 Welcome everyone to the 16 meeting of the justice committee in 2015. I want to ask everyone to switch off mobile phones and other electronic devices as they interfere with broadcasting, even when switched to silent. No apologies have been received. Patricia Ferguson. I welcome her to the committee. Later on, John Lamont will be attending as Margaret Mitchell's substitute for consideration of witnesses for the Apology Scotland bill when we will have our revenge at last on Margaret Mitchell. Item 1, decision on taking business in private. I'm inviting you to agree to consider items 4. That's a call for written evidence on the Queen to Justice Bill and five witnesses for the Apologies Bill in private. Are you agreed? Item 2, petition PE1567. The Public Petitions Committee last week referred petition PE1567 to this committee for consideration in the context of our scrutiny of the inquiries into fatal accidents in sudden deaths, etc. Scotland Bill. PE1567 by Donald O'Halloran is calling on the Scottish Parliament to urge the Scottish Government to change the law and procedures in regards to investigating unassurtying deaths, suicide and fatal accidents in Scotland. Are you content to consider this position as part of our scrutiny of the bill and keep the petition open? Thank you very much. Item 2, this is our third evidence session on the inquiries into fatal accidents in sudden deaths Scotland Bill at the stage. We'll hear from free panels of witnesses today and I'll just ascend briefly to allow the first panel to take their places. Thank you. Before I welcome the panel, can I ask Roddy Campbell to declare an interest? Thank you, convener. Can I refer to my interest as a member of the Faculty of Advocates? Thank you very much. I welcome to meeting James Wolff, QC Dean of the Faculty of Advocates and Tom Marshall, president of the Society of Solicitor Advocates. I thank you both for your written submissions and I'll go straight to questions from the members, please. Margaret, Elaine, Gil and Jane. Thank you very much. Good morning, gentlemen. I wonder if we could look at the issue of delays. You'll be aware that Lord Cullen recommended an early hearing to tackle this to be held within three months, just really, I believe, to set out where the Crown Procurator Fiscal were and how imminent it would be for a fatal accident inquiry to be heard. Do you have any views on the early hearing? Mr Wolff. Yes, thank you very much. Is it on? Thank you. You don't need to press, James. Come on. Thank you very much. First of all, I will say that we very much welcome this bill, which modernises the system for inquiries into fatal accidents and sudden deaths. It is perhaps worth, by way of a preliminary, observing that FAIs vary enormously in their nature and complexity. They range from, at one end, mandatory inquiries into, let's say, a death in custody, where in fact there is no real complexity to the matter and where the inquiry will convene, deal with the evidence very shortly and the sheriff will then be able to make a determination on an entirely uncontroversial basis. At one end, where the matter would maybe dealt with within part of a day, two at the other end, extremely complex inquiries such as two that I've conducted, one the Rose Park inquiry, which I conducted for the Crown, in which I was led to believe was the longest FAI that had been held. I hope it wasn't causing effect, but a very long, complex and difficult inquiry for a variety of reasons. And also the other one in my own experience, the Declanhania inquiry, which followed on from a prosecution. The fact that there are such, there's such a range and diversity of circumstances and a range of complexity in terms of the subject matter and nature of an inquiry, I think makes it very difficult to be prescriptive about timescales for starting an inquiry. One then throws into that the need where there is a criminal prosecution in prospect or in consideration to allow the criminal process to be dealt with by way of priority. So, while we all favour expedition and inquiries being overly prescriptive, I would suggest that it's not going to be necessary or helpful. I don't think that there is prescriptive. The idea of an early hearing is not to say that the fatal accident inquiry should be held within a certain timescale. I think that's maybe another recommendation elsewhere. It's merely to say within three months that this is the state of play, is to inform the relatives, it's to, if you like, concentrate the minds of the Crown and Procurator Fiscal Service to say, we're looking at this investigating and we're wondering where you are. So, it's making sure that it doesn't kind of disappear or get put in the back bench or there's no unnecessarily delays. As I understand it, it doesn't have to be a very formal occasion. It can be in chambers, but it keeps the relatives involved. Are you in favour of an early hearing in these terms? Well, I can see that there could be merit in, as it were, a process in which the Crown requires to keep people informed. I suppose the question in my mind is whether the Crown is not doing that anyway. One would be concerned if the Crown wasn't keeping those most intimately concerned apprised of where they were, and if there's going to be a significant delay in the start of an inquiry, why that's the case? I'd like to come in on that, if I may, Madam Chairman. I agree, in principle, with the idea of an early hearing. I read Lord Cullin's evidence to the committee with great interest. It seems to me that having an early hearing takes the matter entirely, or it doesn't leave the matter entirely within the hands of the Crown Office and Procurator Fiscal Service. It brings the court into play at an early stage, and therefore it gives the court an element of control of the pace at which matters happen in future, and that must be an important thing. Parliament has recently legislated on court reform, and one of the principles that lay behind Lord Gill's recommendations was that part that litigants should not be allowed to litigate at their own pace. It seems to me that that principle could equally apply to fatal accident inquiries, giving the court the power at the start to keep an eye on things and make sure that matters are moving forward is extremely important. If I could perhaps add to that another suggestion from Lord Cullin was that the Crown and Procurator Fiscal Service should be properly resourced and, in fact, almost a fatal accident inquiry unit created, but I believe in the evidence, he said that that was almost a case just now. It was in the deaths unit, but the key point being that it should be properly resourced to make sure that that wasn't a factor in any unnecessary delays. Well, if I could come back on that one too, it seems to me that there is almost a conflict of interest for the Procurator Fiscal, because the public interest in having a prosecution is not the same as the public interest in having an inquiry, which is there to learn lessons for the future. Those two things are entirely distinct, and therefore, if the Crown is to remain in charge of both aspects, separating the responsibility within the Crown Office and Procurator Fiscal Service would, in my view, be a good thing. That's helpful. We haven't heard that aspect before, which is interesting. Do you wish to comment that, Mr Wolff? Well, it's plainly essential that the COPFS is appropriately resourced to be able to handle its responsibilities. Leading on from what you've just said, Mr Marshall, there has been an issue about legal aid and whether the reasonableness test should still apply. It's been ruled out with the bill, it seems, primarily on financial grounds, but the same point was made about the Crown Procurator Fiscal's representation. Well, in my opinion, it is important that families are represented. In some cases, obviously, in some workplace accidents, there may be support from a trade union, but in other circumstances that financial backing may not be available. In my own experience, in particular with the helicopter inquiry last year, the families wanted to bring forward a number of different issues that didn't seem to be on the agenda from the Procurator Fiscal. Without the support of the trade union movement, those issues might not have been there at all. It is very important, and again, referring back to what Lord Cullin said to the committee a fortnight ago, it seems to me that he's hit exactly the right note. I was just going to let somebody else in Margaret, to make sure that— Elaine, Rod, you may have a supplementary. On this point, that's just a different point. A different point, so I'll just put you on my list, Elaine. Thank you, convener. The bill puts many of Lord Cullin's recommendations into practice, but not all of them, so I particularly wanted to ask about his recommendation that people who die when they are in the care of the state, if you like, children in care, or those that are detained under mental health legislation, and what your views were on whether there should be mandatory FAIs in those circumstances and whether the bill actually does meet our human rights obligations? We've expressed the view that the scope of the mandatory inquiry requirement should be expanded to cover the category of children who are not in secure accommodation but are in residential establishments under the Children's Scotland Act and the Social Work Scotland Act. I've also read with some interest the submission of the Equality and Human Rights Commission, and it does strike me that this is an issue that the Government perhaps should think again about. There are perhaps two elements to this. One is the requirement on the state where there is a death, and whether one puts a death in custody or a death of someone who is in the care of the state, there is at least the potential for human rights obligations to kick in with a series of procedural requirements, including a requirement of public scrutiny. Perhaps without wanting to commit myself to a stark proposition that the bill doesn't comply with our human rights conventions, it does seem to me that there is a need for the Government to look very carefully at those categories of cases and whether the mandatory inquiry provision is drawn broadly enough. Perhaps lest there be concern that to expand the scope of the mandatory inquiry is to impose pressure on the system of inquiries. I go back to the point that I made earlier, that in an inquiry where the facts are straightforward and uncontroversial, what one is securing by having an inquiry is that there is an element of public scrutiny through the responsibility of the sheriff of what the COPF has done by way of their own inquiries, but it doesn't take up or need to take up large amounts of court time. It would just perhaps establish that it wasn't controversial, but that's important as well. Indeed, and that in itself may be important. I don't think that I have anything to add to that, I agree. My colleague Patricia Ferguson has proposed that, in her own proposal for a member's bill, it is about mandatory FAIs. The extension of mandatory FAIs to death is called Cosmy industrial diseases or exposure to hazardous substances. Have you on that? As someone who practices in the area of industrial disease day and daily, my personal view is that there would be value in having inquiries in certain circumstances. Although, particularly in the case of asbestos, the events that gave rise to the illness and death will have happened many, many years ago, there are still a considerable number of cases coming forward that involve organisations that are still in existence, and public bodies, for example, or former nationalised industries. The working practices that gave rise to the recent development of an asbestos-related disease may still be going on. They may not be affecting the individual who has now developed the disease, but they may affect others who are currently working in the same environment. There may be some value in holding an inquiry from time to time in perhaps slightly unusual circumstances where the mere fact of the inquiry would promote better working practices among those who are dealing with dangerous substances. The matter is not adequately dealt with by the provision for discretionary inquiries. It is implicit in what Mr Marshall said that there may be cases from time to time where an inquiry is justified in the case of a death through industrial disease. I do not, for a moment, dissent from that, but I would suggest that that is dealt with by the opportunity for there to be a discretionary inquiry, which, of course, under the bill is fortified by the requirement of the Lord Advocate on requests to give reasons if he chooses not to have an inquiry in a particular case. I would be concerned about putting all cases of industrial disease into the mandatory inquiry category, partly because of the potential for the death to take place long after the exposure, but also because, if one is dealing with a case where there are multiple exposures and the consequences of that, there may be a series of deaths that will effectively raise the same issue. That may be a good reason for having a discretionary inquiry in those circumstances, but to have to have a mandatory inquiry in each case might be thought to be not necessary. There are also section 8 reasons for decisions not to hold an inquiry in those circumstances. I cannot recall—I do not think that it is in the bill, but obviously someone has got to request that. Should there be provision, perhaps? I do not think that it is in the bill for someone to challenge the reasons why the Crown does not hold an inquiry once those written reasons have been provided. For that, without the need for any provision, a judicial review— That is a cumbersome procedure, is it not? No, it is not. Essentially, that would be the means by which— Should there be something in here that might be more potent and efficacious? To pick up on Tom's point about the current position, the current position is that if the Crown refuses to have an FAI, judicial review can be brought. The requirement to give reasons will enable the justification given by the Crown to be scrutinised by the court in judicial review. The grounds of review are limited. One would have to be able to show that the Crown had gone wrong in its understanding of the law or that there was some other aspect to the decision that made it unreasonable in a technical sense. The cases that have been brought have tended to focus on convention rights and whether the Crown has adequately reflected article 2 in the decision not to hold an FAI. One can scrutinise the circumstances and if the Crown has decided not to hold an FAI where article 2 requires them to do so, the court can intervene. It is ultimately a matter of policy whether one wants to have a more intrusive scrutiny of the reasoning given by the Crown. The parameters of judicial review depend on showing that the Crown is acted unlawfully or in the technical sense unreasonably. The question is whether there ought to be an appeal process where somebody independent reviews the Crown's decision. I do not have a view one way or the other on that. I am inclined to think that it would add a potential layer of complexity, but I do not have a particular view to advance. I wonder whether this could fit in with the early hearing proposal. If the court is seized of matters at an earlier stage and, subsequently, there is a decision taken by the Lord Advocate that the inquiry should not proceed further, the court would already have the matter in front of it and would be in a position to oversee the decision not to hold an inquiry in those circumstances. Do you follow me? I follow you, but I am just thinking that word overseas, where did that take you? Is it going to be in a position to overrule it? That would be the direction. It is worth exploring it anyway rather than to sit with the status quo. That is all I was wondering about. I do not understand the word overseas, but you can do anything. I want to keep with the mandatory FAIs that you were going to ask about. Christian, what is mandatory? Let us keep to the category of what should be mandatory or not mandatory, just for the spell. I would like to refer to evidence that was given on 5 May. It is about people who are subject to mental health attention committing suicide. In the context of an FAI being a means of learning lessons and hoping to prevent or minimise the risk of reoccurrence, do you think that FAIs should be mandatory when people who are subject to mental health attention commit suicide? Well, would the point not be that it should be mandatory for anyone who is in mental health attention to be an inquiry? My own view is that the law should err in favour of having mandatory inquiries with the option to opt out at the discretion of the Lord Advocate rather than having discretionary inquiries that have to be opted into. The mental health situation is one such where, in my opinion, that is the way that the law should go. As I said earlier, having particularly read the evidence of the Equality and Human Rights Commission, I have to say that there is an issue that needs to be looked at again by the Government in precisely the kind of situation that you are describing. This is on, are you on mandatory? Yes, please. The Government in the Policy Memorandum on this issue of mental health dates referred to the graduated scale of investigations on the Royal College of Psychiatrists. I don't know if you have the chance to see that in the Policy Memorandum at paragraphs 116 and 17. I raised that last week with witnesses with any general comments on that, as an alternative. I read that note in the Policy Memorandum and I also read the evidence that was given by the mental health witnesses for that just last week. I think that for the reasons that I have already given, I still favour the view that it is better to have an opt out situation than an opt in. Okay. Which Ms Baxter agrees with, so you're all right there. Do you don't wish to comment that, no? I think that the point perhaps is this, that if the facts are uncontroversial, then the inquiry process will be relatively short and formal, but nevertheless fulfills an important public function in terms of the public exposure of what has happened. It seems that it continues the thread of when in the custody of the state, in prison, or in residential care, or under some kind of the mental welfare legislation. It seems that principle, would you say that should apply wherever it's the care of the state, mandatory care of the state under a statute or whatever, or order of the court, that there should be at least an opt out of an FAI rather than an opt in as a general principle. Yes, I think that's right. That's where we're going. Okay, thank you. Christian, you've been on the... Gil, sorry, I beg your part. My question is in relation to industrial diseases, and I wonder if you had any idea, if it was compulsory to have an FAI on industrial disease, how many would that be, in contrary to the opposite view, if it was discretionary, how many exactly to be, and what is the kind of cost that we're talking about here. My main reason is that, particularly with its bestness, that one of the campaigns that's forever running is the compensation that's available to those sufferers and victims of it. If we went down the line of having an automatic FAI, would that impact on them, or is it separate from it? Well, perhaps I could answer that. First of all, the inquiry procedure doesn't have anything to do with compensation other than it may allow evidence to be brought out, which would be useful for other purposes such as a claim for compensation or indeed the prosecution of someone. As far as numbers are concerned, the number of mesotheliomedes in Scotland is more than 200 a year now. There are also lung cancer cases which may or may not be related to asbestos exposure, so there are potentially many hundreds of cases. However, even if there was a mandatory requirement to hold an inquiry, there is still the option to opt out. Now, it may be that for the reasons that have already been explored this morning and indeed, I think, in previous sessions that it's unrealistic to have a mandatory inquiry in every case of industrial disease and that the better course for those kinds of cases would actually be to select the opt-in approach and select those cases where there is genuinely some new issue to be explored, which it would be worth exploring for wider reasons of health and safety that would ring in industry today and not just to establish the facts of what happened in the past. I certainly was aware that it wouldn't lead to any compensation, but I'm thinking about the system itself. If more inquiries were held on an automatic basis when there may not be a need since we already know what the cause is and we've probably got it in the medical record that it would actually add cost at that end in the system, its finite amounts of money and pressure might come on down the line. Some believe that the area where the cost should be born is looking for compensation. We know what caused death, we know that people are carrying it, but it's the compensation end that I think is where the pinch point is in some people's mind. I know that the Government has been considering or members have certainly been looking at recovering the cost of healthcare for industrial disease sufferers, potentially a controversial area in itself. I'm not sure that I can really add a great deal more. The no doubt is a cost in holding an inquiry. The question really must be whether that expenditure is worthwhile in looking forward as much as looking back, because in my view that is what an inquiry really is about. It's looking forward to try and prevent the same circumstances happening again so far as possible, allowing people to learn lessons and adopt different practises. So, if it could be seen that an inquiry into events, maybe long in the past, would still have lessons for today and the future, then that would be money well spent in my view. Thanks for that. Christian. Thanks very much. Just a couple of points first of all on death abroad. I see that there is an invitation of course on section six. The person's body has been brought to Scotland. Is there exceptional circumstances that could occur for death happening abroad? It's not possible for reason or another not to have the body recovered and sent back to Scotland. Do you think the bill should maybe reflect on this? I have to confess it's not an issue that I've thought about and I don't have an immediate view to express. I'm not sure that I've got anything very useful to add on this subject either. I ask that you take the vote and write to us later. I mean, I think the committees of the view we wonder why you need to bring back a body, bring them the circumstances that it's just impossible, but you might still have an FAI. So rather than ask you to chew over just now, we'll ask you to write to us once you've reflected in that one. Yes. It would be great if you could. And the other point will be what you wrote in your submission from the Faculty of Advocates regarding the location of such an inquiry taking place. I see that you express the view that it should maybe be in the face of the bill that it would take place locally. But we see in the explanatory notes on section 12.43 that is indeed expected by the majority of this inquiry will be held in the same Shrifdon as a place of death. I don't really understand why kind of amendment would you like to see in the face of it. Is there really a need for this amendment? Is it more on the spirit? Yes. I think the particular point that's been raised is that one of the reasons why it's a good idea for inquiries to be held locally is the accessibility of the inquiry to those who are most intimately affected, particularly the families or the family of the deceased, but also witnesses who may have to travel to give evidence to the inquiry. There are of course circumstances in which the death occurs at a location which is not where the deceased lived, not where the family is, so the first of those is not always a compelling factor. We recognise that it is a good thing to put flexibility into the system to allow inquiries to be held at an appropriate place, which may not always be the local Shrifdon. Our particular concern is that the decision-making process should take into account the interests and views of particularly the family and it may be that that could be built in by way of an amendment. I notice for example that at section 12, where the sheriff makes an order transferring the proceedings to a sheriff of another Shrifdon, he has to give participants in the inquiry an opportunity to make representations. The family will not always be participants in the inquiry and one could add in a requirement that the family be given the opportunity to make representations. Equally, where the Lord Advocate under section 12.2 is choosing the sheriff to make the proceedings to be held, there could be a requirement on him to take into account the wishes and interests of the family. I am not suggesting that those can always be determinative, because there may be a range of factors, but at least an obligation to take those interests into account could be added to the face of the bill. That answers the question regarding the side of the families. The sheriff principle should have a greater role in that location. Do you think that the sheriff should as well kind of defend their own principle of the area that she kind of defend, but the location should be held locally? Yes. Well, as I read the provisions in section 12, the Lord Advocate chooses the sheriff, but the sheriff may also make an order transferring proceedings. Sorry, I misread it. I said sheriff principle in error. I see it's the sheriff. That's my mistake. Maybe the sheriff principle will be seen as being excluded from the process. One way of dealing with that would simply be to put in the interpretation section that sheriff includes sheriff principle. In section 38. In practical terms, the sheriff principle would be involved, because he is managing the business within the sheriff. In other words, it may not need to add it up, but I take your point that some section could be added on, like they are in section 12 and in section 6. Thank you very much. If we were to look at this early hearing raised by Margaret Mitchell, that might be a very issue that could be apart from putting the face of the bill that families or relatives be consulted, but that would be a matter again, because it might be appropriate that it's held in a different sheriffdom, but families would know why. Thank you. I now have Rodd Foller by Alison. Thank you, convener. Lord Cullen, when he gave evidence on the 5th of May, indicated that he thought the purpose of fatal accident inquiries for the purpose of inquisition, not for the purposes of establishing rights, duties and obligations. In that context, in terms of the status of the sheriff's recommendations, would you have concerns about recommendations being binding? What's your view on how we approach sheriff's recommendations? I think our view is that the sheriff's recommendations should not be binding. We take that view for a number of reasons. The first is that, ultimately, let's say that it's a recommendation to change a particular system or to change a particular policy approach by a public authority. Ultimately, the responsibility for making policy, if it's a public authority, of having an appropriate system of work if it's a private employer, falls on the public authority or the employer. While one would expect any responsible public authority or private body to take very seriously a recommendation from a sheriff following an FAI, there may be considerations that have not been quite properly brought within the ambit of the particular circumstances of the particular death, but which are properly taken into account in deciding what is the right thing to do. For that reason of principle, it would be wrong to make the recommendations binding. It would also have a material impact on the nature of the inquiry process. If the recommendations are to be binding, the stakes are all the higher for those who might be affected by recommendations, who might not indeed be participants, the inquiry might be other bodies who are not immediately involved. That could lead to the inquiry process becoming a more difficult, protracted and adversarial one, because if a recommendation is going to be binding, then it really matters to those who are going to be affected by that recommendation, that they deal with all the issues within the confines of the inquiry. It's a conundrum, a very difficult one to answer. On the one hand, you have what is a public judicial inquiry. Witnesses may be compelled to attend, they give evidence under oath, submissions are made on behalf of interested parties and the sheriff makes a detailed and reason determination. At the end of that, should it just disappear in a puff of smoke? That is clearly a major concern. On the other hand, I have some sympathy with what James has said, that it is difficult to see that if you make recommendations binding, that will in fact alter the entire nature of the inquiry process. One of the values of the inquiry process is the fact that it ought to be an open inquiry where people are not taking sides or should not be taking sides. The object is to get the facts out into the open and get as much information there so that lessons can be learned, but how then do you ensure that the lessons which have been learned are acted upon? That really brings me on to my next question. If we accept that for the moment, how do we improve the response to such recommendations to ensure that proper regard is had to them? Is the bill got it right? I agree that people to whom recommendations are directed should respond and that those responses should be publicised. That is the very least that should happen so that it is put on record what the response is. People will then be able to see whether it is likely that the recommendations are acted upon. That may have an impact. If events occur in future where recommendations have been made, responses have been of one sort or another and matters repeat, that may have an impact for the victims of a subsequent event, but in terms of formally binding people to do certain things, that is where the difficulty lies. I will add some comments. The other way in which making the recommendations binding would affect the nature of the process is that I suspect that sheriffs would become much more cautious about the recommendations that they make, because what may seem sensible in the light of the tragic circumstances of an individual case may, for very proper reasons, when looked at across in a broader context, may be something that is not appropriate to implement. For that reason, it seems to me that the balance has been struck appropriately in the bill, because those to whom recommendations have been directed are, as I understand it, to be expected to respond to the recommendation. One would expect that, if a decision is made not to implement a recommendation, they will no doubt wish to explain why. That requirement in and of itself to consider a response ought to have an impact on those to whom recommendations are directed. There is a question perhaps about whether the procedure for publication through the Scottish Courts and Tribunals services is exactly the right way to go about it, but the broad thrust of what is of the policy reflected in the bill seems to me to get that balance right. Is there an alternative to the use of the Scottish Courts and Tribunals services? I suspect that that may be the problem. On one view, perhaps it could be done through a separate Scottish Government, but I do not have a particular answer to the question, but I recognise that there is an issue that has been raised about that body being the body that takes responsibility for the publication of those matters. It does have the advantage that, if people are looking for information about fatal accident inquiries, they will probably go to the Scottish Courts website. If they had to go somewhere else to find out information about recommendations that have been made and responses that have been given, the prospect is that they are not going to find it, or at least the Scottish Courts website will have to put up a link, so work will have to be done somewhere by the Scottish Courts service. Accepting what you say about it would completely or significantly change the nature of an FAI if you make recommendations enforceable. It does, however, seem unsatisfactory that they are made. Somebody has to reply in writing or to say to the tribunal service why they are not complying in full, and that is it. Is there any way that there could be something within the bill whereby a recommendation given, and we go through the process here, but the tribunal service is not satisfied with the response from the parties that are set about the complaint. They can make something enforceable or do further process, because it seems simply to publicise it and say that there is a recommendation. I understand that there could be further criminal or civil proceedings or whatever, and there would be a kind of pressure to do it, but, nevertheless, it seems after an FAI, and I understand that not in all cases could you make a recommendation enforceable for various reasons that we have had previously. There is not some way that one can ensure that there is more push to ensure that there is compliance, even if it is only in partlets with all the whole, within section 27. Where the tribunal service can look, we are not happy about this. I think that the problem that one would then have is the one that involves, well, the question is who in the tribunal service is it in visage that one puts it back before a sheriff who has some monitoring role over the way in which a recommendation is implemented or not implemented. If it is a sheriff who has that role, what sanction is one ultimately going to be applying other than the sanction of public opinion or the pressure that comes from being forced at least to confront the recommendation and make a response to it? I think that one shouldn't lose sight of the fact that what an inquiry, a judicial inquiry is very good at, is making determinations about what has happened, what has caused the death, what failings have there been in systems of work and the like. The question of what needs to be done in order to put things right is a much broader question. It's not a simple question of applying, working out what the facts are and applying the law to the facts. It's an exercise of deciding what a policy response should be if we're talking about a public authority or how a private enterprise ought to change its systems. That's a, particularly when it's talking about public authorities, almost a quasi-legislative role. Sheriffs are, in our current system, free to and do recommendations about changes that they think emerge from the facts of the case. At the end of the day, it has to be for the body concerned to consider the thing at large and to decide for itself what its responsibilities are. One option here would be to make the response back to the sheriff rather than to the Scottish Courts and Tribunals Service and that the inquiry proceedings themselves would not close until the response had been received. That's helpful. I just think that at the moment people must wonder when a recommendation is made that that's it. I understand the reasons that you've given, but I think that for families and so on, it and the public don't understand why it can't be tougher. Patricia. Thank you, convener. It's on that very point. Good morning, gentlemen. Clearly, at the moment, sheriffs can make recommendations. There have been occasions when sheriffs have made recommendations that, if they had been followed, would have prevented future incidents. By incidents, we're talking here necessarily about the loss of life. In a circumstance where a sheriff chooses to make a recommendation and feels strongly enough that that recommendation would, in all probability, prevent future fatalities or casualties, should there not be a mechanism whereby that sheriff can say so and have a sanction that they can apply if that recommendation is not carried out? I was thinking, as you were talking there, that of the case that was discussed last week by Louise Taggart of her brother. One can see that where some step could be taken to protect electricians in the work that they were doing had been publicised, that further lives would not have been lost. I don't know enough about the details, but I suspect that all of the electricians who subsequently lost their lives after Louise Taggart's brother were not all employed by the same people. Therefore, the recommendation had there been one in a fatal accident inquiry at an earlier stage. It would have to have been acted upon not only by Mr Adamson's employers but also by the employers of the other men who subsequently lost their lives. Had those men still lost their lives, notwithstanding a recommendation, the sanction would surely be for the crown to prosecute those who had failed to take the appropriate measures to protect those other men, rather than for there to be some follow-up from the fatal accident inquiry that had been held into the death of Mr Adamson. One would be introducing a new breed of sanction, almost, the limits of which would be ill-defined. As I indicated, it is a conundrum, but that imperfect situation might be the best that can be achieved. I understand that the reason for an FAI may vary or the circumstances of the case that causes the FAI may vary, but that is one example that I refer you to in the case of the Newton and Belgrove train crashes, both of which were caused by drivers passing signals that told them not to pass. At the first of those fatal accident inquiries, the sheriff clearly said that if there was a system of double blocking—in other words, two signals that had to be passed before such a danger would be encountered—that would be a good thing to happen as a result of that fatal accident inquiry. That recommendation was ignored. Four years later, the same thing happened again. It seems to me that there is not much point in having a fatal accident inquiry. If all that you do is find out what happened and do not learn the lessons from it. I would suggest that a sheriff would be able to make a recommendation when he or she feels that it is appropriate. That is something that needs to be considered at this stage. I agree entirely—as I have indicated—that finding the correct solution, one that works in law, is the difficulty. I agree entirely that one of the purposes of the inquiry is to learn lessons. If there is a failure by somebody to whom a recommendation is directed to follow that recommendation and further lives are lost, then, as Tom said earlier, that may be relevant in the context of subsequent decisions that might be made to prosecute or, indeed, I suppose, in questions of civil liability. It may not be entirely without sanction. I accept in law that that is the case, but, in practical terms, should we not be trying to prevent further loss of life rather than prosecuting people when it happens? I think that, even in law, it is not possible that a sheriff could make a recommendation not just in relation to the employer or whatever, but at large, as in the circumstances that are described. If it is a practice that is prevalent throughout that recommendation, because of its very nature, it should be enforceable. I know that you made a very important point. That would be in law. It would not be just because it is morally correct. In a way that perhaps points up the conundrum, which we probably all grapple with in relation to that. If the sheriff makes a recommendation that is going to have a binding effect on people at large or a group of people who are not represented before the inquiry, then one has a real problem about how the interests of those people are taken into account or any views they might wish to express are taken into account before the recommendation is made. One does see sometimes recommendations that are along the lines of consideration should be given to the issuing of guidance or the change of a policy or whatever it might be. Sheriffs may well be framing their recommendation in that way, deliberately recognising and correctly recognising that it may be for, let's say, a trade body to consider whether they should be issuing guidance to their members. It may be for government to take forward in certain ways. It is wrong for the sheriff to be unduly prescriptive about the outcome of that, because there are other parties whose interests need to be taken into account. I am not convinced, although I praised you once before for being very convincing versus a Lord Advocate. Surely, if it were the case, as Ms Ferguson says, there was a wider application and the sheriff could see this coming, then it would be possible would it not in an FAI for the sheriff to continue the proceedings to allow representations as he pondered or she pondered the recommendation to make representations before issuing an enforceable recommendation. If you are telling me that is the problem, they were not partied to the FAI, but you have very special cases where you can perfectly well can see that this requires general application. Would it not be possible to do that so that you could have an enforceable recommendation but give other parties the opportunity to make representations before doing it or is that just a mess? The answer ought to be really some method of translating the recommendation into a new law. That takes time. That takes time, which is not on the— No, but that is much tidier in terms of— It is tidier, but we are in the same position as Ms Ferguson explained—people die. You do not want to get time for let people die. I will leave the faculty to think of a solution to that. We would like a solution here—greater brains than ours—and that is allicent. To pursue a bit further, Lord Cullen's original proposal envisaged the Scottish Government being much more involved in overseeing the implementation of responses. It seems to me that if responses are not implemented, it is likely to be because there are a lot of knock-on effects that have not yet been worked through and it is quite complex. That policy-making should be done either at local government level by elected members or in this Parliament. Therefore, is there not a role that we could work out for the Scottish Government to conduct an annual review of those recommendations that were not taken up to see whether there are patterns or anything? Should we be imposing something on the Government to do at the end of this process? You could imagine what you were suggesting would go on forever if people started to feedback in that they would be affected by a recommendation but they had not been considered. Therefore, it would not be a tidy system at all. I think that the general thrust of the approach that we agree with is that the right balance is a process that involves reporting. If that reporting process can be made more robust and effective through a requirement on government or others to collate information and make it available, that would go with the grain of the kind of approach that we are advocating. I have not thought specifically about a solution, but I can see that if the basic principle is that reporting is the right way to go, mechanisms that make the reporting process transparent and robust would be entirely consistent with that. I would like to talk briefly about the participants. It is covered in section 10 of the legislation where there is a listing. Section D is very specific about where the death is within section 2-3 in that relaxed acting in the course of the individual's employment or occupation. Section 2 lists the employer and also lists an inspector under health and safety work act. Should it also list a trade union or staff association representative? Yes. That is my kind of answer. You waited a long time. I follow on, if I may please, to the panel. That relates to information that we have had that suggests that section 10 is open to abuse if not properly regulated. Indeed, the suggestion is that a subsection B should be drafted as to allow the sheriff to limit in advance the issues in an FAI upon which any participant should be entitled to reduce evidence and the issues that such a participant should be addressed in making submissions. Indeed, there is a further suggestion that those should be provided written notice of the topics of one that they wish to cross-examine. Do you have a view on that at all, please? The general thrust of civil justice reform is in the direction of sheriffs and judges taking a much more active role in managing cases before them. I do not myself have any difficulty with the notion that the sheriff manages an inquiry by asking the participants to identify the issues that they particularly want to raise and the sheriff being in a position to, in effect, determine the issues that ought to be inquired into. I think that there is a balance to be struck about how far that goes and how far, in an individual case, the sheriff will consider it right to confine parties in the way that they wish to approach their involvement as participants, but the principle of shreval, as it were, management of the process seems to me to be a sound one. The answer, in my view, is in the preliminary hearing, as opposed to the early hearings that we have discussed beforehand. If the preliminary hearing system works well, then everybody should know by the time the inquiry starts what issues are to be explored. Everyone will be able to give you war stories and horror stories of inquiries that have run out of control, such as a runaway train, because topics emerge as the inquiry goes along, new parties appear, other people want to ask questions, and the whole thing grows arms and legs to mix many metaphors. However, if the scope of the inquiry is mapped out before it begins, that is the stage at which people can make representations about the issues they want to explore. Those matters can then be the subject of agreement, and you know in advance what the inquiry is going to cover. Who should determine the scope of the inquiry? The sheriff, after submissions from the interested participants. What would be the avenue of redress for someone who was not happy with the terms of reference? Currently, they would have to judicially review the decision of the sheriff. Rodd, you follow by Christian. It is a question for Mr Marshall on the use of summary sheriffs. The bill provides for them to be potentially involved in fatal accident inquiry. Do you have a view on that? I do not, myself, see any particular difficulty with a sheriff of any description hearing and inquiry. The important factor must be whether the person is sufficiently experienced and capable of dealing with a matter of this sort. As the committee is well aware, the qualifications to become a summary sheriff are exactly the same as the qualifications to become a sheriff and, effectively, practically the same as those to become a senator of the College of Justice. It is difficult to imagine that people who apply for and are going to be appointed as summary sheriffs will be anything other than experienced solicitors or advocates. It is also difficult to imagine that the sheriff principal would appoint someone who is not competent, whether they be a summary sheriff or a sheriff, to hear an inquiry. I do not, myself, see any particular difficulty. If it is a question of status simply, then perhaps that is something that people should get over. Right behind you are the sharpening knives. Obviously, I do not know whether summary sheriffs will be admitted to the sheriff's association and whether it is to be a separate summary sheriff's association. One hope that they are more collegiate than that, perhaps. We have expressed a reservation around the question of how an inquiry will be perceived if it is before a summary sheriff with the jurisdiction of a summary sheriff. A little follow-up question is whether you think that sheriffs should retain discretionary part award expenses in FAIs under specific circumstances. Do you think that they should? I see that the insurance companies are exercised about this matter. Retaining a discretion to award expenses, it seems that it has been very rarely exercised in the past. To rule it out of account altogether seems perhaps going too far. I reflect on that and come back in writing. Yes, that concludes my questions. I thank you both very much for your evidence. I will suspend for a couple of minutes to allow a change over to allow the sheriffs to take their seats. Thank you very much. I now turn to panel 2 and welcome the second panel witnesses to the meeting. We have all already previewed their attendance. Sheriff Gordon Little, Vice-President of the Sheriff's Association and Sheriff Nicholas Stewart are also from the Sheriff's Association. I thank you both for your written submissions. I know that you heard a deal of their previous evidence, so I will go straight to questions from members, please. Christian Allison. Thank you, Margaret. Thank you very much for going on. Good morning. One of the points will be the first one that I ask Ali on about the location of the sheriffs. Do you think that we should put it on the face of the bill that the location should be local, if possible? I have seen it on the extraordinary loads from the Government that it is stressed that it is likely that most of them will remain local and will be held locally, but it is not on the face of the bill. Do you think that there should be an amendment? Sheriff Little, come on automatically. I do think that there should be something on the face of the bill that makes it a presumption that the inquiry will be local. There are in inquiries a number of interested parties, not least of all of the family. I appreciate that the family has a different role to play in attending an inquiry than those who might be involved in having to do something on the back of a finding. Nevertheless, it can be difficult for families to travel long distances if that was something required. The other, perhaps equally important aspect, is that quite often things that happen that lead to an inquiry have a local flavour. There is a local interest. The people in that community are interested in what happens and what the outcome is going to be. You would exclude those people from a very public inquiry if you were to place it somewhere else. Something inquiry could be very complicated and could be very much focused on a particular subject. You may need to have a share if you should have these expertise. But it seems that there is a complication regarding the process, the mechanism to see a way it should be held. Is there a conflict between chief principles and the way that we will see how to start? Is there a way that we are consulted about the location? I am not aware of that being an issue. I think that what may become a bit of concern in relation to this is the fact that the Lord Advocate is effectively given the power to locate in the first instance the fatal accident inquiry. That may give rise to concerns that the local aspect is perhaps overlooked in favour of a more centralised view. Clearly, that would give us some concern. I read on the submission that, however, in practice, this can only be done with the consent of both chief principles involved. Could we end up having the contrary effect that everything will stay local and there will be no reason for it to be by specialist courts or to be done somewhere else? The difficulty is that that is a second stage. The first stage is that the Lord Advocate chooses where it goes. I wonder if that is a safety net to stop an avoidance of local localising the inquiry. I do not know, but that in itself is a fairly, potentially cumbersome procedure, which, again, we are not entirely relaxed about. I agree, and it is difficult in some respects to understand how that would necessarily work, where a sheriff is making a recommendation, as it were, to the sheriff principle, and both sheriff principles to try and alter what the sheriff thinks is appropriate. Do you think that sheriff principles will automatically try to have it held locally? I do not think I can. I would not want to make that assumption, because I cannot see into the mind of a sheriff principle. I was more interested in the mechanism to saying, having a balanced way as much as possible and not having a presumption that it should be either held locally or held outside the local event. It is a difficult balance to strike, but do you think that it should not strike rightly as it is? It is difficult to see why it would be necessary to have a fatal accident inquiry outwith the sheriff. If you have a provision that says that you can have an inquiry outwith the court, and so if you have a rural situation where the court is not big enough, and we all know about the ordinary inquiry that took place many years ago, then, of course, you find a place where the inquiry can take place and you take the court to the building. Thank you very much for its answer. Another question would be, in distribution of a sheriff principle in Murray, we have regarding the clothes of the repatriation of a body from death occurring abroad. It seems that a sheriff principle Murray is saying that it may be a case for having a special change in the bill to allow exceptional circumstances. Have you got any comment on this? I think that we have to say that it does enter into the area of policy, and it is something that we do not think that we should be commenting on. Just to return to a question that my colleague did not ask, I understand that you raised concerns about the role of specialist sheriffs and summony sheriffs in presiding over FAIs. Part of the reason is that, if there is a distinction between a sheriff and a summony sheriff, I know that the previous person giving evidence said that it is exactly the same criteria for appointment, but if that is the case, why bother having sheriffs any more elixir of summony sheriffs to do everything and do not have the separate jurisdiction, but we do have the separate jurisdiction. We have privative jurisdiction under the 2014 act, and of course you could turn the question out and say, why is that? Why do you have a privative jurisdiction? The answer is because it is thought that some things are more complex, which is language used or more serious, to merit a sheriff rather than a summony sheriff. I do not mean to be disparaging, but more routine and perhaps easier things. I think that there might be an expectation, first of all, in relation to families and even individuals who have come along to inquiries, that there is going to be someone with experience and weight dealing with the inquiry. If you want an example of that, then look at what is happening in Glasgow at the moment in which the sheriff principle has decided to hear the inquiry. I have lost track of what I was going to say. I was going to say that, but I will undermine your argument, if you forgive me for saying sheriff. As you are saying, a determination has already been made that the inquiry in Glasgow is such complexity and significance that it is a sheriff principle that it would seem that, given that we have been told and we know that some FAIs are pretty straightforward, but they are mandatory because of their circumstances, why couldn't a summony sheriff do that if it seemed to be that? In the same way, as you have already indicated, it was very complex that a sheriff principle is doing, while very straightforward it could be a summony sheriff. Yes, and it does actually pick up on that. Thank you for putting me back on track for what I was going to say. If something is simple and if something is going to be effectively to a formal finding, then it takes very little time to do that. It is not something that I accept, not something that would require a sheriff principle to do. However, if one is assigned an inquiry to deal with, one does not know how complex or how serious that is going to be pretty well until you come to the preliminary hearing. It is only then that you might be presented with what parties think is straightforward and realise that it is not straightforward at all and that it is going to require further investigation. Of course, we have powers to say that we want to hear evidence relation to one thing or another. The question would then be who is the gatekeeper, but it is a question that might not have much force behind it or much point to it, because if it is a simple matter, then it is not going to take a great deal of shrivol time. It is an inquisitorial system that puts a lot of responsibility on the sheriff, rightly so. It seems, to us, appropriate that the person exercising that responsibility has the experience and the confidence that comes with experience to direct, for example, investigations in a way that has not been anticipated. We all have experience of this happening. It happens not infrequently that sheriffs see something in an apparently straightforward case, which takes legs. It needs the experience to see it. It needs the confidence to direct it. I think that that is appreciated, but it might be that if we went the route of an early hearing that it would be pretty clear that there are no—I understand that the unexpected can happen, but it is one where a summary—let us move on. You are not happy about summary sheriffs, but you are not happy about specialist sheriffs. It would seem to me that specialist sheriffs would be better than ordinary sheriffs, non-summary sheriffs dealing with something. Why are you unhappy about specialist sheriffs, who will have expertise through dealing with this particular area day in and day out? Both are additions to what was anticipated when summary sheriffs and specialisation were mooted. They are new areas in which these beasts are heading. That is a decision that has to be reached, frankly, by you as to whether that is appropriate or not. We have reservations in that it seems as if it may create the feeling in the public mind that there are important fatal accident inquiries and fatal accident inquiries of lesser importance. The decision is made when the Lord Advocate assigns a fatal accident inquire to a particular sheriff and a particular sheriff takes it up. A summary, a part-time sheriff takes it up, that that may not get the attention that it would if a more experienced one gets it. The whole act encourages judicial management. That is a good thing. We are absolutely happy about that. That demands skills and experience. Of course, anyone given the position will have training, and that is a good thing, but experience is harder to acquire. I come back to this concern that training goes hand-in-hand with confidence. Confidence to say to the sheriff principal, let us move this case out that this does not have a link with this sheriff and let us put it somewhere else. Confidence to get, in fact, with the other sheriff principal, all of those things put an enormous responsibility on the sheriff. We have judges specialising in the court of session. I do not think that people have problems with that. I do not know why there should be problems with specialisation for sheriffs in particular cases that demand that. I think that that is something that I might understand that some cases are very complex and other ones are less complex. It does not mean that it is diminishing the inquiry. I find it difficult with you when you say that you cannot have so many sheriffs because, frankly, they are not in the same league, if I put it into a hotel. You are not wanting them to do it, but, on the other hand, we are not going to have specialised ones because they would be another class that is as if it is just going to be the one. I think that it is a more complex analysis than that. We are looking at the process, the process being one of hopefully having continuity of hearing. That process gets easier if you allocate a local sheriff to deal with it locally. That sheriff is in charge of the preliminary hearing, follows it through, guides it through to the very end. That, as a quote programming issue, raises difficulties if you are importing part-time summary sheriffs, part-time sheriffs. All of that becomes more difficult, so there are these concerns. I will leave it at that. We have to keep in mind the size of our jurisdiction because there are only 140 odd sheriffs in the whole of Scotland and there are some that are spread out all over the place. If you were to select, I think that specialists so-called are selected, within the court that I sit in, it is said that we are a sheriff court. We have enough sheriffs to have a number of specialisations. That means that that sheriff has probably more experience dealing with that particular work than to do it on a rolling basis. If you were to make a number of specialist sheriffs in Scotland, then there would not be only that. They would have to have other duties within their courts. It would probably lead to something that I think is undesirable and that is specialist centres and would take away from the local aspect of inquiries. We have a one-and-a-half sheriff in Llarg. Of course, you do not get a half sheriff because there is enough work for that. I think that it is fair to say that you have dealt with a number of FAIs. I very much doubt that if specialisation were introduced that she would be designated a specialist sheriff, she would not be able to be a specialist sheriff. However, she does deal with FAIs. She deals with them locally. They have a local flavour, they have a local quality and there is a point to that. The other thing that I would say is that, as far as specialisation is concerned, sometimes that does mean that a sheriff, for instance the family sheriffs in Edinburgh, will do a run of specialisation. Very recently, we had a pilot run in Edinburgh where we had domestic abuse sheriffs. That was rolled out. The pilot came to the end, it was rolled out and then we all became domestic abuse sheriffs. We have all got the specialisation badge, but it simply means that we have all had the training for that. I do not know for that assist and I do not understand how it works. No, it is fair enough for you to put it there for your position to be challenged. It is a change challenging sheriffs that we normally challenge down the hill until you went to be quiet. Alison, then Margaret, please. Thank you very much, convener. I know that you were both present when the previous panel was giving evidence partially, but towards the end you would have heard the lengthy exchanges about sheriff's recommendations. Of course, it would be very important to hear your views on whether the proposals on the bill ensure that sheriff's recommendations are taken seriously. Do you think that it goes far enough as the bill is drafted at the moment? May I pick up on that? The nature of what we do as judges leads to us being frunked at a point, and therefore what we have decided or determined no longer becomes part of what we have control of. It would be very difficult if a sheriff had to maintain some sort of control over what happens and to try to case manage that in some way, or to deal with inquiries coming back in. It would be almost impossible to do that. On the other side of that, I fully accept that, if I make a recommendation, then I want it to be implemented and I expect it to be implemented. There is such a variety of recommendations that may come out of an inquiry that is very difficult to be prescriptive in relation to that. A couple of examples, perhaps. If, on the back of an inquiry I am talking through personal experience, there has been medical negligence and that comes out, then that is likely to lead to the appropriate organisation making inquiries about that, and perhaps in the most severe cases, someone being struck up from practice. If we take another example of a health and safety issue when there is an accident at work or something like that, and that becomes disseminated, the decision that I think is important, if the recommendation is disseminated, then any employer or organisation business who knows about that, who is placed on notice about what came out of the inquiry and did not implement it, would be placing themselves at risk and insurers would be unlikely to be happy about that. What I am trying to illustrate is that there are others in the background that are interested in making sure that something is implemented. Of course unions and so on who would take employers to task if it is not implemented, but I do not see a way—I do not think that we have the resources to deal with case management beyond issuing a determination. If you did have the resources, would you think that it was appropriate that you should follow it through? Surely you would want to see your recommendations being implemented? Would you go so far as to see some of them being binding, legally binding? I think that it is for others to do that. I do not think that the particular sheriff would be, in any way, really able to continue that sort of case management. Now, of course, as it has been said before, yourselves could deal with that. It is for the Government to legislate in relation to something if something requires legislation. I do not feel that I should be a lawmaker, and of course we have to look at the difference between an inquiry on the one hand and everything else that I do practically in court, which is adversario. The inquiry is not about saying that I am making a ruling and you must follow it. The inquiry is about saying that I have conducted an inquiry into this, which may include asking other people to come and give evidence until I am satisfied that I understand what went wrong, if something went wrong, and then the pronouncement is that this is what went wrong and perhaps this is what I think on the basis of the evidence that has been presented to me would have prevented this or might prevent it in the future. It is not a ruling against anyone. It is the result of conducting an inquiry, an open inquiry into the facts. I think that the concern is that if it becomes a ruling against someone, we are looking at a very different animal, if you like. We understand the complexities. We are just trying to find out if there is a way around it. Patricia, do you mind when I bring in Patricia? There was an example. Were you in for Patricia's example? Yes, yes, indeed. Well, I think that she makes a fair point there of which she wants to pick up on it. I propose that, and what I am proposing is that, where the sheriff feels that it is appropriate that they can make a recommendation that would be binding and that they have a mechanism to call that back at a point laid down in time to look to see whether that has happened or not, and that the person against whom that finding is made also has a right of appeal. That is an attempt to make it manageable, to make it not something that will drag on forever. I think that the point that I was trying to make earlier that the convener has raised is that if we truly learn the lessons and it is clear that that incident could have been prevented by a certain course of action, it is quite clear that that is the case. There have been some, as I gave the example earlier, where that is the situation, then surely we must find a way to be able to do that, to prevent further loss of life. I accept, as I said earlier, that in legal terms the organisation or the institution leaves itself open to all sorts of challenge and problems with insurance, etc., but surely, as a moral imperative rather than a legal one, we must be trying to prevent future deaths if we know that we can do that. The example that I gave is an example of when it would have been very clear that that was the case. I suspect that the difficulty may be in getting to that certainty, and that is where the whole process may become cumbersome, as was indicated earlier. I know of family members that an inquiry is dealt with concluded. What you are anticipating seems to me to potentially involve changing tack, if you like, at a certain stage in the inquiry and going from the inquisitorial system into a more adversarial system in which one would have to perhaps think of pleadings, perhaps think of bringing in a more involved form of process so that the person against him—and it could be many bodies—could be fairly diverse, the implications of this, involving them potentially in giving answers, in the same way that if you were to take responsibility for it and go down the legislative route, you would have something like that. You would investigate all the potential difficulties. Now, a sheriff may not have that opportunity, so, whilst in hindsight, yes, we can look at decisions and take the view that, if only that had been promulgated, lives could be saved, I am not sure how without that kind of inquiry, how often that certainty can exist. So, it is how we get to that crossing that boundary might be a difficult one. With all due respect, as the convener mentioned earlier, the idea that Parliament then legislates means that you are putting another delay into the system, which is already perhaps looking at an incident that happened four or five, six years ago, when we do not know whether there could have been preventable deaths in that period necessarily. My suggestion would be that sheriffs would have discretion where they thought it was appropriate to be able to make those kinds of recommendations and that those against whom those recommendations are made would have a time frame in which to act or to be brought back, or that they have the right of appeal against that if they feel that the judgment has not understood the complexities on the matters before them. It is an attempt to try and get action moving and to get something in place to make sure that we are preventing as many deaths as we possibly can. I accept that it is not perfect, but I think that we have to be having that debate. We, of course, can see the issue and have personal sympathies with the issue. The problem is that you have changed the nature of the beast entirely by doing that, because anyone coming along, any parties involved in that inquiry, will have in the back of the minds that there might be a finding as opposed to a recommendation coming out of that, and it will turn into an adversarial process, especially having an appeal on the back of that, extending the process. I fully understand that legislation takes time, but we cannot be legislators. You might also be expanding every single fetal accident inquiry. That would be another concern of mine. Rather than having parties directly concerned with a specific death, you might have bodies coming in concerned that, on the back of that, there might be such binding determinations, and it might become just more cumbersome, more difficult for the family, for everyone, from day one. That is a concern. We say that it is not easy. I have got Elaine then, and I have got Christian on this point. On that specific point, we have also discussed the way in which recommendations are reported. I wonder if what you are saying is an argument for the Scottish Government being more involved in the publication of the recommendations so that they are on top of the issues, rather than relegating that to the courtservice when the Scottish Government should be doing that, so that it can learn the lessons from the recommendations that are made. I am not sure that it goes beyond what we should be discussing from the point of view of not entering into the area of policy. That would be an area of policy. But, on a personal note, I would welcome that level of involvement where something can be done. Did you try to get away from policy to understand the mechanism? Do you do any recommendation sometime after an inquiry to the Scottish Parliament, to the Scottish Government, to the UK Government or your recommendation and never to a legal body like the Government of the Oral Parliament? I am not sure that I fully understand the question. Just to rephrase it, would it be possible that, if I could do a recommendation to the Government and to the Parliament, it would be a kind of passing the or inquiry to a novel level if you feel that it needs to be done? No, we do not, because that would politicise what we are doing. We both have been involved in FAI, so we have quite experienced it. The exercise is to identify what has gone wrong and why it has gone wrong. The recommendation is, on the back of finding all that out, to look at the practical solution and, having been reformed by the expert evidence, that would lead to that not happening again. It is for others to pick up on that and take out of that what needs to be done to prevent it happening again. It really depends on what comes out of it. You could not legislate for the variety of things. We would make recommendations to health and safety shortly to you. Yes. That would be a mandatory issue. Oh, to professional bodies of all sorts of recommendations. Yes, of course. Just to clarify, you do not just make a recommendation at large. You point the recommendation to employers and health and safety and health boards or whatever. But not to the Government, I do not think. No, no, no, I would not want to be doing that. We make recommendations to the Government. They sometimes pay attention, sometimes they don't. Margaret. Good morning. I wonder if I could ask you about delays in holding phethlatian inquiries generally, and to comment on whether preliminary hearings will help with delays, making sure that the court is ready to go, and also to comment on something that is not in the Bill. This is the idea of the early hearing to try and ensure that, within three months, there is at least some indication of if we are going to go ahead or if not, what the problem is. A preliminary hearing is, I think, an important matter. Again, from personal experience, the sooner one can get a grasp of what the inquiry is about, then from the point of view of the sheriff, the sooner you can take a view on whether or not it is something that is formal and therefore can be dealt with quickly and everyone gets to find out what is happening, or you can look at it and say, I need this to be brought forward. This is something that has not been envisaged, but it will need to be looked into, and so you may have a further preliminary hearing. As far as time is concerned, I am conscious of the fact that a lot depends on the nature of the death and the nature of the inquiries that the Lord Advocate may make into that and how quickly they do it. We do not really have any control of it. I would like to see it as quickly as possible into the court and preliminary hearings are a great idea. I am not sure what the other option is, so am I picking up correctly that you are considering bringing it before the court is seized with the matter? Yes, I have probably conflated the things that I should not do because they are quite distinct processes. The early hearing being just to see where we are, in other words, concentrate the minds of the Crown and Procurator of the Fiscal Service that, if they have not made progress, the relatives will be informed why, and the sheriff would be asking what is the position here. It is process, I think, really, procedure, not looking at any facts in the case. But this would be once you are up on top of it. Once the application, the notice is before the court or before it, so that is what I am not sure about. Not even then, no. I think that it is the Crown and Procurator of the Fiscal Service that is looking into the facts, the investigation, deciding whether they are going to hold a fatal accident inquiry and when. The difficulty is that currently that is not a matter before the court. If that were to happen—if I am right in this—a judge is effectively being, I do not know, a minute faker. We have no power to do anything in that situation until the application is before the court. What can we do with it? I think that the point was that it would be held within three months. It was not going ahead, but that would very much concentrate the Crown and Procurator of the Fiscal Service to come and explain where they were and what was the cause of the labour, because it was so complex. The suggestion from Sheriff Nicholson was that, if we did not have a clear idea of when it was going to take place, maybe convene again another. It could be very informal, just in the Sheriff's chambers, convene again to say that we will meet again maybe in six weeks or another two months and just see where we are. It did not disappear. It was very much holding the Crown and Procurator Fiscal to account. Do we invite parties to this? It is public. That is a whole aspect of a fatal accident crime that is so important. I see your point about there need to be some kind of new court process in place for it, but it was not in public. It was really, I think, for the family, mostly the family to be kept a prize of the process in chambers so it is in private. I am pleased that what you are seeing is where would this be in the court process, there has been no referral, but presumably what Lord Cullin had in mind is you add another little thing. There will be an early hearing. It will be dealt with in this fashion. Some amendment to this Bill. Really to keep like a belt and braces for the families to know and relatives that what is the process, how is it going on, but nothing of not substantial facts in front of the just process. We are doing this or what point there will be a delay, there will be a delay because of me. Just to let people know, rather than it just being somebody phoning up or whatever happens from the Lord Advocate's Appears Office to tell people, just changing it now. I do praise it. You need to know why you were there. What our powers are. I mean, currently he can mean a vacuum. Tell us what our powers are and we can comment. I wonder if— Last Lord Cullin for an amendment. But perhaps making Crown Office responsible to the family is an easier way of doing that. I hear your differences in that. Just on the same point, Lord Cullin also recommended to keep the Crown and Procurator Fiscal Service on its toes the fact that there should be proper resourcing of the Crown and Procurator Fiscal Service, maybe even a unit within the Crown and Procurator Fiscal, which I think he subsequently decided was there under the death unit in order to make sure that this was a bit of a priority and it was not allowed to slip. We cannot comment on that. That is because it is a policy matter in relation to resourcing. We certainly would like to see fatal accident inquiries brought to court and dealt with as quickly as possible. Can I ask if you think that you should retain the power to award expenses and certain circumstances have discretion? The answer to that is yes, I think that we should. It is rarely used, and that has been said earlier today, but to lose it would be unfortunate. I welcome our third and final panel witnesses to the meeting. Lord Gil, Lord President, Roddie Flynn, legal secretary to the Lord President and Eric McQueen, chief executive of the Scottish Courts and Tribunals Service. I thank you all for your written submissions. I know that you were in for a substantial part of the previous evidence. I thank you and I will go straight to questions from members. I am looking around for volunteers, conscripts or take anything that is going. One of the concerns about the system at the moment is the number of delays or the length of delays that there are. Do you believe that the CTS bears any responsibility for delays in the FEI process at the moment? I do not think so. There are two forms of delay, and I think that we have got to distinguish one from the other. There can be a delay between the occurrence of a death and the application by the Crown for a fatal accident inquiry. That is one kind of delay. Then there is the procedural question of delay. Once the inquiry has been applied for, is there a delay between then and having the inquiry conducted and concluded? Let us take the first one first. There are many reasons why there should be a delay between a death and the FEI. For example, it may take a very long time to ascertain the cause of death. If you have, for example, the air accident investigation board, you take something like the Cluth of Disaster, for example, it has taken quite a long time to find out exactly what happened there. I would not describe that as delay. On the other hand, if there is an unreasonable length of time between the application for an inquiry and the actual holding of the inquiry, then there is a legitimate cause for concern. My impression is that, in current practice, once the Crown applies for an FEI, the matter is dealt with expeditiously. I am not aware of any particular deficiency in our procedures in that regard. Mr McQueen has probably got more practical detail than that. I can certainly give some more information if that would be helpful to the committee. As the Lord President has said, we do not see a picture of delays within the court system as being one that is particularly prevalent at the moment, but nevertheless we do realise, like any part of the justice system, that there is a duty on us to try to make sure that there is continuous improvement in the process. One case that has come to court, the important point to realise, is that there is a period before it is appropriate for an FEI to go ahead, because, quite clearly, parties need time to prepare for that particular hearing. Somewhere around about 68 weeks seems to be the minimum period in terms of getting ready and prepared for the start of an FEI. We have around 50 FEIs a year on average, and it can vary, obviously, depending on particular accidents on an annual basis, but 50 seems to be the average number that is set. About 45 per cent of those are one-day hearings, and they are all largely held within three to four months of the fatal accident application coming forward. Further 45 per cent are hearings that last between two and ten days, and most of those hearings again take place within three to four months, with some possibly taking seven months if they are particularly longer or more evidence-enquired. Only 10 per cent of cases are the long duration ones, which are about 11 days of more. Again, most of those will be held within a four to five month period, with some of the longer ones possibly taking nine to ten months. We are certainly not aware of this being a problem for parties involved within FEIs. We are certainly not aware of it being raised as a particular issue within any of the evidence sessions. As reported in the media last night, a good example was the tragic accident in Glasgow prior to Christmas, when the fatal accident inquiry was set up and due to start in July. However, because of issues with the partners in terms of taking evidence, there is now some doubt in terms of whether that will proceed in its scheduled day. That is quite the norm for a lot of the complicated FEIs. There is no point just rushing things to a date, but it is about making sure that parties are ready and prepared to go and that evidence has been secured to make sure that we can have an FEI start when completing within the planned timescales. On your written submission, you have suggested some specific case management powers that would help to move things along a bit in relation to written evidence being tabled and things. Do you want to talk a little bit more in detail about that? I would urge two points upon the committee, if I may. One is that at the very forefront of our consideration is section 1, subsection 3 and subsection 4. It is quite easy, sometimes, to lose sight of what an FEI is all about. It is made very clear in section 3 that the purpose of an inquiry is twofold. One is to establish the circumstances of the death, which is a straight factual question, and two, to consider what steps, if any, might be taken to prevent other deaths in similar circumstances. There may well be cases where that second question does not even arise. However, if you look at it in the context of that section and then look at the next section, which says that it is not the purpose of an inquiry to establish civil or criminal liability, I think that you begin to see that, in actual fact, an FEI is not a free-ranging operation where all forms of evidence are admissible and relevant. It is a fairly tightly circumscribed remit. That is the first point, but the second point I would make is that in any inquiry of this nature, effective case management is the key to the whole thing. It has to be effectively case managed in the preparatory stages. Once the inquiry starts, it requires efficient, competent chairmanship to ensure that those are the points that it addresses and that other questions are not gone into. It makes some considerable demands on the presiding sheriff, but, as long as sheriffs keep that in mind, they should be able to conduct the inquiries expeditiously. Just on the matter of delays, I know what you say that there is only 10 per cent of the 50 would go beyond the 11 days and make on to four to five months. Lord Cullen recommended the early hearing to be held within three months. That would be covering the cases in which it was being delayed, the main point being to keep the relatives informed and to make sure that they are informed. Do you have a view on that? I think that there are two different things. One, what I was talking about, was the court end of the process in terms of the long hearing cases. There are two particular perspectives in relation to the early hearings. I know that the world president will want to make his own views on that. First of all, it is about trying to establish what is the purpose of them. Quite clearly, there seems to be a suggestion that this is very much about keeping the crown on its toes and making sure that there is good information in relation to the flow of information between the crown and the family. To me, that sounds like a management oversight of COPFS. I am just slightly puzzled as to why that is best seen to be a judicial role. There is quite a fundamental question on whether that is a proper role and a proper use of judicial time, which is essentially about the management of Crown Office in terms of how they operate and how they communicate with families involved. Lord Cullen himself said that if there was improvements in the way that was happening, that would negate possibility or at least lessen the argument for the early hearings. First of all, I have an issue about whether the purpose of it is correct. Secondly, there is also a need to think about the numbers that might be involved. There are currently about 5,500 cases per year that the Crown Office investigates, and I am presuming that you are not suggesting that there is an early hearing for 5,500 cases. If that was the case even on a simple arithmetic, if you thought that each hearing was going to take 30 minutes, that would take about the coven of two and a half sheriffs every year just simply to have these early hearings. Presum that if those early hearings were being thought of, it would be only in terms of cases that were mandatory for having an FAI, which would at least reduce it to a lower number of potentially hundreds rather than many, many thousands. I think that there is this issue about, first of all, the principle. Is it correct in a proper judicial role? I would have a doubt against that, but secondly, just the volumes in terms of how it could clog up a court system, depending on whether it was all reported instances or just those that were deemed to be mandatory. I see that the Lord President might well have views about the propriety of a judicial role. We are talking here, Ms Mitchell, about an earlier hearing than a preliminary hearing conducted under section 15. Is that right? Yes. It is really just trying to explain to the relatives what is happening, not to establish facts or to say if you are ready to go to court—none of those things—to keep the relatives informed and to make sure that the Crown and Procurator Fiscal does that, which we have heard in evidence. They do not always just now, so it is not them whom. I have to say that I am not really enthusiastic about this idea. It is not that I am not conscious of the need for an expeditious conduct to the thing, but I am just not sure that it is the best way to go about it. First, the court has to be very careful not to trespass upon Crown prerogative, and, of course, the whole question of initiating an FAI lies with the Lord Advocate. I would not like the court to be put in the position where it was exercising some sort of supervisory role over the Crown's decision-making process. I think that there would be a very serious constitutional issue there. In addition to that, it could be very expensive if they had these meetings on a regular basis. There would be a considerable public cost, particularly if lawyers were involved. There would also be a tendency to have meetings for the sake of having meetings rather than achieving anything. I think that the real answer here is that if the Crown were to establish good protocols of conduct by which they kept their relatives in touch so that they knew what was going on, we could achieve the same thing without the need for meetings. That would be my view anyway. If those protocols were not adhered to, who monitors that, or who then picks that up? I think that that is the problem. That is the point where I find it difficult, because I would not like to see the court attempting to exercise some sort of supervisory authority over the Lord Advocate, because I think that that would be constitutionally wrong. Is that because it is the court? Could anyone look at those protocols to see if the Crown of Procurator Fiscal was adhering to a reasonable time scale? My experience has been that, particularly in controversial cases, the relatives tend to be fairly vocal if there is delay or if there is a failure to give answers to what they would see as straight questions. I think that there is a degree of scrutiny of the process in most cases, but the answer is for the Crown to make plain its recognition of the need for expedition and to produce a regime of informing everybody with an interest in just exactly where they are. The tenor of what we have heard so far is that there is not really a problem with delays. There might be a nod-one or two. Perhaps that is not what you intend to come over, but I rather fear that there is a little bit of a glossing over of the real hardship that the families face when they are not getting the information. It does happen that they do not get the information and they do not have the wherewithal to do anything about that. I am entirely sympathised with that point of view. I think that if you are the families of people who have been killed in accidents, it is very difficult to accept that time passes and nothing seems to be happening. However, as we all know, there are many cases where there are very good reasons for that. As long as the Crown is able to articulate what those reasons are, then I think that public confidence is maintained. That is key. Ask the Minister General next week. It is really the balls in the Minister General Lord Advocate's court. Can you repeat that? Can I also just confirm one point? It is just on this issue at the glaze. I am sorry if I gave you the impression of glossing over. When I was talking about the delays on the court end, I am talking about where the court is in the form that an FAI is proceeding until the time the hearing takes place. I fully accept that there is a much longer period in that intervening period, which is I think the point of your early hearings. I was not trying to suggest that that is an issue of the period. I think that you accept that there are many reasons why there might be a long delay before there is even a decision if it is not a mandatory FAI or even if it was a mandatory, why it is not actually taking place. I think that we concur in the complexity in some of the cases. However, we just thought that we would test the early hearing idea and, as usual, we have had contradictory evidence for that old jolly and that old grist to the mill. John. I am interested. We keep hearing the term family and clearly families are absolutely at the heart of any issue here. There are also work colleagues and there are also the public. As elected representatives, we sometimes have to fend off press inquiries about deaths for very many months, while decisions awaited, whether there is going to be an FAI or whether, indeed, there is going to be criminal prosecutions. How do you suggest—you may say that it is further down the line than before it reaches you—how do we address that? Certainly, when it is all very well-keeping families involved, how were the public kept involved and informed? I am not sure that there is a satisfactory answer, I can give you to that, because so often the Crown's processes are reserved to the Crown. There could very well be cases where the Crown would consider it not to be in the public interest to make announcements and statements about a case. I can think of several very good reasons for that. There may be doubt as to the cause of death, there may be the need to carry out confidential inquiries and obtain expert views. Sometimes those things take a long time. If it is just a question of the Crown saying that, then I cannot see any problem over that. However, there may be a perception that because the Crown is not saying anything that in some way or another there is a culture of secrecy, I think that that would probably be a wrong perception. I think that it is a challenge. I think that everything should be done in the public interest. I think that the family is part of the public interest, but if things are done in the public interest, that is the most important. You accept that there are cases where it takes a very long time to find out the cause of death? Yes, indeed. I would really love to share the example with you, but for obvious reasons I cannot. It is one where there are various layers of interest. Clearly, there is a family interest, there is a community interest, there is an on-going police interest as well. It has become very complicated. Many years ago, I was one of the senior councillor in the Lockerbie inquiry, and it took several years before the Crown were in a position to hold the inquiry for very good reasons. I will not point to the Lockerbie. You and I will back off from that. That is for another day. Christian Fall by Lane, Fall by Jane, Fall by Rodd. Thank you very much, convener, and good afternoon. You just spoke, Lord President, about the Lockerbie disaster, and that comes into my question regarding... I do not know why. I am ordered to breathe even, but just go ahead. No, the example that you took coming to light regarding the death of the broads, and we had some people asking if the broad should always have the body coming back to Scotland. Is there exceptional cases? Are you sympathetic to the idea that there are exceptional cases that maybe death could be investigated without having the body back to Scotland? I have got no strong views on the matter. I doubt very much if there would be many cases where that was a problem. However, if the Parliament wants to enact that provision, I have got no strong views about it. It could be very useful in some cases. Thank you very much for the answer. Before you move on, Gil, you are supplementary. It is a completely separate question. I am sorry. I am going back to the end of the process. Are you sympathetic to the call that the recommendation of the sheriff should be binding? No. I do not think that that is a good idea at all. The sheriff makes a recommendation in the context of an FEI in which, as I have tried to emphasise, the remit is very tightly constrained, but there may well be other evidence that is not before the inquiry, which may emerge later, or it may simply be only of indirect relevance to section 1 subsection 3. In that case, the sheriff's recommendation might very well require to be reconsidered in the light of other evidence and to make it mandatory introduces a completely unnecessary degree of rigidity. It could, in fact, lead to completely unhelpful recommendations having to be acted upon. I do not think that that is in the public interest at all. We heard this morning that it could maybe change all the process altogether, the process of an inquiry, if we had that into the bill. Would you agree with that point? Yes. Let's suppose that the sheriff made a mandatory recommendation about something that affected an entire industry. That's the sort of thing where committees sit for years devising safety codes, and you might have the sheriff and forfer deciding on some recommendation that would acquire some legal force. That can't be right. If I may, another question as well. You just talked about the sheriff and forfer, the location, or the sharing them, where the inquiry should take place. Do you think that the bill links to your questions like some BBC interviewer? Off you go. Do you think that the bill strikes a right balance to try to encourage having special cases taken somewhere else, and at the same time trying to keep the idea that it should be local if needed, and should it be in the bill, but it should be local if needed? I think that in most cases it would be pretty obvious that the inquiry should take place in the jurisdiction where the accident happened, but there will be cases where it is much more appropriate that it should take place where the families are, and I think that that gives us the necessary degree of flexibility, all in favour of that. Do you quite happy the way the bill is drafted? Do you think that it strikes a balance where you wanted it to be? I have no criticism to make of the bill in that regard. We do not need a presumption put in as the sheriff suggests it. No, I do not think so. The idea is to keep things as flexible as possible, because you just never know when the unexpected is going to happen. If I can go back to the issue of the sheriff's recommendations, the bill suggests that the SCTS should be delegated to collate and publish the responses, whereas Lord Cullin's original recommendations were that the Scottish Government should do that, thereby charging the Government with the responsibility of overseeing it and determining whether legislation ought to proceed from some of those recommendations, if, for example, there are things that could affect an entire industry. Are you happy with the role that is given to SCTS? Does that have implications in terms of the resourcing of SCTS, or should Lord Cullin's initial recommendations that the Government should be responsible for that? I submitted a memorandum on the bill. I was unenthusiastic about the idea, to say the least. It seemed to me that the SCTS was not really an appropriate body for that particular responsibility, but, on the other hand, I have to say that I cannot think of any other body that would be any more appropriate for that responsibility. I have come to the view and I think that it is shared by Mr McQueen that, as long as we are properly resourced to do the job, we undoubtedly have the skills available to be able to do that. I am not opposing it any more. I was not really questioning the skills that SCTS has to be able to do in terms of where its recommendations are, which could require some sort of legislative change, but it would not be better for the Government to take that responsibility, because it would have the responsibility of introducing legislation. The Government is always completely informed of the decisions and views of SCTS. I really do not see this as a big problem. Mr McQueen will see it, of course, from a management perspective. Both the sheriff's determination and the recommendations would be published and would be shared with the Scottish Government. As the Lord President says, I think that we are being more pragmatic rather than particularly happy about it, but, nevertheless, we see that there is a logical link that would be an SCTS website that would have the determination, the recommendations and the responses to those recommendations. In terms of openness and transparency, it would be there for everyone to see. It is not particularly a skill that we have in terms of making assesses on responses coming back. We need to put in a function in place to deal with that, but it is mainly clear to the Scottish Government what we are. We have taken resource terms and they are prepared to support us in providing those resources, if needed. Is the financial memorandum adequate then? I think that what we have agreed is something that the Scottish Government would be something in the region of about £60,000 a year to provide the function that it would deal with, the response to all the recommendations, any redaction, any legal advice that would require on them, and then subsequent publications. It is following on from that yet another link. What would the practical implications be for SCTS if there were more mandatory FAIs required? Would that be a resource implication? I think that it depends, as all those things are, on essentially how long is a piece of string. I think that it would depend on how many mandatories and what specific cases were. Of the ones that are particularly suggested within the bill, we do not see that as being a major impact. Some of those may already be taken forward as discretionary FAIs. The Crown Office's view on making an assessment is that, as they expect, the number of additional FAIs would probably be less than five in any one year. Given that our average is about 50 in any year and that that can range between 30 and 60, as long as it is within those sort of tolerances, it is not a major issue. If there were changes at any later stage, it was increased in the mandatory cases to a much wider range and possibly longer running FAIs, and quite clearly it would be a bigger resource issue. However, in terms of the provisions in the current bill, it is not something that gives us any major concerns. On that, we have heard evidence previously on 5 May and again this morning about people who are subject to mental health detention. If they commit suicide whilst in that detention, should that trigger a mandatory FAI, I wonder if Lord Gil's got a view on that? I am not convinced of that. There are many fatal accidents where the cause of death and the precautions that could have avoided it are completely open and shut. Very often, in suicide cases, I think that there is absolutely no need for an inquiry. Very often, the circumstances are completely conclusive as to what the cause was. The other thing is that it would be very difficult to legislate in such a way as to make only those particular deaths mandatory. To be honest, I cannot quite see the justification for it. It seems to me that one of the justifications might be that people who are in the care of the state should be minimised if there are circumstances relating to their accommodation or their care that might have contributed towards that suicide and that needs to be identified and acted upon. Yes, I see that point, but I think that we can rely upon the good judgment of the crown to know exactly the type of case where that issue arises and the other cases where it plainly does not. The section 4 is a child-requart kept at hand in secure accommodation. Should that be broader for a child who is in the care of the state rather than just in secure accommodation? Here, again, I think that we are in danger of imposing unnecessary rigidity into this system. The system by which the crown makes investigations and forms a judgment is, I think, the best model. Why would you pick secure accommodation and say that it is special but that a child is not actually in secure accommodation but is, of course, in the care of the state but is not in secure accommodation? Shouldn't there be a mandatory FAI? I am not taking up any rigid position on this. If that is what the Parliament wants, I am certainly not opposed to it. I am just seeking your view as to what the distinction should be. I just think that, at the moment, the crown exercises its prerogative in a responsible way. I think that we can rely on that. However, if the Parliament decides that it wants something stronger than that, I am not here to argue against it. I see. It may be that the committee takes a view that a child is in a special circumstance and that the state is in a different role from any other parent or foster or carer or something that has duties. Ma'am, convener, that is a perfectly tenable point of view. I would love to hear that. I do not hear it very often, so I will write that down and commit it to memory. You might tell my leader that as well, sometimes. I now move on to Rod, followed by Gil. Thank you, convener. Morning, afternoon, I should say, Lord Gil. We have heard some concerns about the creation of specialist sheriffs in fatal accident inquiries, leading to a possible centralisation of the fatal accident inquiry process. Any comments on that? I do not think that that is going to happen. I do not think that there is any immediate prospect of there being a centralised FAI system with a national FAI venue. That is not in contemplation at the moment, and I do not think that it is even on the far horizon. I do not see any need for it either. In the courts reform act, if I forgive me for mentioning that, we have given, as it were, broken down the rigid barriers in sheriffsdoms. Sheriffs now have the flexibility to sit wherever they are sent. If there were to emerge a small group of specialist FAI sheriffs, they could be deployed anywhere in Scotland as the need arose. That is a much better solution than having a centralised venue. In terms of participation and the powers that are available to the sheriff to decide who might participate in the inquiry, you have commented on that in your written submission. Would you just like to expand on that? Why do you think that it is important to give the sheriff the flexibility to control participation? At the end of the day, the sheriff must conduct those FAIs efficiently. What that means is making the most productive use of the time available, eliminating unnecessary or irrelevant evidence and eliminating unnecessary or irrelevant questioning. In order to do that, the sheriff must have a discretion to decide who will be the inquiry participants. He must make a judgment on that on the basis of the circumstances of the case and the representations that are made to the sheriff by those who claim to have an interest. That is just a perfectly normal facet of effective case management. The previous session of the sheriff's association was concerned about summary sheriffs dealing with FAIs. The argument that they were putting forward was that it may not become apparent early on that the case was complex and that the summary sheriff might not have sufficient experience. As the case developed, how do you respond to that? Do you agree with them on that? The summary sheriff will be perfectly capable of conducting a straightforward fatal accident inquiry. If it is a more complex inquiry, a sheriff should do it. In every case, we must trust the judgment of the sheriff's principal who will choose whoever he thinks is the appropriate person to conduct it, based on their experience and expertise. Do you think that the bill should allow sheriffs to retain the power to award expenses? Is that a current power that they have that does not seem to be replicated in the bill? I am not in favour of a power to award expenses. First of all, the awarding of expenses is a typical procedure in adversarial litigation, but a fatal accident inquiry is not adversarial litigation. It is simply a concerted effort to find the truth. The only reason why one would ever wish to award expenses against a party at an FAI would be if the party had behaved unreasonably, vexatiously or wasted time. The bill gives the sheriff the power to keep people out of the inquiry, either by not letting them be participants or by efficient management of the case as it is being heard. If the sheriff knows what they are doing and if the sheriff is in control of the proceedings, there should be no need for that problem to arise. It was very rarely used, but presumably it was only used in those cases that you illustrate there. I like it when lawyers disagree with each other if the sheriffs disagree with the Lord President, but that is far for the course. It is back to the mandatory FAIs. Lord Gil touched on that, but maybe it is just a performance for the evidence of what the panel's view is in regard to mandatory FAIs for industrial diseases. I am not in favour of the idea of mandatory FAIs at all. I think that there is a question here as to the Crown's prerogative to decide when and in what circumstances an FAI should be applied for. If you make that mandatory, you may be trespassing upon the judgment of the Crown. That is my first point. The second point is that in many cases the holding of an FAI is completely unnecessary because the facts are absolutely staring you in the face and there is simply no need for it. That is where the Crown exercises its judgment. The third thing that I would say is that this could be hugely costly in terms of public cost. I am not at all convinced that there is any cost benefit. Lastly, before you could make any judgment on this matter, you would really need to know what difference the introduction of mandatory FAIs would make in terms of numbers. I do not know the answer to that, but I think that it rests with those who would have mandatory FAIs to make some assessment of what additional numbers of FAIs there would be. At the moment, we just do not know. Mr McQueen, do you want to make further comment or are you happy with that? No, we do not have the information or data in terms of what the potential cases could be or the volume or the impact. Would the Lord Advocate's discretion kick in an industry that I know so well has lots and lots of new processes and new substances being used? Would the Lord Advocate kick in his discretion in that regard? That is exactly the sort of consideration that the Lord Advocate takes into account. There is a couple of case management things, such as keeping a grip on the FAI and keeping it to the straight and narrow that you have raised. In section 10, you suggest amendments that would make the sheriff in your submission discretion to the extent to which any person should participate by just looking broadly at them and also agreement of facts before an inquiry where you are suggesting the agreement of the evidence. I think that is written statements in advance to the sheriff. How do you see that working? Would it preclude people perhaps wrongly from being part of it? Would those statements have to be drafted by some of the legal background? An ordinary person might not know how to express stuff if they want to take part in a fatal accident inquiry and miss stuff out. That might be relevant. I strongly favour the idea that, in an inquiry procedure, as much of the evidence should be presented in written form as is possible, that eliminates unproductive use of time in the inquiry. The evidence can then be taken as read, and then, if anyone wishes to cross-examine on that evidence, they can indicate on what topics they wish to cross-examine the witness. What you find in practices is that a great deal of the evidence, probably two thirds or more of it, is completely uncontroversial and it is there and it is taken as read. I fail to see what benefit there is in having it read out other than to prolong the inquiry and incur public cost. That is the first point about evidence in writing. I would also consider that the preliminary hearing procedure is the key to obtaining agreement on facts at an early stage, so that there is no need to lead evidence that is completely uncontroversial. Another aspect of efficient inquiry management is to limit the participation of certain parties to the inquiry, where there are topics in the inquiry on which they have nothing to contribute. I do not think that there is anything unfair or unreasonable in that. That would be my opinion. Yes, I thought that I would raise it. As you are quite substantial, part of your written submission deals with tightening up, as it were, the evidence to go before an FAI. You say that it would allow the uncontroversial evidence to be lodged in the form of a report or an affidavit. If you are an ordinary person, you need to swear an affidavit, would you be legal aid for people to do this? Would you not require that? I do not think that that would ever be a requirement. I was merely suggesting ways in which it could be done. If I could give you an example from the stock line inquiry, admittedly that was not an FAI, but it was dealing with a series of fatalities. A great deal of the evidence was obtained by the Procurator Fiscal, interviewing witnesses and getting their precognitions. The inquiry team at the stock line inquiry followed that up with their own interviews with certain of the key witnesses. The system works quite well, I thought. I am not sure that there is any need for the formalities of affidavits. In your submission, that would allow uncontroversial evidence to be lodged in the form of a report or an affidavit. It goes on to say that it would be considered and treated as evidence in chief. That is why I raise affidavit, because it is in your submission. By all means, if you want to make an affidavit, if it is on something that is controversial, yes, but so much of it is uncontroversial that an affidavit procedure would be unnecessary. I do not know if you are present, or I will ask two of the previous witnesses about this particular submission that you had made. I am concerned with anything that would appear to limit. I understand that you do not want a free-ranging all over the place inquiry, you want it kept to the specific. How would you establish if someone has got something of value to say without having heard from them either in writing or in person? That is where good case management comes into the picture. Under section 15 at the preliminary hearings, the whole overriding purpose is to identify what the key factual issues are. If other people come along and say, we have three more issues that we want to investigate, it is then for the sheriff to decide whether that falls within section 1 subsection 3. If it does not, he says so, and that is that. Is participation in the actual event rather than the entire process that you are talking about? Yes. It is possible to have quite a range of participants in the inquiry, but with some of them only contributing on certain issues. I understood something that you said earlier when you were talking about mandatory inquiries. Were you saying that you were not in favour of any mandatory inquiries or just the extension of mandatory inquiries? No, what I am not in favour of is a blanket requirement that every fatal accident must result in an inquiry. I honestly do not see the point. We thought that you were saying something devastating there, as a final blow to the legal system. I am glad that I got clarified a little bit. Well done. I thank you all for your answers. As you know, this is Lord Gyrill's last appearance. He will be delighted to know about the kind of worry that he retires. I thank you for being very instructive. Sometimes, if I may say so, entertaining answers must pick up on the phrase, not enthusiastic. It is such a body blow to things. I think that I will deal with that. We wish you well in your retirement. Ma'r ungin, convener, can I just say that it has always been a pleasure to appear before this committee? I am grateful to you, your members and your predecessors for the great courtesy that I have always been shown. Thank you very much. I will suspend now because we are going into private session, as previously agreed.