HL Deb 09 December 1975 vol 366 cc819-43

2.55 p.m.


My Lords, I beg to move that this Bill be now read a second time. Its purpose is to consolidate the legislation governing public inquiries into deaths in Scotland and to modernise the procedure followed at such inquiries. With one important exception, to which I will refer shortly, this Bill implements the recommendations made by the Grant Committee on the sheriff court in its Report published in July 1967. In particular, it provides that inquiries are to be held by the sheriff sitting alone, in place of the present cumbersome system whereby inquiries are held by the sheriff and a jury of seven people—a procedure which makes inquiries unnecessarily long and expensive. Apart from this, the Bill clarifies the powers of a sheriff in such inquiries and makes various procedural changes which will tend to facilitate the efficient conduct of inquiries.

There is, however, a more particular reason why legislation on this subject has now become urgent. There is considerable doubt as to whether it is competent for the sheriff to hold fatal accident inquiries into deaths occurring in connection with oil operations on the part of the Continental Shelf to which Scots law applies. As a result of this doubt, the Lord Advocate had to order that no further inquiries should be held into such deaths. This is plainly unsatisfactory in view of the number of fatal accidents which have occurred in connection with oil operations and the resulting public concern regarding their safety.

This gap in the law has now been partially closed by the Continental Shelf (Jurisdiction) (Amendment) Order 1975 which came into force on 20th November 1975. This gives the sheriff jurisdiction to hold fatal accident inquiries into deaths occurring in connection with mineral operations in the Scottish area of the Continental Shelf, but only where the cause of the accident is clearly the act or omission of some person. This restriction is necessary to keep within the terms of the Continental Shelf Act 1964 under which the order is made. But it still leaves the situation unsatisfactory, since there may well be many cases where it is impossible to tell, prior to holding an inquiry, whether the death resulted from the act or omission of some person or was purely accidental. The Government therefore consider it essential that the sheriff be given power to hold inquiries into all cases of accidental death occurring in connection with mineral operations on the Continental Shelf, and this the present Bill does.

Before looking at the provisions of the Bill in more detail, I should perhaps say something about when fatal accident inquiries are held in Scotland. Firstly, under the Fatal Accidents Inquiry (Scotland) Act 1895 where an employee or an employer dies as a result of an accident occurring in the course of industrial employment, an inquiry must be held. Secondly, under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1906, the Lord Advocate has a discretion to order a public inquiry into a "sudden or suspicious" death occurring in any circumstances, where he thinks this is in the public interest. In both these cases the inquiry is before a sheriff and jury. In addition to these fatal accident inquiries the Prisons (Scotland) Act 1952 provides that an inquiry must be held into any death of a prisoner in a prison. In this case the inquiry is normally held before the sheriff without a jury. Other Statutes, perhaps most notably the Health and Safety at Work Etc. Act 1974 also make provision for inquiries but these inquiries are not before the sheriff.

After due deliberation, the Grant Committee in its Report recommended that the provision in the Fatal Accidents Inquiry (Scotland) Act 1895 that an inquiry must be held in every case of death resulting from an industrial accident should be repealed, and that instead an inquiry should be held into a fatal accident only where the Lord Advocate considered that it was desirable. Extensive consultations have been undertaken in connection with all the Grant Committee recommendations regarding fatal accidents, and in August 1973 a Consultative Paper was circulated among all bodies having an interest in this matter. The Scottish Trades Union Congress made very strong representations against the proposal that mandatory inquiries into industrial accidents should be abolished and, after very careful consideration of these representations and all other comments made regarding this point, the Government have decided that it would be unwise and possibly even harmful to abolish this requirement. I would mention that the Law Society of Scotland also made representations to this effect though these representations were subsequently withdrawn.

In this Bill in fact we propose to extend in two respects the circumstances in which inquiries must be held. In the first place, the Bill requires an inquiry to be held into any death which results from an accident in the course of any employment, whereas at present inquiries need only be held into deaths resulting from accidents in industrial employment. Thus, under the Bill inquiries will now be required to be held, for instance, into deaths of employees, employers and self-employed persons, resulting from accidents in offices, shops, schools and hospitals. To the Government it appears quite indefensible to draw a distinction in this respect between industrial and non-industrial employment. We should be equally concerned with the safety of the whole workforce, and developments such as the increased use of office machinery have plainly greatly increased the risks in non-industrial employment. I would therefore hope this extension will receive your Lordships' support.

In the second place the Bill requires that there shall be an inquiry into deaths of all persons in custody. At present it is only the deaths of prisoners in prisons which must be investigated by a public inquiry. This extension will cover, for instance, people who have been arrested but have not yet appeared before the court. It is clearly highly desirable that the death of any person in these circumstances should automatically be subject to public inquiry and I would hope that this too will be generally supported.

Turning to the actual provisions of the Bill, Clause 1 sets out the circumstances in which an inquiry must be held—extended as I have indicated—and the circumstances in which the Lord Advocate has a discretion to order an inquiry. I would mention that under Clause 1(1)(b) this discretion of the Lord Advocate extends not merely to deaths occurring after the Bill comes into force but also to deaths occurring up to three years before the Bill comes into force. The purpose of this is to enable inquiries to be held, if it is thought necessary, into deaths in connection with oil operations on the Continental Shelf where fatal accident inquiries have not been held because of the possible gap in the law to which I have already referred. Such cases will be comparatively few, but it is clearly desirable that they be investigated. I would stress that this provision is retrospective only in the sense that it allows future inquiry into past deaths. It does not retrospectively alter the rights of any person.

Clause 2 gives the procurator fiscal in investigating a death for the purposes of an inquiry the right to obtain compulsory statements from witnesses. He had not this power before. It is in line with his powers in criminal cases and should make for more effective investigation. I would stress that it is only if a witness disobeys an order of the sheriff to give a statement that he is penalised under this clause, and the sheriff need only give such an order if he thinks it expedient. Clauses 3, 4 and 5 provide for the procedure at an inquiry. The only major departure from existing practice is that the sheriff will now preside alone, without a jury. Clause 4(4) gives the sheriff a new power to impose restrictions on reporting where a person under 17 is involved. This is in line with practice in legal proceedings involving children under the Social Work (Scotland) Act 1968.

Clause 6 provides what findings may be made by the sheriff at the conclusion of the inquiry. The main departure from existing practice is that there is no necessity to make a finding of fault where appropriate. This is because the purpose of the inquiry is essentially to find out facts, not to make accusations based upon them. There is nothing, however, to prevent a sheriff identifying a person's act or omission as the cause of the accident where this is clearly the case. Another important provision of Clause 6 is that the sheriff's findings may be based on the evidence of one witness where appropriate. This is a relaxation of the strict Scottish rule that all evidence must be corroborated. The application of the strict rule seems inappropriate in a fatal accident inquiry, which is designed to elicit facts rather than to determine people's legal rights or obligations.

Clause 7 gives the Lord Advocate power to modify procedure by rules. There is no such power under the present legislation, and the provision of such power is desirable to enable flexibility in adjusting the procedure to changing circumstances. Clause 8 and the Schedule make changes to certain other enactments which provide, in particular fields, for public inquiries to ensure there is no duplication of inquiries under those acts and inquiries under this Bill. Clause 9 makes the important extension of the jurisdiction to hold inquiries into accidents and deaths occurring in connection with mineral operations on the Continental Shelf. I have already explained at the outset of my remarks the reasons for this.

In conclusion, I would say that this Bill represents a sensible and desirable measure of law reform which will make public inquiries into fatal accidents and sudden deaths quicker, cheaper and more effective; it makes a highly desirable extension of the mandatory requirement to hold inquiries to cover fatal accidents to non-industrial workers, and to cover deaths of people in custody other than prisoners in prisons; and finally, and most importantly, it enables public inquiries into all cases of fatal accidents connected with oil operations on the Continental Shelf. I therefore commend the Bill to your Lordships' House.


My Lords, before the noble Lord sits down, could he tell us where the Scottish area of the Continental Shelf is defined?


My Lords, I will pick up that point later in the debate.

Moved, That the Bill be now read 2a.—(Lord Kirkhill.)

3.10 p.m.


My Lords, I should like to thank the noble Lord, Lord Kirkhill, for having explained so clearly the purpose of this Bill. It seeks to bring up to date the present legislation and to replace and repeal the three previous relevant Acts. I am sure that that purpose is not controversial and that the House will support the principle of the Bill. There is, perhaps, a point of substance which needs very careful consideration: that is, whether it is right to dispense with juries in every single case. That is something on which the Government have decided and it was a recommendation of the Grant Committee, but I shall give an example or two later to indicate that this is a matter of some importance on which the House will have to decide.

For those familiar with the system South of the Border, I think it might be helpful to explain that in Scotland there is no such thing as an inquest and there are no coroners. That is the chief reason why in certain circumstances there is a need for fatal accident inquiries. As the noble Lord the Minister has told us, the present system requires the Lord Advocate to call a fatal accident inquiry into being in certain circumstances, and these include accidents in industrial employment. In those cases a fatal accident inquiry is obligatory. At present, the Lord Advocate has discretion to decide whether or not to hold inquiries in other circumstances. The noble Lord, Lord Kirkhill, was explaining to us a few minutes ago the changes suggested in this Bill. First, it is suggested that in future a fatal accident inquiry should be mandatory for an accident occurring during any employment and not restricted to industrial employment. I notice that the words "or occupation" are included in the Bill, so it seems that an accident in virtually any kind of employment will now fall within the scope of this Bill. Secondly, the Bill spells out that an inquiry must be held—it is not left to the discretion of the Lord Advocate—whenever there is an accident when a person is in legal custody and not simply in prison.

I think this, too, could be a controversial point because it extends the mandatory element in the present system, and I am sure this is something we shall all want to consider at Committee stage. I recognise that the object of the Government is to enable the procedure to work more quickly and effectively, but I am sure that this extension of the mandatory element needs to be considered very carefully.

I think we can agree that the Bill would improve the present procedure by enabling it to be carried out more quickly. From what the noble Lord said, it is clear that it would also reduce expenditure and, I suggest, would in addition save the time of jurors in Scotland. But there is the question of whether it is right to dispense with juries in all cases in order to achieve quicker results. The noble Lord the Minister knew that I was concerned about this and has been good enough to write to me. I am prepared to accept the recommendation of the Grant Committee and I believe we can agree to dispense with all juries in all cases. However, I should like to draw attention to the Ibrox incident. While we hope there will not be disasters of that magnitude in the future, the tragic accident at the Rangers and Celtic match at Ibrox at the beginning of 1971, causing 66 deaths, was justifiably the subject of a very full inquiry under the existing legislation. The question of crowd safety at such sporting events has been a matter of great public concern. The results of that inquiry, together with the subsequent recommendations of the Committee which was chaired by the noble and learned Lord, Lord Wheatley, have led to proposals to avoid a repetition of that kind of accident. If there are disasters of that magnitude in future, it is proposed that there shall be no jury but that the matter shall be decided by a sheriff, to be appointed by the Lord Advocate.

We come now to the question of witnesses, referred to in Clause 5. As I see it, there is a safeguard about the admissibility of evidence. I am not sure whether it has been repeated from the present legislation, and perhaps the noble Lord can tell us about that later; but it protects a witness from admissibility of evidence in any other judicial proceedings. I presume this protection is to enable a witness to speak up freely at an inquiry. The noble Lord, in his introduction of the Bill, touched on the question of recommendations by an inquiry. He pointed out that the Bill does not in future require a sheriff to find fault, but there seems to be very little said about recommendations in the Bill.

The present position, as I understand it, whether or not it is written into the Statutes, is that a sheriff holding a public inquiry under the fatal accidents legislation is free to make recommendations. Such recommendations have been very valuable in certain circumstances, their purpose, of course, being to enable any necessary preventive action to be taken immediately so as to avoid a repetition of that kind of accident. So I should be glad if the noble Lord could tell us a little more about the question of recommendations and whether, even though this is not written into the Bill, the chairman of an inquiry none the less in future will be able to make a recommendation arising from his findings at the inquiry.

It is appropriate that this Bill should extend the scope of the fatal accident procedure to the part of the continental shelf to which Scots law applies. In the bid to win North Sea oil soon, there have been, unfortunately, several fatal accidents involving divers. In future, presumably, it will be possible for all accidents based on oil and gas installations on the continental shelf covered by Scots law to be investigated through the procedure to be followed on land. I hope this will help to provide information quickly and lead to the prevention of similar accidents. This is possible because of international agreement on the treatment of the continental shelf. Here I come to a point which my noble friend Lord Strathclyde raised a moment ago. There is no allocation of sovereignty under the agreement which, as I recollect it, was made in Geneva in the 1950s. Nor is it a question of allocating sovereignty of the sea or the seabed, beyond the territorial limit. This is a practical arrangement, allocating the right to countries of exploration and extraction of substances from the continental shelf. With it, there is the attendant right to legislate in certain matters including those concerning safety.

Under Clause 9 an arrangement is made for applying this Bill to what is called the Scottish area of the continental shelf. In the 1960s, for administrative convenience a line was drawn directly East from the Border to the median in the North Sea to divide jurisdiction on the continental shelf between the Scots law and English law; this is the point which my noble friend raised.

But it must be made clear that under the international rules for frontiers and medians, which have applied between separate sovereign countries in the allocation of the continental shelf in the North Sea, and which were arranged quite quickly in 1963 and 1964, the line would be drawn North-East from the Border into the North Sea. Scots law is, to some extent, now extended further than it would be if the principle of frontiers and medians, which was used in the North Sea, had been applied. Indeed, some oilfields would be in England's sector of the North Sea if that system were ever to be applied.

I should also point out that, if fragmentation of the United Kingdom into separate countries were ever to happen, the Shetland Islands would most probably opt for independence and, under the same international rules which have been applied to the North Sea by agreement of all concerned, the majority of the oil so far discovered would be in the Shetland sector. Once one begins dividing up in this kind of way it can lead to strange situations.

The second paragraph of Clause 9 goes some way in making clear that this is at present arranged as a matter of administrative convenience within the United Kingdom. As a result, as I have just said, Scots law extends somewhat further than it would if the North Sea were treated on a median and frontier principle within the United Kingdom. But I would ask the noble Lord, Lord Kirkhill, whether he can tell us how the jurisdiction of the shelf is to be divided within Scotland. Will it be clear which procurator fiscal and which sheriff are involved in a particular case? Will a chart have to be studied to determine whether the position of a rig is in the area of one authority or another? This is the kind of query which we can pursue at the Committee stage and which I am sure other noble Lords will wish to raise, but the noble Lord, Lord Kirkhill, may be able to tell us something in general now. Doubtless we shall have points of this kind to raise when we reach the Committee stage, but I hope that the passage of this Bill, perhaps with some amendment, will improve the present procedure for fatal accident inquiries.

3.23 p.m.


My Lords, as usual, the noble Lord, Lord Campbell of Croy, has left me very little to say, but I should like to make one or two points on this sensible and very necessary Bill. It is true that in the North Sea at the present time we are—to use a hackneyed phrase—right at the frontiers of technology. Enormous sums are being paid in wages to young men who are willing to take risks, and I believe that approximately 19 young men have died in diving accidents. Certainly, a young man is entitled to risk his life for money, but a Government have a duty to see that the rules of safety are observed, and this Bill, with its sensible provision to force the Lord Advocate to order an inquiry in the case of death on the continental shelf, is very right and timely.

The provision to make a public inquiry mandatory in the case of death in custody of any sort is also sensible, and in line with the needs of a freedom loving democracy. But I maintain that it would be possible to safeguard individuals by making an inquiry mandatory in the case of death from industrial injury if some of the interested parties demand one. I am told that many inquiries are unnecessary, and I should have thought that the objections of the trade unions would have been met if a provision had been inserted stating simply that where an interested party demanded an inquiry it ought to be held.

I welcome the abolition of the jury. In all the inquiries with which I have had anything to do the sheriff has told the jury exactly what they should say. In some cases they have been stupid enough to reject the advice; but in most cases juries are unnecessary, and I should have thought that in technical cases the provision of a qualified assessor was infinitely more valuable than 15 uninstructed good men and true. So that the Bill is sensible. It is bringing up to date the law with regard to new technology, and we welcome it so far as it goes.

I should like to take a little further the observations of the noble Lord, Lord Campbell of Croy, as regards the area covered by the Bill. I know nothing about international law; but I know something about politics in Scotland, and your Lordships can bet your boots that this Bill will be cited if ever we have a situation where the separatists gain power in Scotland—and some recent by-elections indicate a danger of that. The Bill says that an inquiry must be held when a person has died in Scotland while in legal custody, and goes on to say that the continental shelf should be treated as Scotland in this regard. This Bill may well be cited and I think that the Government who, in their White Paper on devolution, have made such a mess of good intentions as regard Scotland, need to be very careful about what they are doing.

I believe that Scotland should get more than her 10 per cent. share of the revenues, but I am not one of those who think that it is better to be a rich Scot than a poor Briton. However, I feel that the Government should be very careful about what they are doing here. It is true that if you draw a line East from Berwickon-Tweed you include the whole of the valuable oil areas; but if you follow the frontier line—I do not know whether or not this is international, but it is a practice set in the division of the North Sea—you almost exclude the Forties field, depending upon where you draw the line, and a great many other valuable fields.


My Lords, I may have been in danger of over-simplifying the procedure. It is a very complicated, agreed international procedure, where you start by drawing a tangent where the frontier meets the sea, but it is generally accepted.


My Lords, it was accepted in this case. But, anyhow, both the noble Lord and I agree that there is a great danger that this Bill may be quoted in a different context, and we want the Government to make quite clear exactly what they mean by saying that the writ of Scottish law now runs right out East to the Continental Shelf from North Berwick. I should like the noble Lord, Lord Kirkhill, to be quite explicit about what he means by the "Scottish area of the continental shelf", and about what restrictions he places on the meaning.

3.29 p.m.


My Lords, there is little that the noble Lord, Lord Kirkhill, said with which I disagree, but I am bound to say that I feel fairly strongly about the area of disagreement between us. The noble Lord, Lord Campbell of Croy, and the noble Lord, Lord Mackie of Benshie, have described this Bill as a sensible measure, as indeed in most respects it is, and it takes a little courage, perhaps, to introduce a somewhat different note and to suggest that everything in the garden is not quite right so far as this Bill is concerned, and that the way in which such matters have been handled by the Government should be called into question before your Lordships give approval in principle to the Bill.

Before I deal shortly with the Bill I should, for the sake of prudence, declare an interest. The matters with which this Bill are concerned lie exclusively within the jurisdiction of the sheriff court in Scotland and I hold the office of Sheriff Principal of Glasgow and Strathkelvin, in terms of population the largest of the six sheriffdoms into which Scotland is divided. Prior to assuming that office, for my sins—for I can think of no other reason—I discharged the duties of the Director of the Scottish Courts Administration. This was a body which was established to discharge on behalf of the Secretary of State for Scotland the duties, inter alia, in relation to the sheriff court which were imposed upon the Secretary of State for Scotland by the Sheriff Courts (Scotland) Act 1971.

To turn to the Bill, there are a number of points on clauses which no doubt your Lordships will wish to consider in Committee. Beyond that, the Bill appears, at its best, to be a sensible and long overdue measure and, at its worst, a quite innocuous little measure. However, there is one provision in the Bill which your Lordships might regard as quite mistaken. Whether your Lordships will so regard it will perhaps depend on whether the noble Lord, Lord Kirkhill, can give satisfactory answers to a number of questions which have to be put from the point of view of those of us who will have responsibility for operating the provisions of this Act in the courts. The provision concerned is contained in Clause 1(1)(a)(i) which flies in the face of the recommendation of the Grant Committee on the sheriff court. The noble Lord, Lord Kirkhill, conceded that point in opening the debate but I thought he glossed over it, so let us look at it a little further.

It will inevitably lead to a significant and unnecessary increase in the number of such inquiries. I say "inevitably" because inquiries become obligatory in a much wider range of case than that of the industrial fatal accident which is covered by the 1895 Act. The noble Lord, Lord Kirkhill, sought to justify that Act in terms of the protection which it gives to those in other than industrial employment. Those of us who have experience of conducting inquiries hope that something more effective will be provided to that end. I say "unnecessary" for reasons to which I shall turn in a moment, but the consequence will undoubtedly be to place an additional burden on courts which in the busy centres already function less efficiently than they should, in part because they have been starved of resources by central Government. I see from the Explanatory and Financial Memorandum that the Government, for reasons which I certainly cannot appreciate, do not intend to give Scotland any additional resources to deal with this additional work.

To bring the matter into focus, may I invite your Lordships again to look at the situation as it is now. There are two types of inquiry. First, there are the mandatory inquiries under the 1895 Act. These are restricted to fatal accidents involving persons who are engaged in industrial employment, and "industrial employment" is defined restrictively. Secondly, there are the inquiries under the 1906 Act which gives discretion to the Lord Advocate to order an inquiry into any sudden or suspicious death if he thinks that this is expedient in the public interest.

In modern times certain features of these inquiries have given ground for criticism. The Grant Committee on the Sheriff Courts made certain recommendations upon them and I do not think that they can be dismissed quite so lightly as, with respect, the noble Lord, Lord Kirkhill, appeared to dismiss them. The Committee was presided over by the then Lord Justice Clerk, the No. 2 in Scotland's judicial hierarchy. The Committee was eminently well qualified to pronounce on what was wrong in this as in other spheres of the sheriff courts' work and its conclusions and recommendations numbered 375.

Speaking from recollection, with the exception of this recommendation, the remainder have been accepted by successive Governments. The process of implementation was put in hand by a Labour Government and taken on by a Conservative Government. Its recommendations on this matter are to be found at you from paragraphs 317 to 322 of the Report and I make no apology to your Lordships for quoting them to Command 3248. They say: We take the view … that the compulsory fatal accident inquiry under the [1895] Act serves no very useful purpose and should be abolished.… Inquiries of this kind may have served a useful purpose in the industrial conditions that prevailed at the end of the last century, but the existence of an effective corps of factory inspectors and inspectors of mines, and the enforcement of the Factories Acts and similar legislation, … provide a more effective method of dealing with problems arising out of working conditions". This is my point. They recommended that the obligatory inquiry should disappear because they thought that it served no useful purpose.

The Committee went on to recognise that there would be occasions when the cause and circumstances of a sudden death would give rise to public anxiety and when the holding of an independent judicial inquiry would be desirable in the public interest. Accordingly, they recommended the retention of the Lord Advocate's discretion under the 1906 Act. It is generally accepted that its provisions were sufficiently wide to cover industrial as well as other fatal accidents. Accordingly, the Committee's recommendation was that all fatal accident inquiries should be regulated by its provisions. The discretion of the Lord Advocate is part of the Scottish legal tradition. The Lord Advocate looks at these matters in a quasi-judicial way and decides, on a quasi-judicial basis, whether or not an inquiry should be held.

Why have the Government not only rejected that recommendation but flown off in the opposite direction? There is no doubt that the Committee's view is shared by most people with experience in the field, but if after the necessary consultations the Government had decided to maintain the status quo—that is, to keep obligatory inquiries for industrial fatal accidents and discretionary ones for the others—no great harm would have been done and I do not suppose that we should have argued very much about it. But what they have done is objectionable on two grounds. First, they not merely reject the recommendation of the Committee but romp off in the opposite direction. The possibility of increasing the scope for mandatory inquiries was never mooted before the Grant Committee. If it was, they did not think it worth a mention, and they were right. In the absence of a mention, it is fair to assume that they thought that it did not merit consideration—as, indeed, I submit it does not. The second ground on which this provision is objectionable is that there was no proper consultation whatsoever with the sheriffs principal on this proposal.

At one stage the noble Lord said that there had been full consultation. A detailed consultative paper was circulated, as he said, in August 1973. But the omission to consult with the sheriffs principal on the terms of Clause 1(1)(a) (i) of this Bill was certainly a serious one. I do not want to overstate the matter and suggest that it was shocking, because that might sound as if I was worried because they had not come and asked us what we thought of it. I think it was a little shocking because the consultative paper which was the only communication from the Government to the sheriffs stated quite unequivocally: It is proposed that new legislation should be introduced, giving effect to the two specific recommendations of the Grant Committee. The importance of this is that the sheriffs principal are not just judges; they are not just the judicial heads of the court. Parliament has imposed on them more extensive duties than that. They are by Statute responsible for the speedy and efficient disposal of business within their courts, and this provision in this Bill, I can assure your Lordships, certainly does nothing to promote the efficient working of the court and it may—and the question should be considered—in certain busy areas, impede it. If the Government will not accept my view of this, I invite them to seek that of the other sheriffs principal and sheriffs, as I suggest they ought already to have done.

Against that background—and I hope I have not introduced an undesirable note of controversy in relation to this otherwise sensible little measure—Iwould invite the noble Lord, Lord Kirkhill, to answer these questions. In spite of what he said about consultation, does he agree that the sheriffs principal were never consulted on Clause 1(1)(a)(i) and that in the course of such consultations as took place they were told that the Government's objective was, subject to Parliamentary approval, that mandatory inquiries would he abolished? Does the noble Lord agree that the sheriffs principal ought to have been consulted, particularly since they have been led to believe that the two recommendations of the Grant Committee would be implemented? Does he agree—and we should like to know for the future—that this was an elementary oversight for which someone should be asked to answer? Were the sheriffs, the Scottish Law Commission, the Law Society of Scotland or the STUC consulted on the proposal that is contained in Clause 1(1)(a)(i) of this Bill? Was anyone outside the magic circle of the Crown Office in Edinburgh consulted about it?

Finally, can the noble Lord tell the House whether the circumstances by which this provision will make life easier for Crown Counsel and the staff of the Crown Office played any part in the decision to put this provision into the Bill'? I hope the Minister will not be prompted to suggest that this is an unworthy suggestion to make, because to anyone who knows the Scottish legal background it is a very pertinent question and no one with whom I have discussed this matter can suggest any other reason for its introduction—and if that is the reason it is a thoroughly bad one. Your Lordships may feel that I have detained the House for too long over a piece of legislation that is perhaps of less than earth-shattering importance, but I venture to hope that I have satisfied your Lordships that there are questions which should be answered today, not only on the terms of the Bill but on the background to the preparation of this piece of legislation and the basis on which the Government conduct consultations with the people who are involved in carrying out in the field the legislation which is passed by Parliament.

3.45 p.m.

Lord HOY

My Lords, I am sorry to intrude. I really came in for the next piece of legislation but having listened to this debate I feel compelled to say a word or two in reply to what has been said. Indeed when the noble Lord, Lord Kirkhill, introduced this Bill this afternoon I thought he was in fact meeting the wishes of the people of Scotland. I never heard anything to the contrary and I am a little surprised at what has taken place. I will not say one word of criticism of the noble Lord, Lord Campbell of Croy, who has delivered more speeches in this House in two months than he did in five years in the place next door. I have been grateful for them, but it does not prove that he has been an expert on every one of them and I suggest that the criticisms he has made of this Bill this afternoon fell into that group. I also listened to a very old friend of mine, Lord Mackie of Benshie. He had no contribution to make, except to say that it was rather shocking. Anybody can get up and say that about any piece of legislation, but in your Lordships' House we expect an argument to back our opinions, and this was sadly lacking.

So I will turn my argument to the contribution made by the noble Lord, Lord Wilson of Lang side. I have known the noble Lord for a long time and am a little surprised at the criticism he made of this Bill. What is he saying? He said "We were not consulted": Who are the "we" he is talking about? He is talking about the sheriffs of Scotland or else he is not talking about anyone in Scotland.


My Lords, if I may interrupt the noble Lord, I also asked whether the Scottish TUC had been consulted.

Lord HOY

All right, my Lords. I do not mind the Scottish TUC being consulted but I might reply and ask why the Scottish CBI had not been consulted, because the two organisations are parallel, one representing the employees and the other the employers. All I am saying on this particular issue is that if we are going to legislate for law in Scotland we must find a reason for so doing, and when my noble friend Lord Kirkhill introduces this Bill this afternoon it should not be forgotten that he is doing so in response to desires expressed in Scotland. It may well be true that on one or two occasions the sheriffs have felt that they were not consulted.


My Lords, if the desire has been expressed by Scotland at this end, why was it not expressed to the Grant Committee? Who has expressed a desire for mandatory inquiries in Scotland—can my old friend the noble Lord, Lord Hoy, tell us that?

Lord HOY

No, my Lords, it is not my job to tell anybody in this House who has expressed anything. I might point out to the noble Lord that many people make requests to the Government who do not come and tell the Back Benchers what those requests are. That is a matter for the Government, because no matter what my personal opinions might be the decisions have to be made by the Front Bench and by no one else. All I am saying to the noble Lord is this. If in fact I am interested in legislation—and I have been over a long number of years—and if I have an opinion to make, then I take very good care (if I may put it very mildly) that the Government will know what my opinion is. I regret to think that the sheriffs have failed in this respect. I have a tremendous respect for the sheriffs in Scotland and when the noble Lord, Lord Wilson of Langside, says that they want to get on with the administration of justice I should like to tell the noble Lord that I agree with him.

I live in the City of Edinburgh and I look at the whole of Scotland generally. Apparently we have one great weakness in the administration of law: we take a long time to do it, and we do not altogether absolve the sheriff's Bench from this trouble. So I say to the noble Lord that what we want to do is to expedite the law, but to do so accurately and well so that it records justice and not mere exploitation. To do otherwise brings no justice to anyone. When we are doing this, we must ensure that the people who are informed receive justice from the courts whether it be in the higher court or the sheriff's court. I honestly beg my noble friend Lord Kirkhill to believe that no Minister will come to the Front Bench, irrespective of which Government sits on it, just because he has a little foible about it. He does so because it is thought to be in the interest of justice and for the better administration of justice, whether in England, Scotland, Ireland or Wales. That is what my noble friend was doing this afternoon. I am a little sorry, if I may say so, that my old friend the noble Lord, Lord Wilson of Langside, should find all these criticisms. Having listened to him, I am certain that 90 per cent. of them could have been met by consultation, without a public presentation in your Lordships' House.


My Lords, before the noble Lord, Lord Hoy, sits down, and at the risk of flogging a dead horse, does he not appreciate that I was not suggesting that the Government are under obligation to consult about everything with everyone? That may make government impossible. I was suggesting that when they did consult, they were bound to trim any piece of legislation in accordance with the wishes of those whom they consulted, be they lawyers, judges, or anyone else. It is no good saying that we could have cleared this up informally. We were consulted and led to believe that something different would emerge. What I am saying is that what takes place should be in good faith.

Lord HOY

My Lords, the noble Lord. Lord Wilson of Langside, has already said that he and his friends were consulted. All right—consultation took place. It is for Government to decide that they have to make a decision, whether they agree or disagree with the representations that have been made. All I would say to the noble Lord is that having done so, you cannot come and argue that you have not been consulted. That is all I am saying. At the end of the day, no matter which Government sits on the Front Bench, the responsibility for decision must fall on the Government. Indeed. I can remember when the noble Lord, Lord Campbell of Croy, had to make decisions. I did not agree with very many of them, but I did not dispute his right to make them, because he was the Secretary of State for Scotland.


My Lords, in view of my previous intervention, I rise merely to thank my noble friend Lord Campbell of Croy for dealing with the matter so fully, from which I take it that Scotland has no measure of sovereignty over the continental shelf in the North Sea.


My Lords, I wish to refer to the point made by the noble Lord, Lord Wilson of Langside, regarding Clause 1(1)(a)(i). I think we should be very careful on this matter. The Committee under the chairmanship of the late noble Lord, Lord Grant, made specific recommendations. We must have an adequate reply as to why those recommendations have not been carried out in regard to this matter and, indeed, an explanation of why the drafters of this Bill have gone to the opposite extreme. It is rather extraordinary. I hope there will be ample scope to discuss these matters on this particular clause which are becoming rather complicated, and of clearing up the back history behind it. I hope there will be ample opportunity when the Bill reaches Committee stage.


My Lords, may I clarify—

Several Noble Lords


3.56 p.m.


My Lords, in picking up some of the points made by your Lordships in the course of the last few moments. I should like your Lordships to bear in mind that this Bill consolidates, re-enacts in terms more appropriate to modern conditions and amends the provisions for public inquiries into deaths contained in the Fatal Accidents Inquiry (Scotland) Act 1895, which relates to fatal industrial accidents; the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1906, which relates to sudden, suspicious or unexplained deaths in any circumstances, and Section 25 of the Prisons (Scotland) Act 1952 relating to deaths of prisoners in prisons. It is the view of the Government that the principal change in procedure effected by the Bill is that inquiries into deaths under the Bill will be conducted by the sheriff alone, whereas at present, inquiries under the Acts of 1895 and 1906 are conducted by the sheriff and a jury. It is with that background that I should like now to turn to one or two of the points made by the noble Lord, Lord Campbell of Croy.

My Lords, first, in relation to the question posed by the noble Lord as to the fact that the jury system is to be dispensed with in this case, he highlighted the Ibrox disaster, an occurrence which took place during his own Secretary ship of State for Scotland. The noble Lord wondered whether under the Fatal Accidents Bill in all circumstances it was entirely proper for the jury system to be abolished. In this respect I can only quote to the noble Lord the Grant Committee. I do not think it would be proper for me to do anything else.

I therefore quote the recommendation in paragraph 319, which reads: The evidence available to us"— that is, the Grant Committee— suggests that the jury usually do no more than give effect to a verdict dictated to them by the sheriff or sheriff-substitute, which merely records the cause of death. One or two witnesses suggested that on rare occasions, as where a person has died in police custody, the findings of a jury might be more effective in allaying public apprehension than the findings of a sheriff sitting alone. On balance, we"— that is, the Grant Committee— take the view that what is important is the public inquiry and the hearing of evidence, and not the form of the verdict. We have also had in mind that the time of jurymen is at present needlessly occupied, and we note that during the last war fatal accident inquiries were conducted without juries, without any ill effects of which we are aware. I make that point by way of explanation to the noble Lord, Lord Campbell of Croy.

The noble Lord also asked me about provisions relating to non-admission of evidence and whether these were repeated from previous legislation. The answer is, Yes, they appear in Section 5(4) of the 1895 Act. The noble Lord, Lord Campbell of Croy, wanted to know the position of the sheriffs as it relates to their continuing or otherwise to make recommendations. Clause 6(1) repeats the provisions of Section 4(7) of the 1895 Act, setting out what the jury can deal with in its verdict, but excluding the provisions that appear in Section 4(7) empowering the jury to bring in a finding of fault.

In reply to the noble Lord, Lord Campbell of Croy, may I also take in the point made by the noble Lord, Lord Strathclyde. Your Lordships may remember there was the general question: where is the Scottish area of the continental shelf defined? The Scottish area of the continental shelf is defined in Orders in Council made under Section 3(2) of the Continental Shelf Act 1964. The Order is the Continental Shelf (Jurisdiction) Order 1968, S.I. 1968/892. This has subsequently been amended by three amending Orders. I would stress that these define the area of the continental shelf to which Scots law applies for the purpose of regulating mineral operations—I think that is the key point, for the purpose of regulating mineral operations—including oil and gas operations only. The term, "the Scottish area of the continental shelf" is, I feel obliged to say, simply a shorthand term used for brevity in these matters; so I am advised.


My Lords, I am grateful to the noble Lord for giving way. What he has said confirms what I was indicating to my noble friend; that is, that this is an administrative arrangement, conveniently dividing the jurisdiction of Scots and English law, and it does not do more than that. I think the use of the phrase, "the Scottish area of the continental shelf", is an unfortunate one, but it is defined simply for the purpose of this Bill as a division between the two jurisdictions in law.


My Lords, by giving way I was hopeful that the noble Lord might leave it at that point. I would, if I may, welcome, as the noble Lord, Lord Campbell of Croy, does, the general provision which this will now make as it relates to fatal accidents on North Sea oil rigs. I think he might well agree with me that this is an improvement on the present position.

If I could turn briefly now to the remarks of the noble Lord, Lord Mackie of Benshie, the Government are appreciative of his general welcome to this Bill. Certainly the noble Lord, Lord. Mackie, was apprehensive about the extension of the mandatory procedure under Clause 1 of the Bill. The thinking behind this in Government terms stems from the definition, under the Fatal Accidents Inquiry (Scotland) Act 1895, of industrial employment or occupation. The definition is: Industrial employment or occupation can be defined as the performance or superintendence of manual labour, or the working, management or superintendence of machinery, other appliances or animals used in work". The Government's view is that this completely excludes the position of those who work in offices, shops, schools, et cetera, as I pointed out in my opening remarks. If it is of help to the noble Lord, I should explain that that is the Government thinking behind the mandatory extension in Clause 1.


My Lords, it appeared to me, as a layman taking advice from my noble friends—and I did prepare, coming from Perth to speak, as obviously the noble Lord, Lord Hoy, did not—that the noble Lord, Lord Wilson, who is a lawyer, agreed entirely with me that much time of the courts will be wasted if this is made a mandatory requirement in all cases. Perhaps the Government ought to look at this. I suggested that perhaps conditions could be laid down whereby any interested party could demand an inquiry and it would then be obligatory. In fact, the lawyers' case and the laymans' case seem to coincide.


My Lords, if the noble Lord will be patient, I hope later to reveal further aspects of Government thinking, as I respond to the noble Lord, Lord Wilson of Langside. The noble Lord, Lord Wilson of Langside, takes issue with the Government on what I consider to be an issue of first principle. Before I attempt to describe the Government view as to this first principle, I think I have to respond to comment which has been made as to whether or not consultation has taken place with various interested bodies. The information I have is that in 1973 a Consultative Document outlining proposals for legislation to implement the Grant Committee's recommendations was sent to 14 bodies, of which the Sheriffs Association and the Association of Sheriffs Principal were but two. Subsequently, of course, to 1973, as your Lordships will be aware, there has been a change of Government. At this point I must revert to the issue of principle which exists between the position which the noble Lord, Lord Wilson of Langside, adopts and that which the Government see as being important in terms of this Bill. I want to emphasise to your Lordships that the Government considered very seriously the arguments in favour of abolishing the mandatory requirement, which was the Grant Committee recommendation, and also, of course, the terms of the Consultative Document. The Government considered also the very strong arguments against the recommendation which were put to the Government by the Scottish Trades Union Congress.

The Government decided that the arguments in favour of retaining the mandatory inquiry were more persuasive than those in favour of abolishing it. For example, despite the introduction of stringent safety requirements and effective inspectorates, there is concern that any breach of the safety requirements should be brought into the open by a public inquiry. The Government have also had representations to the effect that a public inquiry could help the deceased's relatives and their legal advisers to decide whether there was sufficient ground for a civil claim for damages. As your Lordships can see, from a conflicting position in the end it really comes down to a choice. The Government, having weighed these arguments in the balance, have taken the view that the representations made to them by the STUC were compelling, and, in the light of that, have decided that the mandatory inquiry should be retained, and, of course, that certain of the provisions contained within the mandatory concept should be extended.

I am unable to reply to two other points of detail made by Lord Wilson as to the exact point and time of consultation, but I intend to check on that and I will certainly communicate with him about it. In conclusion, I should like to thank my noble friend Lord Hoy for his most helpful intervention, and to assure the noble Lord, Lord Balerno, that the Government continue to take very seriously all representations made to them anent this Bill and continue to give serious consideration to each of its clauses.

On Question, Bill read 2a, and committed to a Committee of the Whole House.