§ Order for Second Reading read.
§ 4.31 p.m.
§ The Lord Advocate (Mr. Ronald King Murray)
I beg to move, That the Bill be now read a Second time.
This Bill is primarily a measure of law reform, consolidating and amending as it does the legislation governing public inquiries into deaths in Scotland and modernising the procedure to be followed at such inquiries.
The Grant Committee on the Sheriff Court, in its Report published in July 1967, made several recommendations regarding such inquiries. With one important exception, which I shall explain later, the Bill implements those recommendations.
The most important change made by the Bill is that, in future, public inquiries will be held by the sheriff sitting alone instead of by the sheriff with a jury of seven people. This should effect a considerable saving of time and expense. The Grant Committee pointed out that the use of juries in such inquiries had ceased to be useful, with the jury merely rubber-stamping a verdict dictated by the sheriff. In addition to this, the Bill makes a number of other procedural changes and clarifies the powers of the sheriff. All this should help inquiries to be conducted more effectively and more efficiently.
One aspect of the Bill is of major topical importance and reflects the urgent need for new legislation. This is the extension of the power to hold public inquiries into deaths occurring in oil operations on that part of the Continental Shelf to which the law of Scotland applies. There have been many deaths, particularly of divers, in the course of such operations, and this has aroused public disquiet. The Department of Energy's inspectors can at present investigate them, and these deaths may, in appropriate cases, give rise to civil or criminal liability. But there is also a need for the facts of such deaths to be clearly determined to the satisfaction of the public 1118 in the same way as industrial deaths or accidental deaths on land.
The legal basis for holding such Continental Shelf inquiries was uncertain to such an extent that I found it necessary last year to direct procurators fiscal not to proceed with such inquiries until a firmer legal basis could be provided. A partial improvement was effected by the Continental Shelf (Jurisdiction) (Amendment) Order 1975, which came into force on 20th November 1975 and gave the sheriff jurisdiction to hold inquiries into Continental Shelf oil deaths, but only where the cause of death was clearly the act or omission of some person. This restriction was necessary to keep within the limits of the parent Act, the Continental Shelf Act 1964, under which the Order was made. Such a restricted provision is, however, clearly only a partial remedy. There cannot be too many cases where the possibility of accident can be ruled out before there has been an inquiry, and where the death was plainly accidental there could be no inquiry under the Order.
The solution which the Government have adopted is to give the sheriff jurisdiction to hold inquiries into all deaths occurring on the Continental Shelf in connection with oil and other mineral operations. Clause 9 of the Bill confers that jurisdiction.
But what about deaths which have already occurred before a proper machinery for inquiry has been brought into force? Once that machinery is in existence, there seems no good reason why it should not be used to inquire into such deaths where there is strong ground for a public inquiry and where there is a reasonable prospect that the facts can be established. Accordingly, the Bill empowers the Lord Advocate to order inquiries into deaths occurring up to three years before the Bill becomes law. This provision is not retrospective in the technical or constitutionally objectionable sense. It merely allows future inquiry into past deaths without altering anyone's rights at or after the date of death.
§ Mr. Malcolm Rifkind (Edinburgh, Pentlands)
Has the right hon. and learned Gentleman come to any preliminary view about the number of such inquiries that he is likely to believe to be desirable, given the number of deaths 1119 which have already occurred in the course of North Sea oil explorations?
§ The Lord Advocate
Obviously some consideration has been given to this matter. If, however, Parliament confers the power, it is right that each case should be considered on its merits, and I propose to do just that. However, perhaps later, once the Bill is enacted, the hon. Gentleman will inquire about progress, in which case I shall be happy to inform him.
Turning from the rather special case of Continental Shelf deaths to more mundane routine matters, it might be useful if I gave a short outline of the circumstances giving rise to public inquiries into deaths in Scotland under present legislation.
The present provisions are, first, the Fatal Accidents Inquiry (Scotland) Act 1895, which provides for a compulsory inquiry into any death resulting from accident during industrial employment; secondly, the Prisons (Scotland) Act 1952, which provides in Section 26(2) for a compulsory inquiry into the death of a person confined in a prison or other penal institution; and, thirdly, the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1906, which gives the Lord Advocate discretion to order an inquiry into any sudden or suspicious death where he considers that to be in the public interest.
The Grant Committee recommended that there should no longer be a compulsory inquiry into every death resulting from an industrial accident, and instead recommended that these inquiries should be at the Lord Advocate's discretion. Following extensive consultations with affected interests, however, I came to the conclusion that this recommendation should not be followed.
§ Mr. Nicholas Fairbairn (Kinross and West Perthshire)
Will the right hon. and learned Gentleman list the interests which he consulted?
§ The Lord Advocate
I can give the hon. and learned Gentleman a list of the bodies consulted. They were the Faculty of Advocates, the Association of Sheriffs Principal, the Sheriffs' Association, the Law Society of Scotland, the Scottish Trades Union Congress, the CBI Scottish Council, the Association of Police 1120 Officers, Scotland, the Chief Fire Officers' Association, the BMA Scottish Council, the Society of Procurators Fiscal, the Department of Employment, the Inspectorate of Factories and Mines, the Department of Agriculture and Fisheries in Scotland and the Registrar-General for Scotland. In addition, many other bodies were aware of the consultation document which was issued and some of them made representations.
The Law Society of Scotland and the Scottish Trades Union Congress made strong representations in favour of retaining compulsory inquiries. The main arguments were that, if inquiries were not compulsory, there was a risk that a material number of cases of fatal accidents at work would not be fully investigated and that in many cases the employers' version of events, which might appear convincing at first sight, would be accepted without further inquiry. In the result, in some cases where the employers had in fact been at fault this might never come to light. The STUC persisted in these objections. The Law Society was prepared to withdraw its objections but only on the basis that public inquiries would be held in all cases except where the Lord Advocate, in exceptional circumstances, dispensed with an inquiry.
After careful consideration, the Government reached the view that, on balance, it would be wrong to abolish compulsory inquiries in this field, particularly in the face of continued objection from those representing employees, who are, after all, the people most directly concerned.
The Bill therefore provides for the continuation of compulsory as well as discretionary inquiries. Indeed, the opportunity has been taken to extend the scope of compulsory inquiries to meet the wider concept of accidents at work which underlies other recent legislation. The Bill requires an inquiry to be held into death resulting from accident in the course of any work. At present, inquiries need only be held into deaths resulting from accidents in industrial employment—on a definition of "industrial" which is increasingly out of date and difficult to defend. Under the Bill, inquiries will have to be held into deaths resulting from accidents to those at work in offices, shops, schools and hospitals as well as those in factories.
1121 It no longer appears defensible in terms of safety to draw a distinction between industrial and non-industrial employment. No such distinction is drawn in other modern legislation relating to safety at work—for instance, in the Health and Safety at Work etc. Act 1974. We should be equally concerned with the safety of all people at work—not forgetting employers and self-employed workers who will also be covered by the Bill—and the expanded use of office machinery, for example, has plainly greatly increased the risks involved in non-industrial work.
§ Mr. Rifkind
By removing one arbitrary distinction the Lord Advocate has created other anomalies. For instance, if two people in a taxi were involved in a fatal accident, it would be necessary under the Bill to have a fatal accident inquiry into the death of the taxi driver because he was in employment at the time, but there would be no inquiry into the death of the passenger who was not in employment. That is an absurd distinction.
§ The Lord Advocate
It is bound to be the case that one can draw anomalous distinctions at the margins, but I see no great difficulty in this case. There would be a fatal accident inquiry into the death of the taxi driver, which would be of some benefit to his relatives and to the passenger's relatives. On any division there will be loose edges at the margin, but it is important not to perpetuate an illogical and damaging distinction which cannot be defended on its merits. I therefore hope that this extension will receive the support of the House.
In another very different field it seems right that compulsory inquiries should be applied—that is, to the deaths of those in custody. At present it is only the deaths of inmates of prisons and other penal institutions which qualify for compulsory public inquiry. It seems equally desirable that the deaths of persons who have been arrested but who have not yet come before the court should be treated in the same way. I hope that the extension of compulsory inquiries to this area will also be generally welcomed.
The Government have come to the view that a limit on compulsory inquiries is justified in one respect. Where the facts of the death have already been fully 1122 brought out in criminal proceedings, the Bill provides that the Lord Advocate has a discretion to dispense with an inquiry. This is contained in a provision in subsection (2) of Clause 1, which was added to the Bill during its passage in the other House. It should ensure that there is no needless and burdensome duplication of proceedings while preserving the principle that the facts of any such death must be brought out in public.
Before I conclude, I should like to direct the House's attention to certain salient points. I hope to deal with any other points at the end of the debate. Clause 1 is the general clause setting out the circumstances in which public inquiries must be held into deaths. It requires the procurator fiscal, the local public prosecutor working under my ultimate authority, to investigate the death and to apply to the sheriff for an inquiry to be held.
§ Clause 2 gives the procurator fiscal the right to obtain compulsory statements from witnesses. It is in line with his powers in criminal cases. He did not have this power before, and it should make his investigation more effective.
§ Clause 6 outlines the findings open to the sheriff at the close of the inquiry. The main change is that it will no longer be necessary to make a finding that someone is at fault. The proper purpose of the inquiry is not to make accusations but to determine the facts. A fatal accident inquiry is not a forum for accusation or condemnation. In such an inquiry there is no reason why the general rule of corroboration should be applied, because there is no accusation and no condemnation. Indeed, corroboration has already ceased to be essential in actions for damages in respect of death or personal injury, and it seems appropriate to relax the rule here too.
§ Clause 7 allows the Lord Advocate to modify procedure by rules. This was not possible under present legislation. It should allow more flexibility in adjusting procedures to changing circumstances.
§ Clause 9 makes the important extension of jurisdiction to deaths occurring on the Continental Shelf in connection with oil or other mineral operations.
§ The Bill should make inquiries into accidental deaths quicker, more effective and less expensive. It will end the 1123 unnecessary and undesirable distinction now drawn between industrial and non-industrial deaths at work. Most important it gives us the vital extension arising out of oil operations on the Continental Shelf adjacent to Scotland. I commend the Bill to the House as a sensible and overdue measure of law reform.
§ 4.47 p.m.
§ Mr. Malcolm Rifkind (Edinburgh, Pentlands)
I am happy to give the Bill a qualified welcome. It brings together a certain amount of previous legislation and it introduces a number of useful reforms. With one important exception, the Bill brings forward proposals which first appeared in the consultative document published by the last Conservative Government in 1973. It is clear from the observations of the Lord Advocate and from my interventions that there is strong disagreement over the Government's decision to reject the recommendation of the Grant Committee on fatal accident inquiries involving accidents occurring out of employment.
The subject of fatal accidents and sudden deaths does not cause partisan concern between political parties. Despite the absence of party political content, however, I hope that the House will realise the important nature of the Bill and of the important circumstances in which it will operate. The Bill is literally a matter of life and death. It will deal with human tragedies involving individuals or large numbers of people whenever fatalities occur as a result of accidents and when it is necessary, in the public interest, to establish the facts and try to prevent similar occurrences in the future.
Many of the matters in the Bill are acceptable to hon. Members. The Lord Advocate has pointed out how in future, under the Bill and in accordance with the recommendations of the Grant Committee, it is intended that the sheriff at a fatal accident inquiry will not have a jury of seven people to assist him. I accept that recommendation, but I am conscious that it is a very serious matter to dispense with the presence and participation of a jury in a matter concerned with the public interest. Fatal accident inquiries arise when there has been a disaster which causes considerable public 1124 interest. To dispense with a jury in such circumstances is unusual. Juries are normally accepted as the best guardians of the public interest. Nevertheless, it is quite clear from the recommendations of the Grant Committee that in the case of fatal accident inquiries juries do not perform any useful function.
Paragraph 319 of the evidence to the Grant Committee reads:the evidence available to us suggsts that the jury usually do no more than give effect to a verdict dictated to them by the sheriff or sheriff-substitute".The Committee said later:On balance, we take the view that what is important is the public inquiry and the hearing of the evidence and not the form of the verdict.One must accept that view and that the public interest will not in practice be harmed by the exclusion of juries from such inquiries. I understand that juries were dispensed with for a number of years during both world wars, without any adverse consequence for the public interest.
There is another area in which there is no disagreement between myself and the Lord Advocate. Clearly it is desirable that the requirement for a fatal accident inquiry should extend to fatalities that take place in the North Sea in the area of the Continental Shelf. We are well aware that in the North Sea there are men who at this very moment are pursuing what might be considered to be the most dangerous occupations in the United Kingdom. In the pursuit of extracting resources from the sea bed, men have for some years risked their lives—with a depressing number of fatalities—in fulfilling their occupations.
It is clearly an unfortunate and unnecessary gap in the law as it has stood until now that in some cases it has not been possible for the Lord Advocate to ensure that there should be inquiries when men have lost their lives in the North Sea. This is perhaps one area where an inquiry can serve its most useful purpose, because the explorations in the North Sea are a new form of technology and we have very little experience to fall back upon in comparison with other occupations and other forms of employment. An inquiry can provide the information and the assessment necessary to ensure that the methods of work 1125 employed in the North Sea are corrected so that the least possible number of fatalities and the least possible number of accidents occur in the future.
There has been some debate and discussion whether the jurisdiction of the Scottish courts over the North Sea should be assumed to have some political significance concerning North Sea oil. I simply stress that when we are considering questions of the jurisdiction of the Scottish courts it is very dangerous to assume that jurisdiction and sovereignty are related matters. The Scottish courts have jurisdiction to try a Scotsman for murder whether committed in Patagonia, Peru or Paraguay, and it would be dangerous to imply that that jurisdiction has any political consequence or significance as well.
The third and final area in which I am in broad agreement with the Lord Advocate concerns those who die while in any form of custody. It is clearly desirable that there should be an inquiry in those circumstances. This is not because our police forces or police officers give cause for general doubt but because in any circumstances where a person not at liberty has lost his life, it is clearly desirable in the public interest—and, indeed, in the interest of the police and security forces themselves—that these matters should be brought to public awareness and the full facts established.
I come now to the one area where there is major disagreement between myself and my hon. Friends on the one hand and the Lord Advocate on the other. I refer to the requirement in the legislation that there should be a mandatory inquiry irrespective of the circumstances, and irrespective of the views of the Lord Advocate, whenever there is a fatality arising out of employment.
As the Lord Advocate has indicated, the situation ever since the 1885 Act has been that a mandatory inquiry has been necessary only when there has been a fatality arising out of industrial employment. It is perhaps useful to look at what the Grant Committee said about that situation. Its views were in no way qualified and in no way ambivalent. They were quite definite. The Committee said, at paragraph 317:We take the view, along with the majority of our witnesses, that the compulsory fatal 1126 accident inquiry under the Fatal Accidents Inquiry (Scotland) Act 1895 serves no very useful purpose and should be abolished. We understand that the evidence seldom does more than establish the cause of death, which usually is already known, and that many sheriffs and sheriffs-substitute make it their business to prevent the proceedings from going wider. The jury's verdict tends to be more or less dictated to it by the sheriff or sheriff-substitute. Inquiries of this kind may have served a useful purpose in the industrial conditions that prevailed at the end of last century, but the existence of an effective corps of factory inspectors and inspectors of mines, and the enforcement of the Factories Acts and similiar legislation, in our view provides a more effective method of dealing with problems arising out of working conditions. We are not convinced that inquiries of this kind provide the relatives of the deceased with helpful information, and we are told that they can be an occasion of acute distress to close relatives. We therefore recommended that the obligatory inquiry under the 1895 Act should disappear.Those are very strong words, and it is important to stress that neither the Grant Committee nor I suggest that there should never be a fatal accident inquiry. What is suggested, in the view of the Grant Committee and in the view of the vast majority of the witnesses appearing before that Committee, is that, unless there are circumstances which lead the Lord Advocate of the day to believe that an inquiry is in the public interest, it is absurd, unnecessary, wasteful and bureaucratic that there should be an obligatory inquiry irrespective of the circumstances and irrespective of how much of a superficial formality that inquiry will be.
I was interested to see the list of the various groups whose views were sought by the Government in determining their policies for the Bill. As the Lord Advocate indicated, of 14 groups approached for their views only two, the STUC and the Law Society, took a view different from that of the Grant Committee. It is significant that, after discussion with the Government, the Law Society was prepared to withdraw its objections to a considerable extent and to leave ultimately to the discretion of the Lord Advocate the decision whether an inquiry was necessary.
Therefore, we are left simply with one body which believes that an inquiry is necessary. We are obliged to ask what will be the consequences of the decision by the STUC, which is the only body 1127 putting forward opposition to the recommendations of the Grant Committee.
§ The Lord Advocate
I hope that the hon. Gentleman will bear in mind the words I used—that the Law Society of Scotland was prepared to withdraw its objections and give the Lord Advocate a discretion only in exceptional circumstances.
§ Mr. Rifkind
I noted the words very carefully and read the words used in another place by the Minister of State. The important question is clearly that the Law Society is leaving it to the discretion of the Lord Advocate. He is to be the ultimate arbiter, and that is a fair and reasonable criterion to apply. The question is whether he is to have any discretion, as desired by the Grant Committee, the Law Society and every other body, or whether he should have no discretion at all.
I am surprised and rather saddened that the Lord Advocate should wish to remove from himself any discretion whether it is in the public interest that an inquiry should be held. This is a very important area, and we have to ask ourselves what will be the consequences of this decision.
It is important to stress that the Government are not merely rejecting the Grant Committee's views that an obligatory inquiry is unnecessary. They are doing even worse than that and are extending the sphere of obligatory inquiries to new areas which have never required obligatory inquiries in the past. Indeed, as Lord Wilson of Langside said in another place, the Government have not merely rejected the Grant Committee's recommendations. They have romped off in the other direction. It is necessary for the Lord Advocate to allay slightly more fully and comprehensively the very genuine concern of many of us as to why the Government have found this necessary.
Basically, two reasons have been given to the House for the Government's coming to this decision. First, it is said that it is very often helpful to the legal advisers of people involved in accidents that they should be able to use the evidence that emerges at an inquiry in order to assess whether legal proceedings would be desirable in their clients' interests. No doubt this is the case, and perhaps it explains 1128 the rather unusual sympathy of views between the Law Society and the STUC for once in the lives of both organisations.
I fully understand why the STUC and the Law Society take that view. However, I must stress to the Lord Advocate that the purpose is not to use the sheriff and the sheriff court and the whole inquiry system to provide to either side in potential legal proceedings information which they can easily obtain at their own expense by means of taking precognition from the individual witnesses. That should not be the purpose of the requirement of a fatal accident inquiry. By itself it is not a matter in support of which the public interest would require the weighty advice of the Grant Committee to be rejected.
The final reason for rejection of the Grant Committee's views is left in the hands of the Government. The Government believe that in the general interests of safety it is desirable that an inquiry should always be held when a fatal accident arises out of the course of employment. One can sympathise with the Government's taking that view, but one is entitled to press whether that view has any sound basis.
If the Government's concern is to promote the interests of safety, they have failed to indicate why the need for an inquiry should be concerned only with a fatality. The Lord Advocate will know that the vast majority of accidents in industry and other forms of employment do not result in fatalities and, indeed, have no severe or dangerous consequences. He will also know, because it has been well documented, that accidents which result in fatalities are not necessarily the most serious accidents. It is often a purely arbitrary matter whether an accident sadly results in a person's death or bears no relation of that kind.
The general objective of improving safety does not require a system of fatal accident inquiries to increase and enhance the area of safety which is involved. Clearly the fatalities involved, which are fortunately a relatively small number each year, are a tiny tip of the iceberg of industrial accidents and accidents arising out of other employment. That, by itself, cannot meet this requirement.
There is another consideration. As indicated by the Grant Committee, it 1129 might have been desirable to have mandatory inquiries into accidents arising out of employment 80 years ago when the original 1895 Act was introduced and when the area of legislation covering employment and safety at work was much reduced. But that is not the situation today. We now have a whole host of legislation covering particularly dangerous spheres of employment specifically concerned with promoting safety and allowing inquiries where fatalities occur. We have, for example, the Hydrogen Cyanide (Fumigation) Act 1937, the Mines and Quarries Act 1954 concerned with all underground work, the Factories Act 1961 concerned with industrial and other employment, the Pipelines Act 1962, the Gas Act 1965, the Nuclear Installations Act 1965, and the Health and Safety at Work etc. Act passed by this Government in 1974.
Each of those measures allows for inquiries. Of particular significance is the fact that in each example of legislation passed during the last 70 years in areas which have special dangers to employees, the decision whether to have an inquiry in the event of an accident is not mandatory but is discretionary. The Lord Advocate has discretion to decide whether, in the circumstances, an inquiry is necessary.
If it has proved acceptable in each of those modern statutes, dealing with particularly dangerous forms of employment, to allow discretion to the Lord Advocate, why is it necessary to insist on a mandatory inquiry in every accident which occurs from now on arising out of employment?
My final objection—I make no apology for concentrating on it—is that this measure replaces one artificial concept by another which is even more absurd and unjustifiable. I accept the Lord Advocate's view that it is unnecessary and undesirable to have a distinction between accidents arising out of industrial employment and accidents arising out of any other form of employment. However, my answer would be that neither should require a mandatory inquiry.
We are not putting forward any partial or artificial criteria. However, when the Lord Advocate insists that accidents in employment should have mandatory 1130 inquiries but that other fatalities should not, he is becoming responsible for an artificial and absurd distinction. I put to the Lord Advocate the example of the taxi driver and passenger who are both killed in the same accident. It is mandatory, and legally required, for an inquiry to be held into the death of the one but not of the other. I am aware that, as the Lord Advocate pointed out, if an inquiry were held it would obviously cover both. But does not the right hon. and learned Gentleman accept the absurdity of a law which insists on a mandatory inquiry for one and requires no inquiry into the death of another person killed in the same accident in identical circumstances?
There are other examples. If a shopkeeper and a customer both die in a fire in a shop, the shopkeeper's death requires a mandatory inquiry but the customer's death does not.
The Bill covers the self-employed. If a self-employed person has a heart attack at his work, it will be necessary in all circumstances for a full-scale inquiry to be held, although it will be a formality and a nonsense.
This artificiality cannot be in the public interest. Indeed, it was rejected by the Grant Committee and by everyone who gave evidence both to that Committee and to the Government, with the solitary exception of the STUC and, to a limited extent, the Law Society, both of which have a similar interest in this limited sphere.
We shall seek to change the Bill in Committee regarding this matter. We shall look for a more satisfactory explanation from the Government for rejecting the recommendations of the Grant Committee. We shall look for explanations which will take some account of the time, the expense and the effort which will be involved for the sheriffs, their staff, and those who serve the courts in hearing these inquiries.
I submit that if it is desired to bring to the attention of the public those fatal accidents which have important policy considerations in their background, as it were, we are more likely to achieve that result by limiting public inquiries to the matters in which the Lord Advocate, in the exercise of his discretion, believes that such inquiries are necessary.
1131 The discretion which I should propose to give to the Lord Advocate would enable him to call for an inquiry into virtually every fatality if he so chose. I do not think that he would so choose. The fact that he would not so choose is evidence of the general accepted, understood belief of all of us that many inquiries in the past have served no real useful purpose. They are formalities. It is unfortunate that our courts, particularly sheriff courts, which are already overburdened with work, should be required to go through this meaningless charade for cometic purposes which serve no useful purpose.
I hope that the Government will give some flexible consideration to these representations. With the exception of that particular provision, this is a good Bill. It puts forward desirable reforms, it consolidates measures which require to be consolidated and it is worthy of support. I hope that, on this one matter, the Lord Advocate will show himself not to have a closed mind and to be prepared to accept a useful and desirable change to the Bill.
§ 5.9 p.m.
§ Mr. Nicholas Fairbairn (Kinross and West Perthshire)
I recall that on an occasion when I was professionally engaged with the Lord Advocate he considered that the 1895 Act was passed so long ago as not to be relevant to modern circumstances. Therefore, I think it important that I declare an interest as a lawyer. Lawyers are under suspicion at the moment.
The Fatal Accidents Inquiry (Scotland) Act 1895 was introduced because—as the Lord Advocate 80 years later adumbrated would happen which is an unfortunate suggestion—the real cause of death might be hidden by employers from the public or the inquiry officers. That Act required thatall cases of death of any person or persons, whether employers or employed, engaged in any industrial employment or occupation in Scotland, due or reasonably believed to be due to an accident occuring in the course of such employment or occupationshould be inquired into.
It was clearly important in days when there were few regulations or statutory obligations on employers that when a death occurred the public should be reassured 1132 and should discover the genuine cause of death. However, during the course of the past 80 years an enormous band of legislation covering every possible form of employment, whether it be the Shops Act or any other Act, has come to pass. Accordingly, the Fatal Accidents Inquiry (Scotland) Act 1895 is now, for all genuine purposes, extinct and irrelevant.
The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1906 extended the concept of mandatory inquiries. I emphasise that they were enquiries and not trials. The process was extended at the instance of the Lord Advocate to sudden or suspicious deaths. It is important that we see the intention of these two pieces of legislation, which were passed respectively 80 and 70 years ago. We must consider whether the extension of such legislation—ignoring all that has happened since—is sensible.
The undoubted intention of the 1895 Act was, first, to allay public fear that persons might die at work for all sorts of reasons which were never disclosed and that the matter might be hushed up; secondly to stimulate the safety of the work force. Neither of those motivations can be claimed to be relevant today.
The provisions of the later Act were designed to allay public alarm when there was suspicion about a death, and, in cases where there was no prosecution, the public were allowed to see that it was right that there had not been a prosecution. I am entirely in favour of the proposal, which follows the provisions of the Prisons (Scotland) Act 1952 that where deaths occur in situations which are inevitably private and to that extent secret, there should be a full public inquiry to ensure that the public is reassured that what happens in private and secret does not remain private and secret.
It was because in 1895 there was a risk that what happened in factories would remain private and secret that the Act was necessary at all. What happens in factories now does not remain in the least private or secret. I regret to say that I find it generally offensive that the Lord Advocate should justify the Bill on the basis that, and I quote his words, "If there were not an inquiry, a fatal accident would not be investigated properly 1133 and the employer's version would be accepted". I find that a most extraordinary doctrine. I cannot conceive why the Lord Advocate imagines that it has a basis in truth.
§ The Lord Advocate
The hon. and learned Gentleman is substantially quoting from the representations made by the Law Society of Scotland.
§ Mr. Fairbairn
I was not quoting from any recommendations of the Law Society of Scotland, of which the Lord Advocate is not a member. I was quoting the words which the Lord Advocate had just used. I wrote down his words. As he knows, I greatly value what he says and I frequently write it down. In this instance he said "If there were not an inquiry, a fatal accident would not be investigated properly and the employer's version would be accepted". I cannot understand the basis for such an offensive allegation.
First, after any industrial accident there is bound to be an inquiry. Secondly, there are always witnesses and none is more forthcoming, as the Lord Advocate well knows, in matters of litigation than fellow workmates who are anxious to ensure that the truth is told and the matter is not swept under the carpet. Thirdly, I find it most offensive that it should be alleged—this is the implication of the Lord Advocate's remarks—that employers as a group, whoever they are, be they large or small, rich or poor, are the sort of people who will lie and whose lies will be accepted. That is the implication and that is the sole justification for the Lord Advocate's suggestion that we should have mandatory inquiries lest liars should get away with their lies.
Equally, liars may get away with their lies at an inquiry. If the employers are liars, they are just as likely to get away with their lies at an inquiry as anywhere else. If the employees who say that they witnessed an accident, or that the accident took a certain form, lie, they are just as likely to get away with it at an inquiry. I find it extraordinary that that that should be the sole justification.
Whom did the Lord Advocate consult? He says that 14 bodies were consulted. I regret to say that that is not my information. I am informed that not only 1134 did he not consult the Sheriffs' Association, but he apologised for not having done so. I trust that that information is correct. It seems to me extraordinary that, having set up a committee to investigate the matter at great public expense, he should then accept the view of other interests which disagreed with the Committee. It is the view of the STUC and the Law Society, and no other, that the Lord Advocate has followed.
§ The Lord Advocate
I am sure that the hon. and learned Gentleman does not want to cause confusion. Earlier the hon. and learned Gentleman asked me how many people had been consulted. In reply I gave the list of people to whom the consultative document relating to this matter had been circulated in 1973. It was as a consequence of the submissions by these bodies that the Bill was prepared. The hon. and learned Gentleman must not confuse that with specific consultations by me personally, which is another matter.
§ Mr. Fairbairn
Now we are getting a little nearer to the truth. The specific consultation which the Lord Advocate had was with the STUC and the Law Society. He did not consult the Sheriffs' Association—the people who listen to inquiries, who hear the results and who know all about them. The Lord Advocate cannot contradict this. Whoever those people were before and whatever their status or rank, they are unanimously opposed to the suggestion of mandatory inquiries of this kind, which are a waste of time and a thoroughly irresponsible action to impose on the Scottish people 80 years after the original legislation.
Let me make it clear that there is a motivation for the STUC and the Law Society to say that there should be mandatory inquiries in all situations in which there is an accident resulting in death in employment—no doubt they would extend it to all accidents. The motivation is, first, to compel the procurator fiscal to find the witnesses at public expense, to get their evidence at public expense and to present it to the court at public expense. From there lawyers could rake around and see whether there was some way in which they could present a case on behalf of the family of the deceased. That does not seem to 1135 me a proper use of public funds in a system which is meant to be inquiring into the cause of death, not the blame for death.
The second reason is that there is an interest in the Law Society. Lawyers are under attack from all sides because they are so expensive and because they allegedly sit there and take the gravy off the roast at every possible opportunity. Here is a case in which they are shown to be doing so. It is to the benefit of lawyers to have fatal accident inquiries, because they have to attend them representing the cousin, the grandmother, the daughter, the wife, or the rest of the family. Then they have to do it all over again at the consequent litigation and again on any other situation which might arise.
It is in the interests, therefore, of the profession to ensure that the gravy train keeps rolling. As a lawyer in a profession under attack, I would not defend for a moment the situation in which the profession was benefiting from unnecessary inquiries which caused immense distress to the relatives.
§ Mrs. Winifred Ewing (Moray and Nairn)
As past secretary and president of the Glasgow Bar Association, which comprises almost every court solicitor in Glasgow, numbering about 250, which is more than the Bar in Edinburgh, may I say that we agree with the hon. and learned Member? I understand that we have not been consulted by the Lord Advocate. Our view is that this proposal would involve unnecessary expense and cause unnecessary pain and suffering for those who have to attend the inquiries. We regret that we have to go to them, and the fewer we have to attend the better. We trust the system of public prosecution in Scotland to keep them to a minimum.
§ Mr. Fairbairn
I am obliged to the hon. Lady, who has given us the benefit of her enormous experience. Once again it appears that the Lord Advocate did not consult those concerned, and that is a matter for distress. I believe that those concerned with these matters are a little closer to them than is the STUC, which has a lot of other important matters to consider.
There are other matters which cause me distress. All the witnesses and relatives 1136 have to go through the process several times, and that is offensive. The evidence which is given in a fatal accident inquiry is always much closer to the event than any consequent litigation and any consequent prosecution. Accordingly, lawyers have an absolute field-day, because they have under their little mitts exactly what the witness said a fortnight, three weeks, or a month after the accident.
They say to a witness "Where was the ladder when he fell off, and how did he fall?" The witness replies "The ladder was two feet from the edge and he fell on his head". The lawyer asks "Do you remember that two and a half years ago you said that the ladder was three feet away and that he fell on his arm? You are lying, are you not?" One of the worst features of these fatal accident inquiries is that they provide lawyers with the capacity to investigate the inevitable fallibility of the human mind, and I find that offensive. The less that opportunity exists the better.
There is another matter of concern. The sheriff is to be entitled to make a large number of findings. He is to be entitled under Clause 4 to ensure that the rules of evidence shall be, as nearly as possible, those applicable in an ordinary civil cause. That is a very dangerous concept. If the sheriff is to make absolute findings under Clause 6 concerning where and when the death took place, the cause or causes of it, any accident resulting in it, and any reasonable precautions which could have been taken, he will be expressing opinions which have nothing to do with the concept of an inquiry as if they had the force of law.
Let us be clear what this Bill will provide. Every Member of Parliament is perpetually on duty and therefore the death of every Member of Parliament in Scotland will have to be a subject for one of these asinine inquiries. The death of every person who dies in a motor accident and the death of anyone who has a heart attack or who is ill at work and dies later will have to be the subject of such an inquiry.
But there are much more important matters. I instance industrial diseases. Those who are injured at work by diseases such as pneumoconiosis and who die will not be the subject of a fatal accident inquiry because pneumoconiosis 1137 is not an accident. There is already legislation which covers almost every form of industrial situation which could arise and into which it would be sensible for the public to have an inquiry. Therefore, it is superfluous, repetitive and wrong to extend legislation which was necessary 80 years ago at a time when there is a vast volume of legislation covering all possible cases.
Why is it mandatory? Either it is because the Lord Advocate's judgment is not trusted by the STUC, or there is another reason. I have always taken the view that the right hon. Gentleman's judgment was impeccable and totally praiseworthy. If any hon. Member is prepared to say that his judgment is not and will not always be perfect, let him stand up and say so. If it is reasonable for the Lord Advocate to say that a case should be inquired into, let us have that system. If there is another reason, which the Bill does not disclose—in order, for example, that lawyers and litigators may find a furrow to their advantage by having inquiries at the public expense and at the expense of the tax on the widow—that is offensive and wrong, and I hope that the Government will take another look at it.
Under Clause 2 the Lord Advocate can avoid such an inquiry if there has been a previous criminal proceeding. It is unlikely from my experience that under Clause 1(2) criminal proceedings will precede inquiries. What worries me much more, and it is a point which I have raised with the Lord Advocate in a number of cases and which he said he was considering in the prospect of the Bill, is the position when a public inquiry precedes criminal proceedings.
There is a system in England, of which I totally disapprove, whereby the rights and wrongs of a prosecution are aired and investigated before the public long before the man presumed to be innocent is tried. There is a danger that if there is a public inquiry into a suspicious death, the Press will publish the finding and recommendations of the jury.
The jury's recommendation at an inquest in England, for instance, is that someone is or is not guilty of something. In the Lord Lucan case the English jury found that the victim was murdered. In 1138 other words, it found that the crime of murder had been committed by someone who has yet to be accused of it and who is presumed to be innocent of it. I find that most abhorrent and contrary to the whole spirit of justice.
I should like the Government to consider inserting a saving clause in the Bill to provide that if the results of an inquiry held into a suspicious death are published, there cannot be a criminal prosecution against any person named in any finding by the sheriff who conducts that inquiry. That is basic to the concept of justice. I ask the Lord Advocate to look into that.
There are improvements in this legislation, but to drag the necessary legislation of the last century into the last quarter of this and to extend it, when all the requirements that the original legislation covered have been covered by superior legislation which has improved industrial safety and allayed public alarm, is wrong. It is very wrong if it is done in order to benefit either lazy or greedy lawyers or litigators who believe that in the ordinary course of justice they would not stand a proper chance of establishing a just claim.
§ 5.31 p.m.
§ Mr. George Thompson (Galloway)
The hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) spoke about the public's fear that the lawyers get the gravy off the roast. Looking at the lawyers in the House this afternoon, I feel sure that most of them could do with a good meal of meat and perhaps they should try the roast beef. I was grateful to the hon. and learned Gentleman for raising the lid off the pot slightly for a moment.
My colleagues and I find the Bill much better than the curate's egg: it is good almost all the way through. We are pretty well in agreement with all hon. Members who have spoken so far. The Bill is meant is consolidate the law. That is laudable and the Lord Advocate is setting a good example to other Departments. There are plenty of areas of the law where consolidation is desirable. The Bill is meant to modernise procedure. That is excellent. It is meant to implement the report of the high powered committee that sat under the chairmanship of Lord 1139 Grant. It implements that report, with the exception of the one deviation to which the Lord Advocate referred. It is there that I take exception to what is proposed.
I speak not as a lawyer but simply as a layman looking at the system. I should have agreed with the Grant Committee. However, if the STUC fears a move to the discretionary inquiry into industrial accidents, we should accept its view if only to allay the fears of the men and women for whom it speaks. I assume that we must take it that the STUC speaks from experience of the way the law works as present.
In relation to other fatal accidents in which the Lord Advocate at present has discretion but where, under the Bill, he will no longer have that discretion, I agree with the status quo. Let these inquiries continue to be discretionary. We should begin by asking why we should have change. For instance, the self-employed are to be brought within the provisions of the Bill. Have organisations representing the self-employed asked for mandatory enquiries to cover the death of their members while at work? I meet the self-employed regularly. They write to me frequently, as well as telephoning me. Never in all my encounters with them have they asked me to seek mandatory fatal accident inquiries into the deaths of their members.
If the Government sincerely want to meet the desires of the self-employed they must look to other spheres. Let them look, for instance, at capital transfer tax and effect changes there that will be to the satisfaction of the self-employed. Let the Government abolish the 8 per cent, levy which was imposed last January. Let them abolish or at least simplify VAT. Those are subjects about which the self-employed approach me and ask me to make representations to the Government.
I wonder whether we are not faced with an attempt to make everything neat and tidy. There was an article published in last Saturday's Scotsman which dealt with the "Nanny complex"—Nanny comes rushing forward and sorts out everything. I hope that the Lord Advocate's Department will not participate in that complex with the Scottish Office. I hope that it is not a creeping disease that passes from one Department to another. We should have enough 1140 sense to let well alone and to resist the mere itch for tidiness.
I also wondered whether the Lord Advocate was simply fed up with exercising discretion and desirous of getting rid of the burden. Perhaps he and his officials are in that state, but he does not look as though it is getting him down. He always has a commendable seriousness of expression, but I have often detected a twinkle in his eye, which would not be there if he were over-burdened by his position. If his Department needs encouragement, we should prefer to encourage him and his staff by telling them that they are doing a good job and that the Scottish people appreciate their devoted work. That is why I have not heard of any widespread demands—indeed, any demands at all—for a change in this part of the present system.
Naturally, hon. Members expect someone on this Bench to suspect a further and more desperate disease, namely creeping Anglicisation.
§ Mr. Thompson
I fear that you, Mr. Deputy Speaker, would not allow me to go down the path of divorce law reform.
§ Mr. Fairbairn
I can help the hon. Member for Galloway (Mr. Thompson) on that, although I do not like doing so. He might like to know that the English got the idea for their present divorce law from the minority report of Lord Walker in the 1948 Royal Commission.
§ Mr. Thompson
I am much obliged to the hon. and learned Gentleman for that information, which I shall certainly treasure for use on another occasion.
§ Mr. Thompson
I have conversed with lawyers on many occasions and I have not had to pay on every occasion. I wondered whether the Lord Advocate had been listening to Olivia in Twelfth Night when she says to the clown, anent 1141 that glorious old reprobate, Sir Toby Belch:Go thou and seek the crowner and let him sit o' my coz;"—or, whoever it may be—for he's in the third degree of drink—he's drowned"—or whatever the case may be. I am sure that that is not the case—that there is no desire to bring the coroner over the border. I am sure that the Bill is a very Scottish Bill, despite an amendment made in another place to which I shall refer later.
The Government owe us sounder reasons for altering a system that has worked well, because other aspects need to be covered forbye the purely legal. There is the personal element. The sheriffs will find their work increased. I notice from a debate in another place that Lord Kirkhill estimated that the number of inquiries would rise by about 30 per cent. Perhaps the Lord Advocate will confirm or deny that. Most of these inquiries, even now, result in a formal verdict. Are we justified in increasing their number without the compelling reason of the public good moving us to do so?
The Explanatory and Financial Memorandum says:The Bill is unlikely to cause any increase in Government expenditure. The financial effects of any increase in the number of inquiries held resulting from the terms of the Bill should be completely offset by the saving consequent on ceasing to have juries in such inquiries.Fair enough! We get rid of the seven jurors and we save money. But then we increase the number of cases by 30 per cent, and we have to pay expenses to witnesses and persons, of whom I had never heard until I read the Bill, called "havers", with a short "a".
§ Mr. Thompson
That would be even more interesting. Perhaps the Lord Advocate will correct both of us in due course. Certainly if they are pronounced "havers" as I suggest that will lead to considerable laughter upon benches other than mine and in other places.
It is, therefore, by no means certain that we shall save money. I suspect that 1142 probably the opposite will occur. Besides that, sheriffs and procurators fiscal will have to be paid for their services, too—or will the extra work simply be added to what they are expected to do for their salaries? I suppose that that is probably the case.
What of the effect on the non-legal people involved? It must be true of lawyers, as it must be true of doctors, that they are in the habit of dealing with death and the attendant circumstances and that necessarily they have to adopt for the sake of their psychological stability a clinical and objective approach. I am not saying that their hearts are harder than mine or that of anyone else, but they are inured to dealing with these cases.
We are asking relatives to renew their grief, not only in private but in public, and we are doing this in an age when society has so much lost the means of helping people to cope with bereavement. Perhaps we shall be bringing out into the public gaze pitiful little secrets of the family. Perhaps someone who is an alcoholic will be involved. That fact will no doubt be brought out in the inquiry, whereas in present circumstances, unless the Lord Advocate had ordered an inquiry, that would remain hidden from the public.
I have a confession to make, and this being Shrove Tuesday, I suppose that it is the appropriate time to make it, although I hasten to add that it is a sin of which I have long since repented and which I no longer commit. I would that I could say that about all my sins.
§ Mr. Thompson
When I was a youngster, I used to read a Sunday newspaper called the News of the World. Shocking—and I am sure that hon. Members will agree with me in that. It was all that we had to do, sometimes, in the Army on a Sunday afternoon.
Reading the accounts that came from coroner's courts, I used to think to myself "Thank God that we do not have this system in Scotland." Now here we are introducing a little bit of it, at least. 1143 We shall often be providing only the provender for the ghoulish in the media, in society and in ourselves. Is it really necessary for us to do this?
I believe that before we accept the Government's view we must be quite convinced in our own minds and hearts that this distress and this decline of the Scottish social ethos will be largely offset by preponderantly greater benefit to the common good. Unless the Government can satisfy us of that, I am sure that my hon. Friends and I will wish to press them further on the matter in Committee or on Report.
We welcome the extension of the mandatory inquiry to cover the deaths of those who die while in custody though not actually in prison, because we feel that in such cases there is serious public concern. Therefore, the common good must prevail over private grief in this matter.
I very much welcome the extension of the mandatory inquiry to cover fatal accidents and deaths which occur in the Scottish area of the Continental Shelf and which are connected with the exploration for and exploitation of the natural resources on or under the sea bed. In November I asked a Question of the Secretary of State:how many deaths in oil-related work have occurred since North Sea oil rig building and maintenance began.The answer was:The table below shows the numbers of deaths on oil rigs and associated ships reported to the Registrar General of Shipping and Seamen. Deaths occurring in other aspects of oil-related work are not separately identifiable as such."—[Official Report, 6th November 1975; Vol. 899, c. 322.]Leaving aside the associated ships, the figures given to me for oil rigs were three deaths in 1973, nine in 1974 and eight in 1975—to the beginning of November. Therefore, we have 25 deaths that should have been investigated, and I assume that most of them were not investigated because of the scruples that the Crown Office had about the state of the law. Therefore, we are bound to welcome that clause.
I did a comparative study of the Bill as originally introduced into the House of Lords and the Bill as it emerged from their Lordships' House. I discovered a charming little point for what the French call la petitie histoire. I discovered that 1144 there had been an amendment to Clause 9. The original wording wasthe Scottish area of the Continental Shelf.I must say that I thought that some hon. Members would immediately have jumped on me for using that phrase a few moments ago. This phrase caused palpitations in certain noble hearts, and so it was amended. It was said that there were mischievous persons—I cannot think who those might have been—who might use the phrase. Perhaps that fear is understandable, however, if at the next election it is feared that these unnamed persons turn out to have a name and to be and to bear the name legion.
In conclusion, like the official Opposition we give the Bill a qualified welcome.
§ 5.47 p.m.
§ Mr. Robert Hughes (Aberdeen, North)
In speaking immediately after the hon. Member for Galloway (Mr. Thompson), I can well understand that someone who had to while away his Sundays in the Army by reading the News of the World should be concerned about the ghoulish aspect of the media, their intrusion into private grief and the way in which they sensationalise many tragedies which occur from time to time in accidents. I understand, therefore, that the hon. Gentleman has his doubts—I think that he was expressing them on behalf of the SNP—about the necessity for mandatory inquiries into fatal accidents.
I must say to the hon. Gentleman, however, that it is a great pity that, no matter what is under discussion, the first question that has to be answered by SNP members in their dealing with any Bill is whether it involves creeping Anglicisation. In other words, they decide whether some part of English law is being imported into Scots law and, if so, they begin to wonder whether it is a good thing or a bad thing.
§ Mr. Thompson
Will the hon. Gentleman accept that this item was the fourth in the series that I mentioned? Will he further accept that I said quite distinctly that because the STUC wanted to continue the mandatory inquiry into fatal industrial accidents, my hon. Friends and I were prepared to go along with the STUC on the grounds that it was speaking from experience and was worth listening to.
§ Mr. Hughes
Yes, I do not dispute that at all. Nevertheless, the point that I am making is perfectly valid. This constant repetition—it is no use the hon. Member for Moray and Nairn (Mrs. Ewing) shaking her head, because if a spokesman of her party says that her party is worried about the possibility of creeping Anglicisation—it sounded a very complicated phrase—I must take it that he means it. My view is that if some part of law of England is superior to what we have in Scotland, by all means let us import it. Let us import law from France, Italy, or anywhere else if by so doing we shall improve our law. If the English legal profession and the English legal departments decided that there was something good in Scots law which they wanted to import into England, I should think that that was something to be pleased about and not necessarily something to complain about.
§ Mrs. Winifred Ewing
The evolution of Scots law is a history of comparative study. Scots lawyers have examined the best law to be found in Europe and England and have borrowed what they considered to be good. It is absurd to accuse someone of objecting to Anglicisation for the sake of it when a constructive point is being made about a part of English law that is bad. My hon. Friend the Member for Galloway (Mr. Thompson) is objecting to that process because it is illogical.
§ Mr. Hughes
The hon. Lady makes my point. If her hon. Friend the Member for Galloway had said precisely what she has said, there would have been no quarrel. If it is said that it is a bad piece of law and should not be in Scots law, all well and good. However, a piece of law is not necessarily bad because it comes from England.
§ Mrs. Winifred Ewing rose—
§ Mr. Hughes
We shall be able to check Hansard tomorrow to see what the hon. Gentleman said, but I think that it is within our memory that he said that he was worried about creeping Anglicisation. I wish that members of the Scottish National Party would not use such phrases. They cast doubt on the way in which they view these matters. I am 1146 glad that in essence the hon. Member for Moray and Nairn agrees that in Scots law we have what is good, irrespective of whether it has come from within Scotland or outside. If members of the SNP take a little more care about expressing themselves, we shall all get along much better.
I agree with the hon. Member for Galloway about Clause 9. It clearly provides that any death or accident which occurs on the Continental Shelf under the Continental Shelf Act 1964 shall be deemed to have happened in Scotland. That is a first-class idea, but I am slightly worried because Schedule 1(3) seems to some extent to modify and contradict what appears in Clause 9. Schedule 1(3) reads:If an inquiry is held in pursuance of regulations under this Act"—That is the Mineral Workings (Offshore Installations) Act 1971—into an accident which causes the death of any person, no inquiry with regard to that death shall, unless the Lord Advocate otherwise directs, be held in pursuance of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1975.I ask my right hon. and learned Friend the Lord Advocate—I apologise for not hearing his opening speech—how Clause 9 and Schedule 1(3) will marry. What will be the criteria? Who will decide whether an inquiry shall be held under the Mineral Workings (Offshore Installations) Act 1971 or under this Bill? It is clear that there is a distinction and in these circumstances it may be that my right hon. and learned Friend will consider it unnecessary to have a fatal accident inquiry. The powers that be who separate the 1971 Act will have to work in close liaison with the Lord Advocate's Department when there is a fatal accident.
There have been all too many fatal accidents in the North Sea since exploration began. We all hope that further tragedies will not take place, but we are aware of the tragedy that took place off the Norwegian coast within the past couple of days. I hope that my right hon. and learned Friend will tell me how the clause and the schedule will operate, and who will make the decision to have a fatal accident inquiry.
1147 I am interested in Clause 4(2) which provides:The wife or husband, or the nearest known relative, and the employer … may appear and produce evidence at the inquiry.I accept much of what the hon. Member for Galloway said about private grief. Much of the grief that comes to my attention is suffered by relatives who feel that something happened at the accident which has been hidden from them. Sometimes they feel that there has been misconduct or carelessness on behalf of the employer. Alternatively, they feel that there has been a lack of proper discussion of safety regulations. Very often they feel that the fatal accident inquiry does not bring out those matters. That is why I am interested to see that Clause 7(1)(b) provides:The Lord Advocate may, by rules, provide in relation to inquiries under this Act … for the representation, on such conditions as may be specified in the rules, of any person who is entitled by virtue of this Act to appear at the inquiry.All of us know of different circumstances in which people have felt that they wanted to bring their own experts to fatal accident inquiries to counter the experts of, for example, the oil companies, undertakings which have an immense amount of wealth and expertise at their command. That applies especially to accidents that have taken place during the operations in the North Sea, but it applies to accidents that have taken place on land.
I know that my hon. Friend the Member for Kingston upon Hull, East (Mr. Prescott), who is interested in the affairs of the National Union of Seamen, spent many long hours on a case in which the widow felt that if she could produce her own experts, she could prove that the accident was not the fault of the diver, her husband. She contended that the accident occurred because of a lack of responsibility on the part of the company concerned. I know that my right hon. and learned Friend is aware of the interest of my hon. Friend in that case.
What does my right hon. and learned Friend mean byprovide in relation to inquiries … for the representation, on such conditions …"?Does that mean that there will be a sort of legal aid scheme for relatives that will enable them to employ counsel on their behalf, and, if necessary, experts? This 1148 is a matter that also applies to accidents on land. I have in mind a situation which arose many years ago when a lorry driver was involved in a fatal accident. There was strong suspicion that he had been sent off on a long journey after having worked eight hours for someone else. That suspicion never came out in court, for reasons which are understandable. I think that expert witnesses provided by the widow might have been able to counter the evidence given on behalf of the other side.
I hope that my right hon. and learned Friend will tell us how Clause 9 and Schedule 1(3) will operate together and what he has in mind for the provision of aid and assistance to relatives who wish to pursue a serious case, and perhaps at length, at a fatal accident inquiry.
§ 5.58 p.m.
§ Mr. Iain Sproat (Aberdeen, South)
begin by making two comments on the speech of the hon. Member for Galloway (Mr. Thompson). My first is that I was largely in agreement with him when I first examined the Bill. When I reached page iii I was delighted to find that the Bill wasunlikely to cause any increase in Government expenditure.In the last paragraph of the same page we read that the Billis unlikely to lead to any increase in the staff either of the procurator fiscal service or of the Scottish courts service.I am sure that we all wish that more Bills that come before the House would not add to public expenditure, or increase the number of civil servants or staffs of the Departments concerned.
As we look further into the Bill and into the debates in another place we find that while it is true that, on the one hand, we are decreasing expenditure, on the other hand, we are likely to increase the number of inquiries by 30 per cent. I ask the Lord Advocate to quantify in money terms the likely savings and the likely increases so that we can know the true financial position. It is mildly misleading for the Bill to state that its provisions are unlikely to increase Government expenditure when the number of inquiries will increase by 30 per cent., with all the consequent expenses. Perhaps the Lord Advocate will explain the situation a little more fully.
1149 The hon. Member for Galloway mentioned defining the so-called Scottish area of the North Sea. On previous legislation SNP Members attempted in Committee to extrapolate the argument in relation to the British National Oil Corporation by saying that the North Sea came under Scottish law. They claimed that in that way the oil became Scottish oil both now and in the future.
It is necessary to nail that absurd misstatement now so that never again in Standing Committee proceedings can SNP Members say "But the Bill shows that the oil falls within the Scottish sector and is therefore Scottish oil." We now know that two-thirds of the oil lies off the Shetlands and therefore is not Scottish oil. Since another large proportion lies within the English sector, that leaves only a small part to be fought over by the SNP.
The main reason for my contribution to this debate lies in the fact that I wish to make particular reference to Clause 9, which relates to the Continental Shelf. I realise that by taking part in this debate I am almost offering myself as a member of the Standing Committee—a Committee in which there will obviously be a considerable amount of bickering between lawyers on either side, and certainly between the Glasgow and Edinburgh Bars.
§ Mr. Robert Hughes
If the fact that I have contributed to this debate means that I am laying myself open to membership of the Standing Committee, I shall immediately withdraw every word I have said.
§ Mr. Sproat
Despite what the hon. Gentleman says, I think that he will discover that he and I will be drafted as Members of that Committee. Incidentally, it was interesting to hear the trade secrets of the legal profession disclosed by my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn). I wish only to point out that a great many hon. Members support the Government's move to set up a Royal Commission on legal charges.
I return to Clause 9. I very much welcome the extension of these provisions to the area of offshore activities, particularly as that is an area where aspects relating to technical exploration and 1150 accident causes are likely to be less known than in other industries. The gravity of the present situation has been mentioned by a number of hon. Members. The figures of deaths and serious accidents in the last 10 years as a result of North Sea operations are very grave. We have been told that in the last 10 years there have been 50 deaths and 250 serious accidents.
When considering the situation of divers, we enter an important sub-division of these provisions. A Written Answer by the Minister of State, Department of Energy, informed me that 19 diving deaths and two serious injuries had been reported to the Government up to 26th February of this year. I gather that one of those deaths resulted from natural causes. That answer made clear that:The figures relate to all diving operations connected with the exploration and exploitation of the United Kingdom continental shelf, including diving from and around oil and gas installations, British registered vessels, other vessels and pipe-laying barges. They also include deaths reported within United Kingdom territorial waters and internal waters under the Factories Act regulations."—[Official Report, 1st March 1976; Vol. 906, c. 427.]Anybody who has spoken to executives in oil companies knows the great care taken to protect divers. I cast no aspersions on the efficiency of those companies and the care with which they undertake their activities. Nevertheless, it is not surprising that a number of deaths have occurred, and it will not be surprising if many fatal accident inquiries take place if the present situation continues in regard to diving operations. When I looked into the situation, I was amazed to discover that the requirements in respect of diving as laid down in the regulations promulgated in July 1974 were vague and loose. I do not wish to make any party point on this issue. I am merely saying that I cannot understand how Governments past and present have allowed the situation to remain so vague.
I shall not read from the regulations but, by and large, they lay down that nobody shall be allowed to dive if he has not had some experience of diving or of handling diving equipment, but they do not say how much experience such a person requires. That is not good enough. The provisions must be tightened up and no doubt as a result 1151 of this debate and the deliberations in Committee the Government will be urged to improve the situation.
I should like to see some form of licensing arrangement aimed at giving a proper training to divers, with the introduction of proficiency examinations, so that there should be no unnecessary accidents. This is a subject for the operation of the Training Services Agency, together with industry and unions, and I believe that that suggestion could be examined with profit for all. However, apart from those small points, I give a qualified welcome to the Bill.
§ 6.6 p.m.
§ Mr. Hamish Gray (Ross and Cromarty)
We have had a useful, if short, debate on the Bill. Many points have been raised which no doubt will be explored further in Committee.
My hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind), in giving a qualified welcome to the Bill on behalf of the Opposition, dealt with most of the major changes envisaged in the legislation. He mentioned inquiries carried out by sheriffs rather than by sheriffs and juries as the method to be used in future. He also drew attention to the fact that any accident at work resulting in death will be considered by an inquiry. That process appears to be unnecessary and seems to run counter to the recommendations of the Grant Committee. No doubt that matter can be pursued at a later stage.
My hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn) gave an interesting résumé of the 1895 and 1906 Acts of Parliament governing accidents at work. To those of us who are not lawyers, it was interesting to hear him turn away work from his own profession—a practice of which the legal profession is not usually guilty, as I know from my cost when I tried to table an amendment to provide for divorce proceedings to be taken in sheriff courts. I then found the whole weight of the legal opinion in the House ranged against me. I still hope that that matter will be sorted out in legislation which has recently received a Second Reading. Nevertheless, my hon. and learned Friend avoided mentioning the amount of fees. He referred discreetly to fees but went no further.
1152 The hon. Member for Galloway (Mr. Thompson) mentioned the self-employed. I must inform the hon. Gentleman that I have had no representations from the self-employed on this issue. The hon. Gentleman said that the criterion by which the Bill should be measured was its benefits in relation to the common good. The hon. Member for Aberdeen, North (Mr. Hughes) made some interesting points which I shall not go over again. No doubt they were noted by the Lord Advocate, who will probably try to answer them in winding up the debate.
As always, my hon. Friend the Member for Aberdeen, South (Mr. Sproat) could not resist the opportunity to disagree with the hon. Member for Galloway. My hon. Friend, who comes from a fishing city, usually has the knack, when he drags his net low, of not catching a sprat but invariably landing a Nat.
On a more serious note, we are grateful for the statistics that my hon. Friend gave us about accidents and divers. This is always a matter of great concern to anybody who represents an oil constituency, and my hon. Friend has been very worried about the problems faced by companies in exploration and the tragic deaths which have occurred on too many occasions. The concern over these accidents will be relieved to some extent by the knowledge that in future they will be fully investigated. This is one area in which we have no disagreement with the Bill, though we disagree that it should be extended to all fatal accidents in industry and other forms of work.
I was surprised that the Lord Advocate did not devote more time to Clause 9 of the Bill, to which other hon. Members have referred briefly. It is one of the most important clauses in the Bill. I was equally surprised that the Minister of State in another place paid very little attention to it. He said:
Finally, and most importantly, it enables public inquiries into all cases of fatal accidents connected with oil operations on the Continental Shelf. I therefore commend the Bill to your Lordships' House."—[Official Report, House of Lords, 9th December 1975. Vol. 366, cc. 823–24.]Reference is made in the clause to Section 3(2) of the Continental Shelf Act 1964, which deals with the application of criminal and civil law:in accordance with the law in force in such part of the United Kingdom as may be 1153 specified in the Order, of questions arising out of acts or omissions taking place in a designated area, or in any part of such an area, in connection with the exploration of the sea bed or subsoil or the exploitation of their natural resources, and for conferring jurisdiction with respect to such questions on courts in any part of the United Kingdom so specified.The effect of this would be that Section 3 and Orders in Council would give Scottish courts criminal and civil jurisdiction over certain areas of the North Sea, termed the "Scottish areas". Likewise, English courts will presumably have jurisdiction over English areas.
§ Clause 9 appears to have the effect of providing that accidents or deaths in the Scottish area can be investigated by an inquiry in Scotland. In effect, it is extending Section 3 of the 1964 Act to public inquiries. The question is whether Clause 9, in addition to its apparent effect, can have a wider effect on the question of which areas of the North Sea belong to Scotland in the unlikely event—I am not making a political point but am merely stating a fact—of Scotland separating from the United Kingdom. If, for example, the International Court of Justice were to decide the question of title or sovereignty, it might well consider the question: whose law prevails? That would not be conclusive, but it would be persuasive, and would unquestionably be used. Clause 9, in conjunction with Section 3 of the 1964 Act, could prove a suitable launching pad for a strong argument about sovereignty and ownership.
§ Lines 22 and 23 on page 7 of the Bill refer specifically to Scotland. There appears to be no suggestion in the Bill that accidents in the English area should be considered as if they had occurred in England. What is the position regarding jurisdiction for English inquiries into fatal accidents on, for example, oil rigs or platforms in the English area? I ask because there might be considerable Scottish interest, for instance, in the people involved.
The co-ordinates of latitude and longitude in the Orders in Council which define English and Scottish areas are more an exercise in navigation than in law. I find it extremely difficult to determine what they resolve. Could the Lord Advocate give us an indication of his interpretation
of the term "Scottish waters"? In an interesting article in The Times on 1st March, Mr. Hugh Stephenson wrote:
If there were a break-up of the Union, the matter would have to be settled between the two new countries. Under the original convention, in case of dispute, the line would normally be expected to be one at right angles to the line of the coast at the point where the land boundary ends. On this basis, a Continental Shelf boundary would run much more nearly north-cast.
This may have far-reaching implications for the ownership of various oilfields. I appreciate that I should be out of order to pursue this point under the Bill, but it is an interesting matter which I should like the Lord Advocate to deal with when he replies.
§ The nationalist interpretation has always been that everything north of latitude 55 degrees 50 minutes is Scottish. This is based on the Continental Shelf (Jurisdiction) Order 1968, but that Order was not intended to be used for anything as far-reaching as a determination of the ownership or sovereignty of these fields.
§ On a more technical and legal matter, I understand that there is no question of any repeal of the 1968 Order. In Schedule 1 to the Bill, however, a list is given of Acts which will require to be amended if the Bill becomes law, and in Schedule 2 there is a list of Acts which require to be repealed. Will the Lord Advocate confirm that the 1964 and 1968 legislation is not being amended?
§ I reiterate what my hon. Friend the Member for Pentlands said. We think that the Bill is an improvement. There are certain amendments which we shall wish to argue later, but we welcome the Bill and hope that it will receive a Second Reading.
§ 6.21 p.m.
§ The Lord Advocate
With the leave of the House, Mr. Speaker, I should like to reply. I am grateful to hon. Members who have given the Bill a welcome, even if it is a qualified one. A useful debate can take place on the issues to which the qualifications mainly relate.
In reply to the hon. Member for Ross and Cromarty (Mr. Gray), I do not want to be drawn into specific answers to the many pressing and cogent questions he asked about the international law of the sea and the Continental Shelf. My reading 1155 of the position is that the Continental Shelf Act and the associated legislation all relate to previous international conventions and there can be no doubt that the international person who negotiated those conventions on behalf of this country was the United Kingdom. Only one sovereign Power is involved, and that is the United Kingdom. It follows from that that no question can arise of there being any implication of law arising out of the arguments to which the hon. Member referred.
In international matters regard would have to be had, as it always is, to the broad facts and to what is recognised as custom or practice by other international persons. No doubt these matters can be considered in that context, but there can be little doubt that there is only one international person involved and that is the sovereign Power of the United Kingdom.
That would rule out consideration of any detailed inference to be drawn, for example, from the direction in which a particular line is drawn or area is taken up under a statutory provision when it is clearly taken up merely to achieve a utilitarian division of labour between one jurisdiction with the United Kingdom and another jurisdiction within that same sovereign Power.
Coming to the main principles of the Bill, the hon. Member for Edinburgh, Pentlands (Mr. Rifkind) rejected mandatory inquiries as wasteful and bureaucratic. That is an issue between the two sides on which we can have a useful and constructive dialogue. Objections have been made in the course of the debate to mandatory inquiries, and the reasons why they are desirable have been touched on by several hon. Members. Those reasons amount to compelling reasons of public good. Unless one can say that there are strong reasons of public good why public inquiries into fatalities should be mandatory, one should accept that no case is made for them to be mandatory. To that extent we accept that that is the issue between us.
The Grant Committee's Report does not contain a strong, conclusive statement of the position. In Recommendation 317 the Committee takes the view, along with the majority of the witnesses, that the compulsory fatal accident inquiry serves no very useful purpose and 1156 should be abolished. There were divided views in evidence before the Grant Committee, and it is clear from the Report that the Committee would have reflected strong submissions had they been made, for example, by the Law Society of Scotland or the STUC on the basis on which they were presented to the Government after the consultative document was issued in 1973.
There is no sinister implication to be drawn from that. It is common, after a Royal Commission or committee of inquiry has heard evidence, for Government proposals to be put forward in a consultative document, a Green Paper or a White Paper and for people who examine those proposals to see for the first time implications which they do not like and which they would have brought to the attention of the committee or Royal Commission had they been aware of them beforehand. In that light the history of events is understandable. In 1973, when the consultative document put forward the suggestion that mandatory inquiries should be dispensed with, the STUC on the one hand and the Law Society of Scotland on the other began to see difficulties which they presented in memoranda to the then Government. It is those memoranda which gave rise to the change of view of the present Government.
After carefully considering the whole issue, the Government reached the view that it would be wrong not to hold an inquiry where public disclosure of a danger leading to a fatality is an important factor and where the protection of safety, by opening the door of the public inquiry to the possibility of further proceedings by civil action or otherwise, where fault is proved is an important factor. The Government have therefore reached the view that this procedure is appropriate.
The hon. Member for Pentlands said that it was unusual for two such diverse bodies as the Law Society and the STUC to march in step. Is not the fact that they are doing so a strong measure of support for the Government?
§ Mr. Rifkind
Is the right hon. and learned Gentleman suggesting that in rejecting these recommendations the Government have had before them information or representations which were 1157 not available to the Grant Committee? If he is, will he say who were the minority of witnesses who appeared before the Committee and recommended the continuation of mandatory inquiries, other than the STUC and the Law Society which have continued their previous position?
§ The Lord Advocate
All I am saying is that strong representations were received, after the Grant Committee reported and after the consultative document was circulated, from these two sources—the Law Society of Scotland and the STUC. I accept much of what? he hon. Member for Galloway (Mr. Thompson) said in this regard. When it comes to the crunch, despite the disparaging noises made by the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) about the members of the STUC, the members of the trade unions in Scotland who make up the STUC are experienced in this sphere and are the people who are subject to the risk of death by accident at work. The Law Society was prepared to effect a compromise, but a compromise would have proved unsatisfactory. Where both bodies are anxious to ensure that there is a universal net to catch accidents which cause death during work, we should be loth, perhaps for abstract rather than concrete reasons, to abolish the mandatory inquiry. We can discuss this matter at greater length in Committee.
§ Mr. Thompson
I am not clear from reading the report of the debate in another place whether the STUC and the Law Society recommended the extension of the mandatory inquiry to cover the self-employed and others.
§ The Lord Advocate
The answer to that is definitely "No". As I said in my opening speech, the Government have come to this matter in stages. Having decided in principle, for reasons that the hon. Member understands, that there should be a continuation of the mandatory inquiries, we then found that other legislation, particularly the Health and Safety at Work etc. Act 1974, made a distinction between industrial and non-industrial employment quite unreasonable. If one got that far, one is then dealing with fatalities at work. If they are significant and important because of 1158 developments in industrial and non-industrial work, is it to be said that, where self-employed people or employers themselves are working with similar machinery or in a similarly dangerous situation, there should be no fatal accident inquiry? It would be illogical to exclude this small minority of cases when there are inquiries into all other fatalities at work.
As for the quantity of work and the question whether there would be an increase in the number of fatal accident inquiries, I can reassure hon. Members. The best estimate we can make is that the increase in the number of cases in any one year is likely to be about 75. I do not think I can venture at this stage to say what that might mean in terms of expenditure, but it is obvious that one can quantify the reduction in expenditure which will result from abolishing juries. That will show what the savings are. It would not then be too difficult, assuming that the 75 cases that we would have by way of increase in any one year were much the same as those in the ordinary run of inquiries—say, last year—to estimate the gain or loss involved. This has been done in the sense that the figures have been looked at and the broad probabilities considered. The view has been taken that the one is likely to balance the other.
Consideration should be given to the fact that those parts of the Bill which are non-controversial and have been welcomed on both sides of the House are likely to increase the efficiency and effectiveness of fatal accident inquiries, so that an increase of 75 cases in any one year is not likely to require the same increase in labour and trouble by officials and the court. The procedure will be more expeditious and easier to carry out.
One or two hon. Members have suggested that ordinary motor accidents or heart attacks would lead to mandatory inquiries. That is not true. A motor accident would lead to a mandatory inquiry only when it involved someone at work, and death from natural causes would not normally be regarded as an accident.
My hon. Friend the Member for Aberdeen, North (Mr. Hughes) stressed the importance of considering the schedule along with the provisions of some of the 1159 clauses, particularly Clause 9. The Secretary of State for Energy has power, under the Mineral Workings (Offshore Installations) Act 1971, to order inquiries into deaths occurring at offshore installations. There is thus an overlap between inquiries under that Act and inquiries under the Bill, but the Department of Energy has not yet used the powers under the 1971 Act. It intends to use them only in respect of major disasters, I understand, and would normally leave an inquiry into a single death to the procedure under the Bill.
Obviously, there will be close co-operation between the procurators fiscal and the Department of Energy, the inspectors in particular, in investigating any death which may be the subject of an inquiry. But it is obvious that, when the Department of Energy decides to hold an inquiry under the 1971 Act, that will exclude an inquiry under the Bill unless the Lord Advocate otherwise decides. That is the way in which Clause 9 and that part of the schedule can be reconciled.
As for Clause 7(1)(b), it provides that the Lord Advocate… may by rules, provide in relation to inquiries … for the representation, on such conditions as may be specified in the rules, of any person who is entitled by virtue of this Act to appear at the inquiry".The object, therefore, is that rules may be given to achieve that representation, and the power is general. I have little doubt that if it were necessary, in order to effect some particular result, to aid representation in needy cases, that could be dealt with by suitable rules under the clause.
I have not had time to deal with all the detailed points, but I am glad that a general welcome has been given to the Bill. I hope that in Committee the short, sharp issue which has arisen in the debate between the two sides will be the subject of a profitable and constructive debate.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committtee pursuant to Standing Order No. 40 (Committal of Bills).
That notwithstanding anything in paragraph (2) of Standing Order No. 60 (Constitution of standing committees) and Standing Order No. 69 (Scottish Standing Committees) the Bill be considered by a Scottish Standing Committee.—[The Lord Advocate.]