HL Deb 20 January 1976 vol 367 cc376-93

Report stage resumed.

4.1 p.m.

Lord KIRKHILL moved Amendment No. 4:

Page 2, line 28, after ("taken") insert ("(i)")

The noble Lord said: My Lords, in moving this Amendment I should like at the same time to speak to the following Amendment, as I think this would be a convenience to the whole House. This Amendment amends Clause 1(4), to provide that a person who is being taken from a penal institution, or from a police station, police cell or similar place where he has been detained, is a person in legal custody for the purposes of this Bill. This supplements the provision already contained in Clause 1(4)(c) that a person being taken to these places is considered to be a person in legal custody.

The noble Earl, Lord Selkirk. indicated in Committee last week that he thought such an Amendment necessary. He cited a prisoner being taken to a hospital or to a court as a case which might not at present fall within the terms of Clause 1(4). The Government have considered this point and have come to the conclusion that while the case of a person taken from a penal institution to a hospital or a court is probably covered by the existing wording of Clause 1(4), being a person "subject to detention", a person being taken from a police station, police cell or similar place to a hospital or court might not in certain circumstances be covered. The Government have therefore introduced this Amendment to bridge the gap and I commend it to your Lordships. I also take the opportunity of thanking the noble Earl for bringing this matter to our notice. I beg to move.

The Earl of SELKIRK

My Lords, I thank the noble Lord. This is a very small point and I hope he will not mind my saying that my Amendment was much shorter and, I thought, was adequate. However, the Government have tabled a very much more elaborate Amendment, and I have no objection, except to say this. If the noble Lord will look at the words in Amendment No. 5: (ii) from any such place in which immedately before such taking he was detained", surely all that is needed is in such place in which the person was being detained". I think the word "taking" is possibly a "Scottishism", but not a very happy one. I wonder whether the noble Lord will be good enough to look at this point.


My Lords, having been totally submerged by the considerable and expert legalism of Government draftsmen over these past few days I can give the noble Earl no assurance at all that I will consider that point.

On Question, Amendment agreed to.


My Lords, I beg to move Amendment No. 5, which I spoke to when moving the previous Amendment.

Amendment moved—

Page 2, line 30, at end insert— ("or (ii) from any such place in which immediately before such taking he was detained.").—(Lord Kirkhill.)

On Question, Amendment agreed to.

Clause 6 [Sheriff's determination etc.]:

4.6 p.m.

Lord CAMPBELL of CROY moved Amendment No. 6: Page 5, line 3, leave out from beginning to ("and") in line 8.

The noble Lord said: My Lords, I beg to move Amendment No. 6. At the Committee stage I asked the Government about the consequences of these two paragraphs which require the sheriff to include certain things in his report, and this Amendment seeks to leave out these two paragraphs. It is of course a probing Amendment in order to give the Government the opportunity now to tell us, because they were not able to give us a full reply at the Committee stage.

The point which I raised was that although the sheriff is not required to find fault and allocate blame to any person or persons, in the course of carrying out the requirements of these two paragraphs he may inevitably do so in certain cases. Does the noble Lord agree that when determining the factors in paragraphs (c) and (d), as he is now obliged to, the sheriff may find himself blaming some individual or a number of persons? There would then be a situation in which the person blamed might well disagree. In some cases, of course, the sheriff's findings may be followed by criminal proceedings, when no doubt the matter will be dealt with; but if nothing further happens and if no criminal proceedings arc started, what action is open to the private individual who has been blamed in this public report but who disagrees and wishes to clear his name?

I am inquiring for information what the Government's view is here because it has always been a sensitive point in the fatal accident procedure in Scotland. Now the Government are changing that procedure. The sheriff is required to provide explanation in accordance with these paragraphs, which may inevitably mean finding fault. How do the Government visualise such a situation being resolved? I beg to move.


My Lords, the effect of this Amendment is to delete from the list of matters on which the sheriff may make findings the following headings: (c) the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided; (d) the defects, if any, in any system of working which contributed to the death or any accident resulting in the death. This would leave the inquiry concerned solely with ascertaining the place and time of the death and of any accident resulting in the death, the causes of the death and any such accident, and any other facts relevant to the circumstances of the death. In practice, this would mean that inquiries would be confined entirely to the bare facts of the death and little or no indication would be given of means whereby the death might have been avoided.

This Amendment is not therefore acceptable to the Government. It would in our view deprive the system of public inquiries of a great part of its value. It is true that the essential purpose of these inquiries is finding facts, not making judgments; but the facts are being ascertained for a specific purpose, namely, to enable those concerned and the relevant authorities to find out what went wrong and to take steps to avoid any repetition. It is highly desirable that where the death occurred as a result of the omission of a reasonable precaution or a defect in the system of working the findings should highlight this fact.

I would stress that these provisions are no innovation. The matters on which the sheriff is to make findings are exactly those on which the jury has to decide under the Fatal Accidents Inquiry (Scotand) Act 1895, with one exception, that the sheriff is not to be required, as the jury is at present, to make a finding of fault where appropriate against a particular person. It has long been felt that the requirement to make a finding of fault is inappropriate in a fatal accident inquiry which is in essence a fact-finding inquiry. Such findings have in practice been rare.

The fact that there is no longer to be a requirement to find fault makes it all the more necessary that the findings should, where appropriate, include a finding that a reasonable precaution has not been taken, or there has been a defect in the system of work. It is true that in making a finding under head (c) or (d) the sheriff is being asked not just to find out facts, but to exercise his judgment to interpret them. He is, however, well qualified to do this, and no sheriff will make a finding that a precaution has been omitted or that the system of work is defective without being fully satisfied that this is the case.

It is true that a finding by the sheriff under heading (c) or (d) may at times clearly lead to the inference that a particular person was at fault. It would not necessarily lead to such an inference in every ease. It is also the case that a finding under heading (b), that the cause of the death was the act or omission of a particular person, may clearly lead to an inference that that person was at fault. Such inferences will inevitably be made; but to forbid the sheriff to make any finding that might lead to such an inference would often frustrate the whole purpose of the inquiry. I think we must trust the judgment of sheriffs in this. A sheriff is not going to make a finding from which fault may be inferred unless there is very good reason for doing so. Sheriffs are well aware that a civil or criminal action may follow an inquiry, and that such action should not be prejudiced. The abolition of the requirement to make an express finding of fault where appropriate makes it much less likely than under the existing legislation that an inquiry will prejudice the outcome of any subsequent action. I would stress that where, apart from the inquiry, there are civil or criminal proceedings arising from the death, any fault must be fully established by evidence. Under this Bill, as under the existing legislation, it is not possible for the findings in the inquiry to be used in evidence as a shortcut to establishing fault in civil or criminal proceedings.

I would now deal with another point about which the noble Lord, Lord Campbell of Croy, expressed concern, namely, the making of recommendations by the sheriff. There was no express power for the jury to make recommendations under the existing legislation, and there is no express power of the sheriff to do so under this Bill. In the past, recommendations have seldom been made. There is nothing in the Bill which would prevent a sheriff from making recommendations, but it is unlikely sheriffs will generally do so. The only recommendations that sheriffs are likely to make under the Bill arc those which are relevant to findings under heads (c) and (d), and even there the probability is that the sheriff will seldom make recommendations.

The Government think that in general it is desirable that sheriffs be sparing in making recommendations, and that the Bill is right in not giving an express power to make them. The sheriff is the appropriate person to find out and interpret the facts surrounding the death, but he is not necessarily the best judge of what action should be taken in the light of these facts. The outcome of the inquiry will be brought to the attention of the relevant safety authorities and it will be for them to decide if action is necessary. It is not desirable that the sheriff should appear to speak with authority in fields where he has no particular expertise. In any case, it is unlikely sheriffs would want to do so. I hope that this explanation will satisfy the noble Lord, Lord Campbell of Croy, that the Government have given a lot of consideration to the points regarding which he has expressed concern, and that the provisions of the Bill regarding findings will work out in practice. I can assure him the Government will fully consider any further points which he feels require clarification, and would hope it will be possible for him to withdraw the Amendment.

Apart from the subject matter of this Amendment, it would appear appropriate at this point to reply to two questions relating to procedure at inquiries which were raised by the noble Earl, Lord Selkirk, in Committee but to which I did not at that time reply as I had to seek further information. The first of those questions was: Does the deletion from the Bill of Clause 5(3) alter in any way the manner in which evidence can be led in a judicial case? The terms of Clause 5(3) would have rendered transcripts of evidence and reports inadmissable for all purposes in judicial proceedings arising out of the death. They could therefore not have been used in such judicial proceedings as evidence, in accordance with the Evidence (Scotland) Act 1852, that a witness had made a different statement at the inquiry. The provision of Clause 5(3) would prevail over the 1852 Act. The deletion of Clause 5(3) restores the position under the existing law of evidence; namely, that transcripts of evidence and reports of inquiries would normally not be admissible in judicial proceedings, but transcripts might in certain circumstances be admissible in such proceedings as evidence that a witness had made a different statement at the inquiry.

The second question was: Is it compulsory under this Bill for a record in short- hand to be taken? It is not compulsory. Clause 4(7) provides that subject to rules made under Clause 7 the procedure at the inquiry shall be as nearly as possible that applicable in an ordinary civil case brought before the sheriff sitting alone. One effect of this provision is that Rule 65 of the First Schedule to the Sheriff Courts (Scotland) Act 1907 will apply. This authorises the sheriff either to take down notes of evidence himself or to nominate a clerk or shorthand writer to do so. It is thus left to the judgment of the sheriff whether a shorthand writer is necessary. I hope that the noble Earl, Lord Selkirk, will consider these replies helpful.


My Lords, I think the noble Lord, Lord Kirkhill, realises, as I indicated in my opening remarks, that I am not proposing to press this Amendment. Indeed, I had no intention that these two paragraphs should he left out, but as this is Report stage there would have been no other opportunity for the Government to give their promised further explanation on these points as to how they see the Bill in operation unless there had been an amendment of this kind. I am glad the noble Lord has taken the opportunity of replying to the two points raised in Committee by the noble Earl, Lord Selkirk, also on this clause.

The noble Lord, Lord Kirkhill, confirmed that there is no requirement for a sheriff, under this Bill, to find fault. That is what we understood to be the situation. But the noble Lord also confirmed my interpretation that a finding could in certain circumstances lead to the inference of fault attaching to particular persons in carrying out the requirements of paragraphs (c) and (d), and again I have no objection to that. The noble Lord pointed out how necessary it was that paragaphs (c) and (d) should be carried out and observed in the sheriff's report. I do not object to this at all. I raised the question of the remedy open to persons who would be blamed in a public report, who disagreed. What action is open to them? I do not think the noble Lord has replied to that point. I will give way to Lord Kirkhill in a minute, but it may well he they should take legal advice, which no doubt is the short answer which the legal profession would give. I would be very glad to give way to the noble Lord if he has other information.


My Lords, I stressed that where, apart from the inquiry, there are civil or criminal proceedings arising from the death, any fault must be fully established by evidence.


My Lords, the noble Lord said that if criminal proceedings followed, then the facts would have to be substantiated aeain—and we know that because we discussed this at an earlier stage in the Bill. But the case I raised was where there are no criminal proceedings and no further action is being taken. There is an unsatisfactory situation where there is a report, no doubt in the Press and elsewhere, attaching blame to a person, who himself wishes to contest the report's findings in this respect because it affects him as an individual.

I was inquiring how the Government saw the situation developing there—no criminal proceedings, the situation just left. The answer may well be that that is a situation where the member of the public has to ask for legal advice; there are various courses open, and it is impossible to generalise. I would draw attention to this because I think this is the difficult part. I agree with what the noble Lord said, that the sheriff is not obliged to find fault and no doubt he will not wish to find fault unless he is absolutely obliged to under paragraphs (c) and (d). If he then does find fault attaching to an individual, and if there are no further proceedings, criminal or otherwise, then it is an unsatisfactory situation because that individual is left with this blame, as he may think, something on which he ought to be able to clear his name. We should like the Government to tell us what remedy is open to him. That was the one point the noble Lord did not deal with; he did deal with criminal proceedings.

Then, in addition, the noble Lord has given us a reply about recommendations by the sheriff. I did not raise this point today but I raised it at an earlier stage, and I am grateful to the noble Lord for having made that statement today. I agree that what he has said is satisfactory. I had understood that the sheriff would not be obliged to make recommendations but he would be free to do so if he thought it appropriate. I agree with what the noble Lord has said, that the sheriff ought to be sparing in making recommendations; but there are occasions—perhaps some calamity of a quite new kind—when recommendations of a general or particular nature made by a sheriff after a fatal accident inquiry may be the first indication that something needs to be done to prevent other accidents. I agree entirely with what the noble Lord said on that point. I do not think any other noble Lord wished to speak, and so I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 7 [Rules]:

4.23 p.m.

The Earl of SELKIRK moved Amendment No. 7: Page 6,line 21, leave out ("to solicitors,").

The noble Earl said: My Lords, under Clause 7 the Lord Advocate is entitled to make rules in respect of judicial inquiries held by sheriffs. I raised at Committee stage the question whether it was desirable that he should make rules regarding fees paid to solicitors. I raise this question not because the fees of solicitors do not require controlling; the question is really whether the Lord Advocate is the appropriate person in the circumstances to do so. Already the fees in judicial proceedings are controlled, and, I think I am right in saying, have been controlled for nearly 70 years by the Lord President of the Court of Session. It seems to me it would be very much better for his control to extend to the sheriffial inquiries, which, after all, are judicial inquiries. Clause 4(7) says that the rules …shall be as nearly as possible those applicable in an ordinary civil cause brought before the sheriff sitting alone". In other words, they come very close to the ordinary sheriff inquiry. It would seem, therefore, natural that the Lord President should also control the fees of solicitors at this point. They are also, of course, controlled by a table laid down by the Law Society of Scotland, and in certain respects they are controlled by the Price Commission. I am wondering whether the Lord Advocate does fix fees in any other field, or whether this is entirely a new field as far as he is concerned. It seems to me that as fees are fixed in very similar circumstances by the Lord President it would be better for the Lord President to include this in the existing powers which he already has. I beg to move.


My Lords, at Committee stage I gave the noble Earl an assurance that the Government would consider this matter further. This matter is somewhat complicated and before deciding on it my right honourable and learned friend would like to have discussions with, among others, the President of the Law Society. These discussions will be undertaken as a matter of urgency. In view of this undertaking, I would hope that the noble Earl would agree to withdraw this Amendment.

The Earl of SELKIRK

My Lords, I am very grateful to the noble Lord, Lord Kirkhill, for his reply. I am very happy in those circumstances to beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 9 [Application to continental shelf]

Lord CAMPBELL of CROY moved Amendment No. 8:

Page 7, line 12, at end insert— ("(2) Where there is doubt as to whether a fatal accident has occurred in the circumstances set out in paragraph (a) of the foregoing subsection or has occurred in another maritime connection, the Lord Advocate shall decide whether the provisions of this Act shall apply.")

The noble Lord said: My Lords, this brings us to Clause 9 and the proposed extension of the fatal accident procedure to the continental shelf. I raised, at earlier stages, the question of whether an accident would be an ordinary maritime accident, concerning ordinary seagoing vessels, or whether it would be considered to be an accident connected with work on the continental shelf, the extraction of oil and gas. The noble Lord, Lord Kirkhill, said that he would be glad to have notice of these matters, which needed sorting out and that he would give us an explanation at a later stage. Hence, this Amendment. I have suggested that if this is an area where there is doubt and difficulty it might be left to the discretion of the Lord Advocate again. What I am really seek- ing is an explanation from the Government as to who determines whether a fatal accident in waters over the British sector of the continental shelf is in connection with the exploration of the sea bed…or the exploitation of their natural resources"— that is the wording of the Bill as it stands at the moment—or whether it is in the nature of an accident at sea of a kind which we normally know. For example, if a supply boat, which is not very different from other vessels, in fact particularly like a fishing boat, on its way to a rig or platform has a collision with another boat, and a death occurs, will it be dealt with under this legislation or under the existing ordinary maritime legislation? Then, for example, if there is an engine room explosion in a vessel which is fully engaged on work connected with offshore oil and nothing else, an ordinary vessel with an ordinary engine room, and there is a death resulting from the explosion, would it be regarded as a maritime accident and involve perhaps a merchant shipping inquiry or some other inquiry, or would it come under this new legislation because the vessel was totally engaged in supplying rigs and platforms?

It is a matter of the significance of these words "in connection with". I think it should be made clear now who decides this. Provided there is a proper inquiry suitable to the circumstances, I do not believe it matters whether it is under this legislation or other legislation or regulations which will apply. But before the Bill becomes law those who are involved in its application should know how it will fit in with existing maritime legislation in this field.

I gave another example at Committee stage, where a platform for an oil field is being towed. A platform is a huge structure and it is expected to be installed for 15 or more years for operating wells in an oil field. But to reach its destination in some cases it will have to be towed right round the North of Scotland. Suppose it is not yet operating in its intended role over an oil field, but an accident occurs—I would remind the noble Lord that these are going to be very tricky operations—while the platform is on tow; it is in connection with the exploitation of the natural resources of the sea bed. It could be an accident to the tug or some other ordinary vessel connected with the tow. Who is to decide which legislation should apply?

I come also to the question of divers. I mentioned earlier today the tragic toll of lives of divers, with yet another dying the day before yesterday. How closely must the work of a diver be related to offshore oil and gas for him to come under this legislation? Is the position of divers covered now by any system of inquiries? I gave the noble Lord notice that I would be asking this again when I moved Amendment No. 2 earlier today.

If, as I presume, there is little, if any, investigation at present because this legislation and other legislation has not yet been extended to the Continental Shelf, will the Lord Advocate be able to institute an inquiry retrospectively under Clause 1(1)(b) of this Bill? These deaths have occurred in January in the last two weeks and, unfortunately, there were deaths of other divers last year. This Bill is expected to be law by June. With the Lord Advocate being able to state under Clause 10 what should be the date of the entry into force of the Bill, can the clauses be interpreted so as to enable incidents to be taken into account which have occurred within the period of three years stated in the Bill before the entry into force of the Act? In other words, can accidents which are occurring now and which occurred last year be the subject of fatal inquiries later this year if they have not been dealt with by other legislation?

4.33 p.m.


My Lords, this Amendment is not acceptable to the Government. Its effect is to confer on a member of the executive an essentially judicial function—the interpretation of a statutory provision—which properly belongs to the sheriff. The position under the Act as at present drafted is that in the first instance it will be for the procurator fiscal to decide whether the death or accident has occurred in these circumstances and that therefore it is necessary to apply for an inquiry to be held. If he does apply for an inquiry, it will be for the sheriff to make the final decision whether the death or accident has occurred in these circumstances and an inquiry is therefore necessary.

It is in any case likely that the interpretation of the expression, in connection with the exploration of the sea bed or subsoil or the exploitation of their natural resources", will occasion less difficulty of interpretation than the noble Lord, Lord Campbell of Croy, anticipates. The natural interpretation of the expression is, in the Government's view, that it covers all activities on the Continental Shelf consequential on oil operations. Thus it would cover not only deaths occurring on or near fixed installations but also deaths connected with the towing of installations and deaths occurring on supply ships or resulting from a collision between a supply ship and another ship. Thus, some of the difficulties of legal interpretation foreseen by the noble Lord would, in my view, not arise.

Clearly, this interpretation leads to some theoretical overlapping with the inquiry procedures under the Merchant Shipping Acts. May I at this point make reference to the intervention on an earlier clause by my noble friend Lord Lee, and say to him that, as I explain two or three points at this stage and onwards, it might at least explain the terms of remit in Clause 4 so far as this Bill is concerned. There are two procedures under the Merchant Shipping Acts. Where a person dies on board ship in any circumstances there is provision for art inquiry usually held by an official of the Department of Trade. Besides such routine inquiries there may be formal investigations by the sheriff at the instigation of the Department of Trade into loss of ships, damage to ships, or loss of life through accidents to ships.

This problem of overlapping procedures is not new—it occurs under existing fatal accident inquiry legislation in respect of deaths on ships within the three-miles territorial limit—and, as I understand, it has not caused any trouble for the past 80 years. There need therefore be no duplication of inquiries. As regards routine inquiries into deaths, the Merchant Shipping Act 1970, as amended by Schedule 1 to this Bill, provides that where an inquiry under this Bill is held an inquiry under the 1970 Act shall be unnecessary. As regards formal investigations before the sheriff under the 1970 Act, the Secretary of State for Trade has a discretion whether to order such investigation. Where there is to be an inquiry before the sheriff under this Bill, it is unlikely that such an investigation would be thought necessary. Duplication of preliminary investigations can, of course, be avoided by co-operation between the procurator fiscal and the Department of Trade.

I would stress that there is an important difference in scope of jurisdiction between inquiries under this Bill and inquiries under the Merchant Shipping Acts. Inquiries under these Acts can be held into deaths occurring outside territorial waters only where British ships are involved. Under this Bill, however, we are seeking to inquire into deaths occurring on the Continental Shelf in connection with mineral operations whatever the nationality of the vessels or installations concerned. The Government consider this necessary in view of the Government's general responsibility for ensuring the safety of mineral operations on the Continental Shelf and any activities related thereto. It is for this reason that it is necessary to confer the jurisdiction to hold inquiries in fairly wide terms.

To sum up, I would submit that it is for the sheriff, not the Lord Advocate, to interpret the provisions of the Act and determine if the death has occurred in circumstances giving rise to an inquiry. I am advised that the terms of Clause 9 should not give rise to difficult problems of interpretation. The question of the relationship between inquiries under this Bill and those under the Merchant Shipping Acts has been fully looked into and the Government are satisfied that this should not give rise to serious problems. I would therefore ask you not to accept this Amendment. I should like also, at this point, to take the opportunity to reply to queries which were raised in Committee by the noble Earl, Lord Selkirk, and others regarding the appropriateness of the words "or accident" occurring in Clause 9 at page 7, line 1. The Government have considered this point and have come to the conclusion that the present wording of Clause 9 is correct and that there would be no advantage in altering it. Clause 9 is essentially supplementary to Clause 1. Its effect is to extend the meaning of the phrase "a death occurring in Scotland", used in Clause 1(2), to include in appropriate circumstances a death occurring on the relevant part of the Continental Shelf, and likewise to extend the meaning of "an accident occurring in Scotland", used in Clause 1(l)(a)(i) to include in appropriate circumstances an accident occurring on the Continental Shelf. Since the intention of Clause 9 is to extend the meaning of these phrases, it is appropriate that it should reflect the wording of the phrases and use the words "death" and "accident" without qualification.

It would not appear appropriate to substitute for the words "a death or accident" in Clause 9 the expression "a death arising from an accident". This would have the effect of extending the meaning of "a death occurring in Scotland" but not the meaning of "an accident occurring in Scotland". As an inquiry under Clause 1(1)(a) into a death arising from an accident can be held only where both the death and the accident occurred or are taken to have occurred in Scotland, the suggested wording would not be effective to confer jurisdiction in respect of deaths occurring on the Continental Shelf. The use in Clause 9 of the words "a death or fatal accident" would also be inappropriate, as this would not reflect the wording of Clause 1(1)(a)(i).

It is deliberate policy that a mandatory inquiry into a death arising from an accident should be required only where both the death and the accident occurred in Scotland or, where appropriate, the Continental Shelf. The Government would not consider it appropriate to take jurisdiction where the death occurred outside Scotland and would not normally wish to investigate accidents occurring outside Scotland. In the case of inquiries into deaths of people in custody and of discretionary inquiries, on the other hand, the only requirement is that the death has occurred in Scotland.

Before leaving comment on Clause 9, I should mention some points raised earlier in the debate, principally on Amendment No. 2. The noble Earl, Lord Selkirk, asked whether or not it would be reasonable for the public to know the relevant sheriffdom and procurator fiscal district. It is always the procurator fiscal who has the duty of instituting the inquiry. The public need not, therefore, be concerned at that stage regarding the problem of the relevant procurator fiscal and sheriff. Immediately the sheriff has ordered the inquiry, the practice will, I understand, be that a notice will be given to the public by Press advertisement saying where and when it will be held. For procedural purposes, this is what the public will need to know.

The noble Lord, Lord Campbell of Croy, raised two points under Amendment No. 2. He first asked whether there had been difficulties in deciding who was the appropriate procurator fiscal for a specific inquiry. I can tell him that until the difficulty concerning jurisdiction was raised in July 1975, a number of fatal accident inquiries had been held into deaths connected with North Sea operations. No difficulties were experienced in deciding which procurator fiscal was most closely connected with the circumstances of the death or with which sheriffdom the circumstances were most closely associated. The noble Lord next asked what kind of inquiry would be held into the most recent death in the North Sea; he was, of course, referring to the recent diving tragedy. It is most likely that after the death has been investigated by the procurator fiscal, in conjunction with the Department of Energy inspectors, the Lord Advocate will be able to consider instructing the holding of a fatal accident inquiry using the power under Clause 1(2) dealing with retrospective inquiries.

If I have strayed somewhat in my latter remarks from the earlier points of this Amendment, it has been in an attempt to be helpful to noble Lords who raised specific points with me and in an attempt to cover as comprehensively as I could the matters raised earlier. I revert to the point I made when opening my remarks on this Amendment, when I indicated that the Government would resist it.

The Earl of SELKIRK

My Lords, I thank the noble Lord, Lord Kirkhill, for the trouble he has taken in answering the questions I raised, though I am bound to say that I have not found his answers absolutely convincing. I will not raise the same matters again, but his comments were far from satisfactory in settling some of the points at issue. For example, he said that it was not the business of the Lord Advocate to interpret Statutes. I thought that one of the things he was supposed to do was to interpret Statutes for the benefit of the Government, but I will not go into that. In any event, the procurator fiscal has to decide when Clause 1(1)(a) applies. He does not go to the sheriff and ask, "Should I here hold an inquiry?" He goes to the sheriff and says, "This is the inquiry". I will not go into this point now because it is not of itself very important. The noble Lord has gone to considerable pains and trouble to answer my questions and, while he has not entirely answered them, I have no doubt that the bureaucracy concerned will find ways and means to work it all out satisfactorily.


My Lords, perhaps I might intervene to say that it has been the intention of the Government in their executive capacity to stand back so that they do not appear to influence the judicial process, and that is the concept behind much of the thinking relevant to these clauses.


My Lords, I, too, am grateful to the noble Lord, Lord Kirkhill, for replying to many of the points we raised on Clause 9, using the peg of my Amendment, which if course is why it was tabled. He told us how the Government saw this clause being applied, and he answered my question by saying that it would cover all vessels and structures involved with offshore oil and gas, even though they might be ordinary supply boats and the accident was what would happen to any other kind of vessel. If it is engaged in these offshore operations then it will be considered under Clause 9. That was not at all clear until this moment and we are grateful to him for making that clear. The noble Lord also indicated that the same consideration would apply to divers. If divers were involved in any kind of work in connection with offshore oil and gas, then Clause 9 would extend to them; they could be working on a pipeline many miles away from an installation, but they would come under Clause 9.

I asked about the question of timing because under Clause 1(2) those cases which come within the Lord Advocate's discretion—and there will be fewer when this Bill is enacted than there are now—can be dealt with if a death has occurred during the period of three years before the entry into force of this measure; so there is a period of about two years—up to now it has been two and a half years—when accidents which fall within the Lord Advocate's discretion in that way can be looked into. From one remark in his reply it sounded as though the noble Lord thought that the divers' accidents which had occurred this month and last year could be, if the Lord Advocate thought it appropriate, dealt with when the Bill was enacted.

The noble Lord was at pains to say that the Lord Advocate did not wish to interfere, and my noble friend Lord Selkirk mentioned that the Lord Advocate was expected to intervene on various occasions. The good offices of the Crown Office—that is, the Lord Advocate's Department—may well be needed when the Continental Shelf starts to come within this area of fatal accident procedure. For example, he has not considered the case where two procurators fiscal both consider that they are the ones involved. Somebody has to give them guidance. The matter has been perfectly clear, or there has been little doubt, when accidents have occurred on land, but now that this is extended to the Continental Shelf it will be a matter not so much of geography but of which is the appropriate port, and there may have to be some guidance given if two or three procurators fiscal think it is their particular baby.


My Lords, I should like merely to indicate that, in my view, the Lord Advocate would give guidance in such circumstances.


My Lords, I am grateful to the noble Lord. That is the way in which I would interpret this. Also, while, like my noble friend, not being entirely satisfied with all the Government's answers, I am most grateful to the noble Lord personally for having replied to all the points which we have raised by means of the Amendments which I put down. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.