§ 3.2 p.m.
§ Report of Amendments received.
§ Clause 1 [Investigation of death and application for public inquiry]:
The Earl of SELKIRK moved Amendment No. 1:
Page 1, line 10, leave out from ("was") to ("employment") in line 11 and insert (" at his place of").
§ The noble Earl said: My Lords, frankly, this is not one of the most important Bills we have had to deal with (except for Clause 9, which was drafted by my noble friend Lord Campbell; and the House is grateful to the noble Lord for his drafting of it) but there is a part of the Bill which I think could be improved and on which I should certainly like to have a fuller explanation of what the Government intend. The position to which we have come, if I may recall it, is this. For a very long time it has been the responsibility of the Lord Advocate to investigate any deaths other than those by natural causes. There has been only one exception to that, and that is under an Act passed in 1895, when Lord Salisbury was Prime Minister, which made it obligatory that any deaths occurring in industry should necessarily have a judicial inquiry.
§ Seventy years later the operation of this Act was brought under review by Lord Grant, then Lord Justice Clerk, and he came to the conclusion that it was not necessary under the Act to have obli- 355 gatory judicial inquiries into deaths in industry. He had two reasons for doing that. One was that it had become clear that many of the inquiries were no more than a formality. I believe it is the case that four or five of these inquiries, even perhaps six of them, could be taken on one morning in the sheriff court, so clearly the inquiry was more or less a formal business. That was one reason.
§ The second reason he gave was that all these matters were properly covered by factory inspectors; and if anyone doubts the accuracy of that I ask them to look at Schedule 1 to the Bill which we are now considering. There your Lordships will see a number of Acts mentioned—the Gas Act, the Mineral Workings (Offshore Installations) Act, the Health and Safety at Work etc. Act, the Petroleum and Submarine Pipe-lines Act, In each of these cases the 1895 Act is made entirely subordinate to whatever arrangement is provided for in those Acts; and I have no doubt whatever that in every case of any significance it will be the factory inspector, or alternatively someone appointed by the Secretary of State, who will conduct the inquiry under one of these various Acts. There is therefore a very strong reason for removing mandatory judicial inquiries from this clause, because, as I say, they are a formality and the area is already fully covered.
§ We came to know during the Committee stage that the Government have been under considerable pressure to retain a measure of obligatory inquiry. We all recognise the emotive pressures on Governments which exist, and it is not my intention to embarrass the Government in any way by this Amendment. It is my intention simply to make this clause more sensible. As I read the clause at present it would include not only what one might call accidents at the job: it would also bring in road accidents, running-down accidents of all kinds, and I think this is undesirable. I gave some examples in the course of the Committee stage. The simple answer is that if we include those it means that if someone is killed on the road, we have to inquire why he was there before deciding what procedure should be followed. As the man is dead, ex hypothesi it is not easy to say why he was there. Therefore, I think it would 356 be foolish to bring in some road accidents and not to bring in the lot. So far as I know, the examination of road accidents is as satisfactory as it can be—at least I have heard no complaints on this score—so I should have thought that, by and large. road accidents should be dealt with by the same procedure.
§ The intention of my Amendment is simply to say that these mandatory inquiries will continue in those cases concerning persons at their place of employment; that is to say, when they are in their place of employment. Those words seem to me to confine the mandatory requirement to those cases which the Government have said they require to cover. The words which the noble Lord, Lord Kirkhill, used were, "any case where there seems to have been a safety regulation breached". That is the example he gave, and I entirely agree that that is a matter which should be very carefully examined. I suspect that, as a matter of fact, in most cases it will be examined under the relevant Act by a factory inspector rather than by this procedure, but, none the less, it remains as a mandatory requirement that when a man is actually at his job there will be a mandatory inquiry.
§ That is the purpose of my Amendment: particularly to take out all road accidents and other things which in most cases have very little to do with working in the place of employment itself. It is that which I am trying to circumscribe, to make more clear and, I hope, define the circumstances in which a mandatory requirement will apply. It is those cases which I have in mind, and it is for that reason that I ask the Government to accept this Amendment. I beg to move.
Lord CAMPBELL of CROY
My Lords, I support this Amendment, to which I have added my name. In the debate on Second Reading we made it clear that we on this Bench preferred the view that my noble friend Lord Selkirk has just indicated. We thought that a much wider discretion should be given to the Lord Advocate, and we were sorry that in recent months the Government had apparently changed their official attitude on this matter and had decided instead to extend the mandatory inquiries to cover all employment, and indeed occupations, rather than just industrial 357 employment, as at present. In that debate my noble friend Lord Selkirk pointed out that there could be ridiculous situations where a road accident occurred and it was difficult to prove whether or not a person was engaged in his employment if it involved driving a car. Indeed, the whole issue might depend on whether there were golf clubs in the car and what his plans were; and this seemed quite unnecessary. More to the point, it did not seem to be what the Government themselves intended, because quite clearly they were more concerned that these should be fatal accidents in factories or at work in other, similar places which were not covered by inquiries under other legislation; and even, indeed, ones that were covered by legislation, because these fatal accident inquiries are to be mandatory in those circumstances.
I hope that since the Committee stage the noble Lord, Lord Kirkhill, has been able to consider this question, particularly of road accidents, and the fact that the term "employment and occupation" could raise difficulties where deaths occur a long way from a person's place of employment. If the noble Lord cannot accept this Amendment, I trust that he will be able to make a Government change at a later stage. I am glad to see that the noble Lord has put down Amendment No. 3, which appears to meet a particular point which I made at the Committee stage, but we shall be coming to that later.
§ Lord WILSON of LANGSIDE
My Lords, in supporting this Amendment may I remind your Lordships briefly of the consequences which will follow if this clause is enacted unamended. Before doing so, I should declare my interest in that the matter falls within the jurisdiction of the sheriff court of Scotland, and I am, for my sins, the head of one of the six sheriffdoms into which Scotland is divided. If this clause is passed unamended the consequences will be, first of all, that there will be a number of anomalies of the nature of those which were spelt out in Committee by the noble Earl, Lord Selkirk. It is bad laws that create anomalies. Good laws may not save us from perdition, any more than did those of Justinian and the Roman Empire, but bad laws certainly tend to lead us on in the opposite direction.
358 The second consequence—it is a more practical one—is that in intercourse in which a major existing problem now is that of delay, there will be injected some additional work which is unnecessary and which according to the Committee which examined this matter "serves no useful purpose". The third consequence which humbly appears to me to be undesirable is that the clause unamended will result in the relatives of deceased persons being subjected unnecessarily to the distress of a formal judicial inquiry, whether or not these relatives want the inquiry. In the light of these three factors, I find it very difficult to understand why the Government should resist so stubbornly the suggestion that the Bill, so far as Clause I is concerned, should be amended.
§ Baroness SUMMERSKILL
My Lords, may I ask the noble Lord a question? I have bothered him about this before. Each time he mentions this it pains me. How is it possible for the relatives of a man who has been killed in the kind of circumstances we know about to have such knowledge of the conditions existing that they will be distressed? He gives that as an argument as to why this inquiry should not take place. These people may be distressed, and I am sorry if they arc. But, surely, they are not qualified to pronounce on these things!
§ Lord WILSON of LANGSIDE
My Lords, they are, in fact, distressed. It was the Grant Committee who said that it was unnecessary so to distress them.
§ Lord LEATHERLAND
My Lords, those who are not Scots and not lawyers may be slightly mystified about the relative merits of the Bill as it stands and the Amendment as suggested by the noble Earl, Lord Selkirk. The Bill as it stands says that there shall be an inquiry if an employee is killed in the course of his employment. The Amendment suggests that the inquiry should be held only if death takes place or an accident takes place at his place of employment. What we really want is a definition of" place of employment". Let us assume that instead of embarking on a career of journalism I had, in my younger days, decided on the honourable estate of a steamroller driver. I went in the morning to the depot where the steamroller was stored and attempted to drive it out 359 of the depot. Unfortunately, I drove it into a wall and killed myself. Clearly that accident would have taken place at the place of my employment in addition to being in the course of my employment. Let us assume that, having safely circumnavigated the depot yard and having driven through the gate, I had driven the steamroller, in the course of my employment, 10 miles down the road where unfortunately something happened. I got out and attempted to remedy the mishap. The steamroller started and killed me. That was in the course of my employment but not in the place of my employment, unless we have a definition of the term "place of employment" which indicates a place of my employment including the place 10 miles down the road where I was attending to the steamroller. To summarise what I have said, we want to know the meaning of the words "at the place of employment".
§ Lord KIRKHILL
My Lords, I have already explained both at Second Reading and in Committee why the Government consider the scope of mandatory inquiries under this Bill is correct. But before discussing this Amendment in detail I think it might be helpful to deal with two matters raised in Committee last week by the noble Earl. The first matter was the question of whether the words "self-employed person engaged in his occupation" included a housewife. The Government are satisfied that the term "self-employed persons" means persons engaged in gainful employment on their own behalf and would not therefore include persons such as housewives who offer their services on a noncommercial basis. I am sure that that will be disputed by many!
The second matter was the more general point that the mandatory provisions of the Bill led to many anomalous cases. For example, an inquiry would need to be held into the death of a teacher at a school but not into the death of a pupil; an inquiry would be required to be held into the death of a person driving for business reasons but not into the death of a person driving for pleasure. It seems inevitable that wherever the line is drawn between circumstances giving rise to an inquiry and circumstances not giving rise to an inquiry there 360 will be some anomalies. After giving this a great deal of consideration, the Government have come to the conclusion that to draw the line to include all people in the course of their employment was more logical than any other division and would produce fewer anomalies.
My Lords, I should like to deal now with the Amendment before the House. I would point out that the Amendment as drafted does not, in the Government view, achieve its apparent purpose if this is to cut out deaths occurring while travelling from place to place and, in particular, deaths resulting from road traffic accidents. I should like, first, to make it plain that, in the Government's opinion, the terms of the Bill at present referring to deaths" in the course of his employment "do not cover accidents occurring during the normal journey between home and work. In this respect the Amendment makes no difference to the present situation. It can only affect journeys made in the course of the deceased's work. I think there is a question to be posed and it is this. What is the "place of employment"? Indeed, this is the very question which my noble friend Lord Leatherland has just put. In the case of the normal factory worker or office worker, this is no doubt quite clear. It is the factory or the office premises.
But what of the worker whose work is by its nature peripatetic? It could hardly be disputed that the place of employment of a sailor is his ship, wherever it is. Would it not be fair to say, also, that a lorry driver's place of employment is where his lorry is, a bus driver's, where his bus is, a taxi driver's, where his taxi is and a baker's van driver where his van is, and so on? In the context of this Bill the place of employment can only mean the place of actual work and not merely the administrative headquarters. I am already into the depths of road traffic accidents which the noble Earl, Lord Selkirk, considers inappropriate to include in this Bill. I rest on that point.
My Lords, before turning to an aspect of the Amendment which appears to be defective, I have already reiterated why the Government clearly must stand firm on Clause 1of the Bill. The noble Lord, Lord Campbell of Croy, made mention of the extension of the mandatory inquiries under the Bill and I would re-remind him, as I would remind the noble 361 Lord, Lord Wilson of Lang side, that the Government had extensive consultations both with the STUC and the Law Society of Scotland. Although, in the end, the Law Society of Scotland withdrew its objection to the Grant Committee recommendation, the STUC continued to manifest objection and the Government have included that substantial objection—for the reasons I have already explained at Second Reading and at Committee stage —in the Bill itself.
In another respect the Amendment appears to be defective. The present wording of the Bill confines mandatory inquiries to deaths in the course of employment. The Amendment refers to deaths "at his place of employment", but does not specify that they must be in the course of work. Thus if the deceased was at the place of employment for quite extraneous reasons his death would occasion an inquiry.
A more general criticism of the Amendment is the lack of definition of the concept of the "place of employment". In the innumerable different circumstances in which work is done, this concept is capable of extremely variable interpretation. For instance, if someone is employed to repair a road, is his place of employment the place where he is based, the place where he is working at any time, or the whole length of the road? Is a solicitor's place of employment just his office, or does it include the sheriff court, any place where he visits a client and, if he takes work home, his own house? The term cannot simply be left undefined, as it is here, but to devise a universally applicable and fair definition would be a formidable task. I hope I have said enough to convince you that the introduction of this concept of the place of employment does nothing to simplify matters and could indeed lead to considerable uncertainty, anomalies and unfairness. Accordingly, I ask your Lordships not to accept this Amendment.
§ Lord WILSON of LANGSIDE
My Lords, before the noble Lord sits down, I wonder if he would say whether he, together with his right honourable and learned friend, would consider the possibility of having joint discussions on this small matter between those involved in the day-to-day running of the courts and the STUC, whose representations I under- 362 stand led the Government to draft Clause 1 as it is presently drafted?
The Earl of SELKIRK
My Lords, if I may say a word to the noble Lord, Lord Leatherland, of course if you are employed to drive a steam-roller and you are going from one part of a road to another to do your job, that is the place of your employment. I never had any doubt that a lorry driver was in his place of employment. But something that the noble Lord, Lord Kirkhill, brought out as clear as crystal is the need for discretion in deciding whether or not there should be inquiries. He spoke about defining precisely when these inquiries should take place as being a formidable task. That is our whole case. The Lord Advocate has plenty of power to carry out his discretionary task. I have no doubt whatever this is the correct way of doing it. I do not think my phrase is any vaguer than the words "in the course of employment". There is, as the noble Lord knows well, an enormous range of legal decisions on the subject of what is in the course of employment. He did not attempt to define what was in the course of employment. I do not blame him for that; all sorts of interpretations could be put on it.
I am sorry that the noble Lord cannot accept Lord Wilson of Langside's suggestion for discussion; it is worth seeing whether greater precision could be reached. The only point of my Amendment is to get greater precision. I am not arguing the basis of it. I think the words "in the course of employment" are capable of wide interpretation. I accept the case of people who are employed to drive steam-rollers or lorries. I would exclude road accidents altogether; they should be excluded. I should be grateful if the noble Lord would consider this. Will the noble Lord give any thought to considering something of this sort?
§ Lord KIRKHILL
My Lords, as those who have been taking part in this debate—both at this stage and earlier stages—will know, this is a Bill emanating from the Lord Advocate's Department of the Scottish Office. I cannot give the type of assurance asked of me today. The 363 noble Earl's comment will be in Hansard and no doubt others will consider the point which he has made. I reiterate that extensive consultations have taken place with the STUC, and the weight of their argument—which I have already described at some length and in some detail —was the consideration which prompted the Government to seek the extension of the mandatory inquiry.
The Earl of SELKIRK
My Lords, I can only accept what the noble Lord has said, that inquiries have taken place. He says what we have discussed will appear in Hansardand that it may be looked at. I do not think that this is a matter of sufficient significance to ask the House to divide on it. I am bound to say that both phrases have their dubieties. I admit this is true. I was trying to get a more precise definition. If the noble Lord says that we have these views and that we are anxious to get a better definition, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 3.26 p.m.
§ Lord CAMPBELL of CROY moved Amendment No. 2:
Page 2, line 4, at end insert—
("( ) In any case arising from section 9 of this Act, the Lord Advocate shall direct which procurator fiscal and which sheriff shall be the responsible authorities for the purposes of the foregoing subsection").
The noble Lord said: My Lords, this Amendment has been put down in order that the Government may reply on a matter that I raised at the Committee stage to which the noble Lord, Lord Kirkhill, then said he could not reply without notice. When Clause 9 becomes effective and this fatal accident procedure is extended to the Continental Shelf, which authorities will be the responsible authorities under the Bill? At the top of page 2 the Bill says:
…the procurator fiscal for the district with which the circumstances of the death appear to be most closely connected shall investigate…".
Then he is due to make a report to the sheriff. The question is: which procurator fiscal and which sheriff should be brought in for accidents in different areas of the Continental Shelf? This may be 200 miles from land, over a hundred miles from the Shetland Islands or round from the West coast.
§ There are two points on this matter. The first is geographical, and the noble Lord said he would look into it as he could not answer off the cuff at the Committee stage. Secondly, there is the matter of the administrative suitability or convenience. Should it be something which should be judged in the circumstances at the time? That is the sense of my Amendment which leaves it to the Lord Advocate to decide on the matter. It may well be difficult to lay this down beforehand. May I draw attention to the fact that only the day before yesterday another diver was killed in the North Sea. When I was speaking exactly a week ago at the Committee stage of the Bill, a diver had died a day before. Those two divers have lost their lives in off-shore operations within the space of six days. The deaths taking place now may never be investigated by this fatal accident inquiry procedure, although they must be accidents of the kind for which this legislation is most suitable. This is a new industry where new tasks are being carried out and inquiries could well help to bring in quickly safety precautions which could prevent other accidents. So Clause 9 should he considered with Clause 1. I agree with my noble friend Lord Selkirk when he says that Clause 9 is probably the most important part of this Bill inasmuch as it extends this procedure to the Continental Shelf.
§ If the noble Lord cannot reply to the following point now, I hope he will be able to do so later when we reach the Amendment concerning. Clause 9. What kind of inquiry is there now? According to yesterday's Press, a Department of Energy diving inspector was immediately brought into the picture over the sudden surfacing—due no doubt to some mechanical error—of the diving bell which caused the death the day before yesterday. After this Bill has been enacted, which I presume will be in the early summer, will the Lord Advocate be able to institute inquiries into the deaths which took place in January this year, or the deaths which unfortunately took place in the North Sea last year? Under subsection (2) of Clause 1, this Bill is to go back three years prior to the coming into effect of the Act. Under Clause 10 the Lord Advocate is able to name the date when the Act will come into force. One presumes that will be soon. Will it be possible, when this Bill is enacted, for 365 the Lord Advocate to have inquiries made into accidents in the North Sea over the Continental Shelf which have taken place in a period prior to that? It is not clear now how these provisions of the Bill will apply to Clause 9 and Continental Shelf accidents. It is clear how they apply to other fatal accidents.
§ The divers are doing a very important job which is essential for some of the offshore operations. In previous debates in your Lordships' House I think we have all agreed that it is very important for us to win as much oil as we can in the next five years. After that we shall be going in for depletion controls, but I hope that during the consideration of these Amendments, either now or under Clause 9, the Government will provide information on this activity, because diving in waters above the Continental Shelf seems to be more in need of fatal accident inquiry procedure than any other.
§ Lord KIRKHILL
May I first associate the Government with the remarks made by the noble Lord, Lord Campbell of Croy, about the very real and pressing need for an established form of inquiry, over these horrendous tragedies now occurring with ever-increasing frequency in these Northern seas. I will certainly take the opportunity of replying in detail to the points made by the noble Lord later in this debate.
Turning to the Amendment, I would say initially—as I seem to be saying each time so far this afternoon—that the Government are unable to accept this Amendment since they consider it to be clearly inappropriate for the Lord Advocate, a Government Minister, to issue directions to the Judiciary regarding the exercise of their jurisdiction. Since the introduction of this Bill we have received strong representations from sheriffs, sheriffs principal and others on the need to preserve the independence of sheriffs holding these inquiries from any control by the Government. The proposed Amendment would appear to run counter to this principle.
The situation under the Bill, as at present drafted, where a death has occurred on the Continental Shelf in circumstances giving rise to an inquiry, is that in the first place the procurator fiscal will have 366 to decide whether he is the fiscal for the district most closely connected with the circumstances of the death, and is therefore required to investigate the death and apply for an inquiry. In case of a death, the Crown Office and ultimately the Lord Advocate will decide which fiscal should do this. It will then be up to the fiscal to decide to which sheriff he should apply. When the procurator fiscal lodges his application with the sheriff, it is up to the sheriff to decide whether he is the sheriff of the sheriffdom with which the circumstances of the death appear to be most closely connected and, accordingly, has jurisdiction to entertain the application.
In practice, it is expected that there will be little difficulty in determining with which sheriffdom and procurator fiscal the circumstances of the death are most closely connected. In the case of deaths on or connected with oil installations, the clearest link will normally be the port from which the installation is serviced. In the case of supply vessels, the clearest link will normally be with the port from which the vessel operates. There are only a few ports involved, notably Aberdeen, Lerwick, Peterhead and Dundee. As regards identifying the appropriate sheriffdom, the task will be made easier by the fact that Scotland is now divided into only six sheriffdoms, with the sheriffdom of Grampian, Highland and Islands occupying the Northern half of the country. The Government believe that the provisions for division of responsibility among procurator fiscal districts and sheriffdoms are the most reasonable that can be devised, and they are confident that sheriffs and procurators fiscal will have little difficulty in operating them. For these reasons, the Government consider that the proposed Amendment is contrary to constitutional principles, and I would ask your Lordships not to accept it.
The Earl of SELKIRK
Would it not be sensible to let the public know which procurator fiscal district they were in or which rig was in and which sheriff was in charge? I imagine there may be other applications to the sheriffs in addition to those made under this Bill. Instead of keeping this a sort of "unknown secret" in the Lord Advocate's Department, the Crown Office, and so on, would it not be more sensible to have this information made available?
§ Lord HOY
If I may intervene briefly, I do not quite understand what the noble Earl, Lord Selkirk, meant by "an unknown secret". I do not know how you define that term, but I would have thought that in this case if in fact sheriffdoms have been divided into six, with procurator fiscals applied to each of them, obviously the Scottish people are not quite so ill-informed as not to know what is happening. I think that both the noble Earl and the noble Lord, Lord Campbell of Croy, will remember from experience that when inquiries are to be held they are very suitably advertised in the Scottish Press. People then know what is happening, not only from a legal point of view but from a public point of view. So there is nothing secretive about it and I should have thought that, with these new arrangements which have been made, the position today is a great improvement on anything that happened in the past. From that point of view, I think people will be very well satisfied.
§ Lord KIRKHILL
On behalf of the Government, I hesitate to say that we might again consult with sheriffs or sheriffs principal in view of the minor lambasting which took place at an earlier stage on the basis that our relationship and consultation had not been as thorough or effective as it might have been. Nevertheless, I think the noble Earl has raised a point which is worthy of consideration, and I will take note of it.
§ Lord LEE of NEWTON
Is there not close liaison with other Departments about this? I recall the first accident that we had in the North Sea, which did not occur opposite a Scottish port. That accident was concerned with the Sea Gem, which went down with the loss of many lives, and it occurred when we were searching for gas. It would not be the case, therefore, that legislation which was purely appropriate for Scotland would cover emergencies of that type. Diving and drilling for gas is just as hazardous as drilling for oil. It is our hope and belief that we shall find both gas and oil also in the Celtic Sea and in the Irish Sea. What I am afraid of is that if we base all our legislation on proximity to the Scottish coasts, it may well be that a great deal of further legislation will be necessary later to cover operations based on other stretches of the coasts around 368 this island. I would ask my noble friends to remember, first, that these great risks and the very arduous jobs which are necessary have brought great suffering to people who are not working near the Scottish coasts, and, secondly, that there is the possibility in the future of the extension of our operations to the English and Welsh coasts. When considering legislation of this type, this should be taken into consideration.
Lord CAMPBELL of CROY
As I indicated earlier, I moved this Amendment as a probing Amendment, as the only way to enable the Government to explain how they expected the Bill to operate as regards Clause 9 and the authorities who would be concerned with an inquiry; namely, a procurator fiscal and a sheriff. I am grateful to the noble Lord, Lord Kirkhili, for explaining how the Government see the operation of this clause. It appears that it will be the procurator fiscal related to the port rather than to the nearest land where the accident has taken place. That seems to be the interpretation of his remarks, and that is certainly sensible. As I pointed out in my opening remarks, it is a matter of weighing administrative suitability and convenience against geography. The noble Lord said that later, on my Amendment to Clause 9, he would tell us about the present system—if there is a system —for looking into accidents concerning divers in the North Sea, and whether Department of Energy inspectors have any rights at present to undertake inquiries.
The noble Lord, Lord Lee, raised the question of what happens in the waters over the Continental Shelf, off the shores of England and Wales. I would say only—as I have said two or three times during the passage of this Bill—that the system when there is a death in Scotland is completely different from that in England. There are no inquests and no coroners in Scotland, and that is one of the reasons why there is special fatal accident legislation of this kind. There is certainly no intention on my part to overlook the gas operations that have taken place and have led the way in the Southern basin of the North Sea, or the operations that are going on all around our coasts. But with this Bill we are taking an opportunity of reforming the 369 fatal accident procedure which applies only to Scotland—where, as I said, there are no inquests or coroners and the system is quite different—and of extending it to the Continental Shelf around the shores of Scotland.
The noble Lord, Lord Kirkhill, has explained how he sees the procurator fiscal and the sheriff being brought in, and he does not think that the Lord Advocate should be left to indicate which one. But at one point he mentioned consultation with the Crown Office, so the good offices of the Lord Advocate would clearly be used—because the Crown Office is the Lord Advocate's office in Scotland—and that seems to me a sensible system. My Lords, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 3.42 p.m.
§ Lord KIRKHILL moved Amendment No. 3:
§ Page 2, line 6, after ("Act") insert ("(other than such a death in a case where criminal proceedings have been concluded against any person in respect of the death or any accident from which the death resulted, and the Lord Advocate is satisfied that the circumstances of the death have been sufficiently established in the course of such proceedings)").
§ The noble Lord said: My Lords, the purpose of this Amendment is to make it unnecessary to hold a public inquiry in cases where there has already been a criminal prosecution connected with the death, and in the course of this prosecution the facts of the death have been clearly ascertained. The Amendment makes it possible for the Lord Advocate to satisfy himself that these facts have been fully brought out and to instruct that a public inquiry is unnecessary. This power to dispense with an inquiry applies to all cases where an inquiry is mandatory under Clause 1(1)(a)—to deaths resulting from fatal accidents at work and to deaths of people in legal custody.
§ The Government have considered the need for such an Amendment in response to the views expressed by the noble Lord, Lord Campbell of Croy, when this Bill was in Committee, and in response also to views expressed to us in recent consultations. The Government have concluded that a dispensing power is desirable. Where a death gives rise both to a public inquiry and to criminal proceedings, both are conducted by the procura- 370 tor fiscal who will normally postpone the inquiry till the criminal proceedings are over. In these circumstances, the inquiry is frequently merely a re-run of evidence led in the criminal proceedings and reaches the same conclusion regarding the death. It seems pointless duplication to have an inquiry when the facts have already been ascertained in a public judicial process.
§ It therefore seems appropriate to give the Lord Advocate a discretion whether or not to dispense with an inquiry in this situation, as in no two cases will the circumstances be exactly the same. I would stress that an inquiry will automatically be held in every case unless the Lord Advocate positively rules that it is unnecessary. The facts must have been sufficiently established in criminal proceedings. This implies that they must have been ascertained in public since criminal proceedings are normally conducted in public. The criminal proceedings may have been against any person—not necessarily the person responsible for the death—and they may have arisen out of the death itself (for example, culpable homicide) or out of the accident which caused it (for example, careless driving). The outcome of the criminal proceedings is irrelevant; what matters is that the facts of the death are established in them. I hope your Lordships will agree that this is a sensible Amendment which should be supported. I should like to express my personal gratitude to those who pointed out to me the need for such an Amendment. My Lords, I beg to move.
Lord CAMPBELL of CROY
My Lords, I must thank the noble Lord, Lord Kirkhill, because by this Amendment he has carried out my suggestion as to the least that should be done to avoid duplication. This Amendment is exactly what I suggested, so there will be no need to have a fatal accident inquiry when criminal proceedings have already gone over the ground. The Amendment also gives the Lord Advocate discretion to wait until he sees whether criminal proceedings are being started, or, if they have been started, to wait to see what happens. So I have no objection to the word "concluded", because it means that, unless there was a special need for one, a Lord Advocate using his discretion would clearly not call for a fatal accident 371 inquiry when he knew that there was a possibility of criminal proceedings being started, or that they had been started. So I am grateful to the noble Lord for having met this point. The Amendment is a definite improvement to the Bill, and I would recommend my noble friends to support it.
§ On Question, Amendment agreed to.