAIs for all deaths of children subject to child protection
orders [Equality & Human Rights Commission (9)].
Respondents who opposed broadening the range of circumstances under
which an FAI is mandatory highlighted current provisions (i.e. section 1(1)(b)
of the 1976 Act) which allow an FAI to be conducted at the discretion of the
Lord Advocate even when the Inquiry is not mandatory.
Drawing on the existing legislation, certain responses thus asserted that there
is little need to further broaden it [Crown Office & Procurator Fiscal Service
(5), DAC Beachcroft Scotland LLP (6)].
In answering this question, a number of responses went beyond the scope of
work related deaths, raising specific concerns about deaths of mental health
patients in public care [Autism Rights (2), Equality & Human Rights
Commission (9)]. Further analysis of these concerns can be found in both
Question 1 and Question 12.
In general, the majority of respondents suggested that all work related deaths
should result in an FAI, despite the concerns raised by some regarding the
practicality and necessity of this shift.
Taking advantage of specialist sheriffs and specialist courts
In light of current Scottish Government proposals to create specialist personal
injury Sheriffs and a specialist personal injury court through the Courts
Reform (Scotland) Bill, this Bill proposes that inquiries into workplace deaths
be heard before these Sheriffs and specialist courts.
Question 8: Do you agree that an inquiry into a workplace death should
be heard by either a specialist personal injury Sheriff or the specialist
personal injury Sheriff Court with jurisdiction to hear cases throughout
all of Scotland as currently being proposed in the Courts Reform
(Scotland) Bill Consultation 2013? Please indicate yes / no / undecided
and explain the reasons for your response.
Twenty-six of the 29 respondents answered this question. A majority agreed
with the proposal but others demonstrated significant variation in attitudes
towards the proposal.
18



15 (58%) of the 26 respondents were in favour of inquiries being heard
by a specialist personal injury Sheriff or court.
4 (15%) of respondents were opposed to the idea.
7 (27%) were undecided.
The main reasons given for supporting the proposed use of judicial specialism
in the inquiry process were:
 It would ensure appropriate review;
 Cases are often complex and require specific knowledge;
 It would provide consistency in handling FAIs [Drew Smith MSP (7),
Scottish Trades Union Congress (24)];
 Reform reflects the recommendations of the Gill Review and current
government policy [DAC Beachcroft Scotland LLP Solicitors (6),
Thompsons Solicitors (27)]; and
 Inclusion of specialists in the process will ensure inquiries are
conducted in a timely and thorough manner [Bob Wotherspoon (3)].
Those who felt that the proposal would not be appropriate or necessary
highlighted concerns with the Bill:
 It is not necessary or in the public interest [Crown Office & Procurator
Fiscal Service (5),The Faculty of Advocates (10)];
 Will create a backlog and hence unwelcome delay [Crown Office &
Procurator Fiscal Service (5)];
 Will cause further distress to the families involved [Simpson & Marwick
(25)];
 Geographically it does not make sense [Forum of Insurance Lawyers
(11)]; and
 This will be a less flexible process than if matters were left as drafted in
Section 10, giving the Lord Advocate the option to refer to this new
specialist court as and when necessary, resources permitting [CMS
Cameron McKenna (4)].
A number of responses adopted the position of the Cullen Report, which
acknowledged that in complex cases an experienced Sheriff should be
assigned but rejected the notion of specialist personal injury Sheriffs or courts,
concerned about the fragmentation of the inquiry system this may cause and
the potential delays it may result in [Crown Office & Procurator Fiscal Service
(5), DAC Beachcroft (6), Marie Curie Cancer Care (17)].
A significant portion of respondents remained undecided [Forum of Scottish
Claims Managers (12), Institute of Employment Rights (19), Victim Support
Scotland (29), DAC Beachcroft Scotland LLP Solicitors (6)] accepting the
benefits presented by the involvement of highly experienced Sheriffs whilst
raising concerns such as:
 This issue should be determined not by the proposed Bill but by the
Courts Reform (Scotland) Bill;
 Local knowledge can be important and there is a risk that the benefits
of it could be lost if all inquiries were held in an all-Scotland personal
injury court;
19


The proposed specialist court will be specialist in civil law, and the
scope of the FAI may reach into broader fields of law, namely criminal
and regulatory law; and
Regardless of the technicalities of the process, the priority should be
an efficient and transparent process which values the views of the
family of the deceased.
Whilst only a relatively small majority of responses were in favour of this
aspect of the proposal, the significant number of undecided respondents
demonstrates that there is some uncertainty about the necessity of the
proposal, its practical implementation and reliance on the Courts Reform
[Scotland] Bill.
Placing the families of the deceased at the heart of the process
The proposed Bill seeks to introduce a range of measures to shift the family of
the deceased to the heart of the process by providing them with greater
access to information and more control in determining the nature and extent
of the inquiry.
Question 9: Do you agree that the family of the deceased ought to have
a special role within the inquiry process guaranteed by the rules
governing inquiries into deaths and do you think that the proposed Bill,
annexed to this consultation, is sufficient for that purpose? Please
indicate yes / no / undecided and explain the reasons for your response.
Twenty-four of the 29 respondents answered this question.
 16 (67%) respondents agreed that the family should hold a ‘special role’
in the process.
 2 (8%) of replies were explicitly against this suggestion
 6 (25%) were undecided
Those respondents in support of the proposal believed that the family should
undoubtedly play a special role at the heart of the entire process from
beginning to end. Many went on to note the importance of ensuring families
fully understand their role and are extended the necessary support to allow
them to fulfil it, as suggested in the Cullen Report. The Scottish Trades Union
Congress (24) went further in suggesting families be given the right to
challenge Sheriffs’ decisions to the Lord Advocate. Fundamentally, it was
argued that supporting families should be the ‘highest principle’ of the
reformed system [Thompsons Solicitors (27)].
Respondents opposed to the proposal [Cameron McKenna CMS (4); Faculty
of Advocates (10)] acknowledged the importance of being sensitive towards
the family, but suggested the following:
 Not all family interests will be the same [Cameron McKenna CMS (4)];
 The proposal shifts focus from the true purpose of holding an FAI;
 Extending further powers to individual parties prolongs the process;
20


An inquiry should be an objective assessment of the circumstances in
the wider public interest; and
An appropriate balance between family and public interest is achieved
in the existing system.
A number of respondents expressed concern over ensuring the inquiry
process remains an objective assessment of the circumstances of a death,
focusing primarily on the interests of the wider public without being clouded by
concern for the involvement of the family [Cameron McKenna CMS (4), Crown
Office & Procurator Fiscal Service (5), Faculty of Advocates (10)].
Further issues raised by undecided respondents included:
 Lack of a clear definition of ‘special role’. [DAC Beachcroft Scotland
LLP Solicitors (6)];
 Families may not be fully aware of the legal framework [Forum of
Scottish Claims Managers (12)]; and
 Proposals may place undue stress on the families [Crown Office &
Procurator Fiscal Service (5)].
Some recognised that it is important that families have the opportunity to put
relevant questions to witnesses and to call their own witnesses but
acknowledged the wide range of interested parties who should be treated
equally. The aim of any inquiry should be to conduct a thorough, impartial
review of the available evidence and to report thereon. Accordingly, it was
asserted that no interested party should have a ‘special role’ within that
process at the expense of any other party’s role [Simpson & Marwick (24);
Victim Support Scotland (28)].
These responses largely recognised that the family should be treated with
sensitivity and be able to participate in a transparent process, but not at the
risk of losing sight of the essential purpose of a public inquiry held to ensure
future fatalities are prevented. The significant proportion of undecided
responses stems from confusion as to how to balance these priorities, rather
than opposition to the inclusion of the family.
–
The proposed Bill seeks to extend to the family of the deceased the power to
determine whether an inquiry take place in a specialist court, permitting them
to influence the nature of the inquiry.
Question 10: In particular, do you agree that the family of the deceased
should be entitled to determine that an inquiry take place in the
proposed specialist Sheriff Court unless the Lord Advocate is able to
show special cause to the contrary; and should have the right to
influence and shape the nature and extent of the inquiry into the death
of their family member by the means proposed in the draft Bill? Please
indicate yes / no / undecided and explain the reasons for your response.
Twenty-six of the 29 respondents answered this question.
21



15 (58%) of the 29 respondents supported this particular proposal.
8 (31%) were opposed to the proposal in principle.
3 (12%) did not specifically indicate their support or opposition.
Those who supported the proposal highlighted the following benefits of
expanding the involvement of the family in decision-making processes related
to an inquiry:
 The proposal would allow the family to discuss the results;
 The process would address the inconsistency at present and changes
would be consistent with recent policy [Scottish Trades Union
Congress (24)];
 Currently the presiding Sheriff has wide remit in determining the nature
of the inquiry, but the family should have a statutory right to greater
involvement in influencing the inquiry and the evidence heard
[Thompsons Solicitors (7)];
 Extending particular rights to a bereaved family is consistent with
recent policy developments aimed at enhancing the role of victims in
the justice system, such as the Victims and Witnesses (Scotland) Act
[Institute of Employment Rights (13), Stirling University Occupational
and Environmental Health Research Group (25)].
A number of respondents who supported this aspect of the proposed Bill
suggested it go further and consider the inclusion of an appeals process to
lessen the likelihood that the family feel their opinions are not taken into
account [Associated Society of Locomotive Engineers & Firemen (1)]. The
Institute of Employment Rights (13) and Stirling University Occupational and
Environmental Health Research Group (25) went beyond the scope of the
question to propose an amendment to Section 6 of the Bill to include trade
unions in those notified of the process of any inquiry, particularly given the
tripartite system in which unions play an equal role to government and
employers’ organisations.
Respondents who were not supportive of the proposal argued that:
 The Lord Advocate must retain the decision making power to ensure
that there is the correct balance between the rights of the family and
the need for justice [DAC Beachcroft Scotland LLP Solicitors (6),
Forum of Scottish Claims Managers (12), Simpson & Marwick (25),
Zurich Insurance (29)];
 The existing inquiry system maintains the appropriate balance between
public interest and the interest of the family, making the proposed
changes unnecessary [Faculty of Advocates (10)]; and
 A single involved party should not be entitled to any more decisionmaking power than any other [Forum of Insurance Lawyers (11),
Simpson & Marwick (25)].
Certain respondents expressed sympathy for the families but remained
undecided on the relevant provisions of the Bill, raising concerns such as:
 The family is only one of a number of important factors to be
considered alongside the location of key witnesses, the ability of a local
22

court to deal with the matter, the number and location of interested
parties, all of which must be taken into consideration in determining the
shape, nature and extent of any inquiry [CMS Cameron McKenna (4)];
and
Extending the onus of decision-making to the family may place an
undue burden on grieving relatives [Victim Support Scotland (29)].
Experience of current FAI system
Respondents were asked about any relevant experience of the current inquiry
process.
Question 11: Do you have any experience of the current FAI system
either positive or negative which you think is relevant to this
consultation? Please answer as fully as possible.
Twenty-three of the 29 respondents answered this question, their experiences
highlighting the great disparity in attitudes towards the current FAI system.
Predominantly the experiences were not positive.
Respondents satisfied with the existing system expressed the following
opinions:
 Change is unnecessary as many of the proposals made in the Bill are
either already in place or not realistic in everyday practice [Crown
Office & Procurator Fiscal Service (5)];
 The current system operates as expediently as possible and Sheriffs
perform their roles to the best of their abilities [Forum of Scottish
Claims Managers (12)]; and
 The current system fulfils its requirements and any perceived lack of
focus on the family stems from the fact that an inquiry is not designed
to apportion blame [Forum of Scottish Claims Managers (12), NFU
Mutual (19)].
The majority of responses detailed negative experiences with the current
system, demonstrating their support for the general aims of the proposed Bill
and highlighting existing flaws, such as:

Slow process
o Bob Wotherspoon (3): Retired Fire Officer who attended the
Balmoral Bar fire in July 2009 where a fire fighter tragically died.
This response highlighted the length of time individuals involved
in inquiries currently wait for an inquiry to commence, findings to
be made and families to find some closure.
o Richard Baker MSP (21) referred to the Super Puma helicopter
accident which resulted in 16 deaths in 2009 off the
Aberdeenshire coast. It was not until January 2014 that an
inquiry into this incident commenced, severely impacting those
families waiting for answers.
o NHS National Services Scotland (20): The NHS Central Legal
Office explains that in their experience of representing
23
witnesses, the current delays have a negative impact on
professionals who have to wait long periods of time to testify.
o CMS Cameron McKenna (4): In their time representing highhazard offshore industry companies in incidents involving
fatalities, this respondent has experienced a number of cases in
which those involved waited in excess of 2 years for an inquiry
to be instigated, long after the conclusion of criminal
proceedings.

Under-resourced system
o DAC Beachcroft Scotland LLP (6) stated that in their experience
representing clients, current delays are the product of an
underfunded Crown Office & Procurator Fiscal Service.
Legislative changes should be enhanced by funding reforms.

Lack of sensitivity towards families
o Duncan McNeil MSP (8) used the example of the families of
those who died in the Flying Phantom Disaster to highlight the
lack of channels for families to participate in the process.
o Thompsons Solicitors (27): In their experience of representing
families of deceased workers, this respondent has had largely
negative experiences which has left families disappointed and
angered by the process.

Limited scope of inquiry
o Neil Findlay MSP (18) described the experience of an unnamed
constituent’s daughter’s death, an inquiry into which was
deemed unnecessary. The decision-making process was flawed
and the communication with the family was limited.
o Richard Simpson MSP (22): Emphasising the need for inquiries
to be held for all work-related incidents, this response describes
the recent decision not to hold an inquiry into the 2011 death of
a hospital doctor who tragically died in a road accident after
working extremely long hours.
Wider impacts of the proposed Bill
Respondents were asked to give their opinion on the consequences of the
proposed Bill, both in general, and specifically to them or their organisation.
Question 12: What, if any, are the wider implications of the proposed
Bill? Can you see any unforeseen consequences? Do you estimate that
the proposed legislation will have financial implications for you or your
organization? Please indicate yes/ no/ undecided and explain the
reasons for your response.
This question prompted widely varying responses detailing a range of positive
and negative implications of the Bill for individuals and organisations. A
significant portion of responses, particularly from those who remained
24
undecided, raised questions and concerns about the Bill in order to clarify its
function and practical implementation.
The potentially negative implications which respondents expressed concern
regarding included:
 Increased financial and time constraints placed on Sheriff Court
resources [NFU Mutual (19); Simpson & Marwick (24)];
 Increased expenditure and delays amplifying distress for families
[Crown Office & Procurator Fiscal Services (5), Forum of Scottish
Claims Managers (12)];
 Potential interference with existing criminal justice system [NFU Mutual
(19), Forum of Scottish Claims Managers (12)];
 Undue pressure placed by time limits on all parties, ranging from
witnesses to the Crown Office, Health & Safety Executive and the
Sheriff [DAC Beachcroft Scotland LLP (6)];
 Lack of clarity regarding circumstances under which an inquiry can be
adjourned may result in greater delays [CMS Cameron McKenna (4)];
 Changes to the nature of the inquiry process, which may become more
adversarial than inquisitorial [Faculty of Advocates (10)];
 Sheriffs enforcing recommendations may be ill-equipped to do so and
not take into account industry-specific requirements [Simpson &
Marwick (24)];
 Mechanisms to enforce the Sheriff’s recommendations may unfairly
impact certain businesses or individuals [Faculty of Advocates (10),
DAC Beachcroft Scotland LLP (6), Institute of Employment Rights
(13)];
 Relevant lines of investigation may be overlooked or omitted under
time constraints [Forum of Insurance Lawyers (11)]; and
 Insurance taken out by companies in order to cover potential costs of
representation may result in increased premiums, passed on to
consumers and businesses [Zurich Insurance (29)].
The positive effects highlighted by different respondents were largely the
same, focusing on the long-term benefits of legislative reform and the
potential for the proposed Bill to vastly improve the experience of families
involved. Benefits raised included:
 Shorter time frames, the involvement of a specialist court and Sheriffs
and a redefinition of the family’s role outweigh any problems posed by
the legislation [Richard Simpson MSP (22); Marie Curie Cancer Care
(17)];
 ‘The long-term benefits to the justice system dwarf the short-term
burdens that may fall to some individuals and organisations’ [Institute
of Employment Rights (13)];
 Adoption of preventative measures will save employers time and
money in the long-term [Stirling University (25)]; and
 Reform will reposition the family at the centre of a process which is
significantly more efficient and transparent, focused on the needs of
grieving families [Bob Wotherspoon (3), Neil Findlay MSP (18), Stirling
University (25), Victim Support Scotland (28)].
25
Certain respondents took this opportunity to express concerns, ask questions
and make suggestions for amendments to the Bill.
 Associated Society of Locomotive Engineers & Firemen (1): Suggests
that a formal system must be put in place to ensure train drivers
involved in fatal accidents are not compelled to attend inquests unless
they so wish and can instead provide evidence via a written statement
to prevent further trauma.
 Autism Rights (2) and Equality & Human Rights Commission (9): Both
organisations propose extending the scope of mandatory inquiries to
include the deaths of all individuals receiving voluntary or compulsory
mental health treatment, either within hospitals or in the community.
 Equality & Human Rights Commission (9): Proposes extending
mandatory inquiries for all deaths of children subject to child protection
orders.
 Scottish Trades Union Congress (23): Consideration is required of the
funding mechanisms in place to provide for legal representation of
those involved in the process.
 Unite the Union (28): Suggests that further powers should be extended
to the Sheriff to impose time limits on employers’ compliance with
recommendations and liaise with the Health & Safety Executive to audit
the compliance process.
26
SECTION 4: MEMBER’S COMMENTARY
Patricia Ferguson MSP has provided the following commentary on the results
of the consultation, as summarised in sections 1 – 3 above.
I wish to begin by expressing my thanks to all those who took part in this
consultation process. The variety and depth of responses is encouraging,
allowing us to gauge public opinion on the issue and establish concerns which
can be addressed in an amended Bill.
I would also like to thank Thompsons Solicitors for their assistance in drawing
up the consultation document.
Twenty-nine submissions on the proposed Bill were received by my office and
I am pleased that 76% of those respondents expressed support for my
proposal. Support came from many quarters, particularly trade union
organisations, advocacy groups, individual politicians, private individuals,
health care providers and legal bodies. Opposition largely came from those
representing insurance providers, employers and investigative bodies. I am
delighted by the high levels of support evident in responses to all key
questions.
The contribution of Bob Wotherspoon, a retired fire officer who attended the
Balmoral Bar fire in 2009 where a fire fighter tragically died, was particularly
compelling. His personal experience of the current inquiry process illustrates
the flaws in existing legislation and he represents the countless individuals
who have found the inquiry process a long and arduous one, which leaves
those involved traumatised, disillusioned and often with no sense of closure.
Such tragedies demonstrate the need to ensure that inquiries’ findings are
implemented in work practice to prevent future incidents.
A significant number of responses referenced Lord Cullen’s
recommendations, suggesting their implementation would be sufficient reform.
It is apparent to me that effective legislation must go further than Lord Cullen’s
proposals, particularly in extending mandatory inquiries to all work related
deaths, introducing an enforcement mechanism for the implementation of the
Sheriff’s recommendations, specifying time limits and extending to families a
greater role in the process.
It is argued by some that existing legislation and current practice achieve the
aims of the proposed Bill, particularly as regards the principle of placing equal
emphasis on determining the cause of death and establishing lessons from it.
This argument is based on a particularly legalistic interpretation of the
ambiguous wording of the Fatal Accidents and Sudden Deaths Inquiry
(Scotland) Act 1976. Further, although more inquiries for the purpose of
establishing lessons to be learned have been conducted since the creation of
the COPFS Health & Safety Division and certain aspects of Lord Cullen’s
proposals have been implemented by COPFS, this is reflective of current
practice only and should be enshrined in clear and unambiguous legislation.
27
I am greatly encouraged by the support for the proposed Bill expressed by the
majority of respondents who agree that change is required. Despite some
reservations regarding the practical function of specific proposals, there is
broad support for the aims of the Bill and general consensus that existing
legislation must be reformed. The concerns raised by respondents have been
acknowledged and will form the basis of amendments to the draft Bill. This is
discussed in further detail in Section 5. The proposed Inquiries into Deaths
(Scotland) Bill will ensure the inquiry process is sensitive to all parties
involved and more efficient, transparent and effective at bringing about real
change in preventing further incidents.
28
SECTION 5: AMENDMENTS
A number of respondents raised questions regarding the practicality of the
proposed enforcement mechanism under which recommendations made by
the Sheriff are enforceable. Concerns were expressed about the lack of a
right of appeal, required under human rights jurisprudence. The draft Bill will
therefore be amended before introduction to provide for such a process. It is
envisaged that this will include:
1. Appeal from a sheriff to the Sheriff Appeal Court;
2. Sheriff Appeal Court’s powers of disposal in appeals;
3. Remit of appeal from the Sheriff Appeal Court to the Court of Session;
4. Appeal from the Sheriff Appeal Court to the Court of Session;
5. Granting of leave or permission and assessment of grounds of appeal;
and
6. Effect of appeal.
The changes allow for any person or body to whom a recommendation is
made to appeal against the recommendation or against the recommendation
being addressed to them. The Sheriff Appeal Court is empowered to recall or
vary the recommendation or dismiss the appeal. It is also provided for the
Sheriff Appeal Court to remit the appeal to the Court of Session if appropriate
or for a decision of the Sheriff Appeal Court to be appealed before the Court
of Session.
The intention is to ensure that parties who may be subject to criticism during
an inquiry’s proceedings or as a result of the determination or
recommendation are sent warning notices and invited to make a statement
addressing or providing evidence on the relevant issues. The intention is also
to permit any parties to whom a recommendation may be addressed to
appear at an inquiry. This will ensure that any parties who may be impacted
by the Sheriff’s recommendations are informed in advance and given the
opportunity to make representations regarding it.
Consideration has been given to queries raised regarding mandatory inquiries
for certain categories of fatalities. As a result I will amend the Bill before
introduction to take into account the support expressed for expanding
mandatory inquiries into deaths of sectioned individuals to include voluntary
patients in psychiatric hospitals, those subject to compulsory orders living in
the community and those subject to detention under the use of legal
guardianship. Mandatory inquiries into deaths of children subject to child
protection orders will also be included.
Concerns were voiced about the practicality of extending mandatory inquiries
into deaths caused by industrial disease. Further consideration will be given to
queries about the practicality of reporting such deaths long after the
conclusion of any relevant employment, establishing which of any number of
employers may be responsible, holding employers which may no longer exist
to account, and determining the value of lessons to be learned from historical
causalities about out-dated practices which are already well-established. This
29
is an issue worthy of the level of debate and scrutiny a Member’s Bill receives
and it will therefore remain part of the Bill at introduction.
30
ANNEXE: LIST OF CONSULTATION RESPONDENTS
1 Associated Society of Locomotive Engineers & Firemen
2 Autism Rights
3 Bob Wotherspoon, Retired Fire Officer
4 CMS Cameron McKenna
5 Crown Office & Procurator Fiscal Service
6 DAC Beachcroft Scotland LLP
7 Drew Smith MSP
8 Duncan McNeil MSP
9 Equality & Human Rights Commission
10 Faculty of Advocates
11 Forum of Insurance Lawyers
12 Forum of Scottish Claims Managers
13 Institute of Employment Rights
14 Jackie Baillie MSP
15 James Kelly MSP
16 Margaret McCulloch MSP
17 Marie Curie Cancer Care
18 Neil Findlay MSP
19 NFU Mutual
20 NHS National Services Scotland
21 Richard Baker MSP
22 Richard Simpson MSP
23 Scottish Trades Union Congress
24 Simpson & Marwick
Stirling University Occupational and Environmental
25 Health Research Group
26 Thompsons Solicitors
27 Unite the Union
28 Victim Support Scotland
29 Zurich Insurance
30 Scottish Courts Service
31