SUPPLEMENTARY LEGISLATIVE CONSENT MEMORANDUM
Coroners and Justice Bill
Draft Legislative Consent Motion
1. The draft motion, which will be lodged by the Cabinet Secretary for Justice, is:
"That the Parliament agrees that the relevant provisions of the Coroners and Justice Bill, introduced in the House of Commons on 14 January 2009, relating to the EU Services Directive, criminal memoirs and the Scottish system of investigation of deaths and fatal accident inquiries into deaths abroad of members of the armed forces and others, so far as these provisions relate to matters within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament."
Background
2. This memorandum has been lodged by Kenny MacAskill, Cabinet Secretary for Justice, under Rule 9.B.3.1(c) of the Parliament's Standing Orders. The Coroners and Justice Bill was introduced in the House of Commons on 14 January 2009. The Bill can be found at:
http://www.publications.parliament.uk/pa/cm200809/cmbills/009/09009.i-v.html
3. An earlier legislative consent memorandum relating to the Coroners and Justice Bill was lodged by Kenny MacAskill, Cabinet Secretary for Justice, on 20 January 2009.
Update on Information Sharing Gateways
4. In light of recent developments, the Scottish Government is no longer seeking consent to the provisions in the UK Bill relating to the power to create information sharing gateways. As a result, the Scottish Government does not intend to lodge a motion in the terms set out in the memorandum of 20 January. It will instead bring forward the revised motion set out at paragraph 1 above.
5. The Scottish Government's revised assessment of the information gateway provisions was notified to the Parliament on 2 March in a letter from the Cabinet Secretary for Justice to Bill Aitken MSP, Convener of the Justice Committee.
6. This revised position reflected emerging concern about the effect of the provisions. In particular, important criticisms had been expressed in evidence given to the Justice Committee and in a paper published on 7 February by the UK Information Commissioner's Office.
7. In light of the significant concerns expressed by the Scottish Government and others, the UK Government has now indicated that it intends to drop the provisions from the UK Bill and attempt to reach a consensus on a scaled-back version of the proposals for inclusion in a future Bill. A statement to this effect was made by Jack Straw, the UK Minister for Justice, on 8 March 2009.
Continued relevance of the memorandum of 20 January
8. The memorandum lodged on 20 January dealt with three matters falling within devolved competence. Of these, the Scottish Government remains content to seek the consent of the Scottish Parliament in relation to provisions concerning the EU Services Directive and criminal memoirs.
9. The revised draft motion therefore omits reference to the power to create information sharing gateways. However, it continues to cover the EU Services Directive and criminal memoirs elements of the UK Bill and is extended to encompass the new provisions relating to Fatal Accidents and Sudden Deaths which form the principal subject matter of this memorandum.
10. The Justice Committee has already considered and reported on the EU Services Directive and criminal memoirs provisions in the UK Bill ( 7th Report, 2009 (Session 3), published on 12 March 2009) . Since both the provisions themselves and the Scottish Government's position remain unaltered, these matters are not re-examined in this memorandum.
Content of the Coroners and Justice Bill
11. The Coroners and Justice Bill is a bill in nine parts amending the law for purposes connected to coroners, the certification and registration of deaths, dealing with offenders, benefits derived from the exploitation of materials pertaining to offences and data protection.
Fatal Accidents and Sudden Deaths - Military Personnel
12. UK Government amendments to the Coroners and Justice Bill requiring a supplementary legislative consent memorandum in addition to the previously identified provisions have now been tabled at Report stage in the House of Commons. The amendments can be found at:
http://www.publications.parliament.uk/pa/cm200809/cmbills/072/amend/pbc0721703a.395-401.html
13. The amendments establish jurisdiction under the Scottish system of investigation of deaths and fatal accident inquiries in relation to the transfer to that jurisdiction of responsibility for the investigation of the deaths of members of the armed forces and related categories of personnel with a link to Scotland who die while engaged in operational theatres outwith the British Isles, in order that inquiry into the circumstances of their deaths can be conducted in Scotland, closer to the homes of bereaved relatives.
14. The amendments provide for either the Secretary of State for Defence or the Chief Coroner of England and Wales to request from the Lord Advocate an agreement to hold a fatal accident inquiry into relevant cases, in specific circumstances.
Fatal Accidents and Sudden Deaths - amendments which relate to Scotland
15. The amendments are made to the Fatal Accident and Sudden Death Inquiries (Scotland) Act 1976 ("the 1976 Act"), which establishes the circumstances under which a death requires to be investigated and under which a fatal accident inquiry may be held.
16. Provision is required to enable the Lord Advocate to accept the transfer to the jurisdiction under the 1976 Act of responsibility for investigating deaths abroad under the specified circumstances, instead of it being dealt with in the coroners' inquest system in the rest of the UK. This would cover military and associated personnel overseas on military operations associated with preparation, training or direct engagement for active service in operational theatres/conflict zones, where appropriate.
17. A reciprocal transfer mechanism back to the coroners system where this becomes necessary is also provided for in Part 1 of the Coroners and Justice Bill. This might, for example, occur in circumstances where a body were returned direct to Scotland but it then became clear that it would be more appropriate to hold an inquest in England.
18. Under current legislation, fatal accident inquiries may not be held into deaths occurring out with Scotland and its territorial waters, save in those cases occurring on oil installations on the UK continental shelf which are considered as occurring within Scotland for these purposes.
Fatal Accidents and Sudden Deaths - reasons for seeking a legislative consent motion
19. Current military operations in Iraq and Afghanistan and the distress caused to bereaved service families based in Scotland by the requirement to travel to southern England for coroners' inquests highlight the benefits of these amendments.
20. Moreover, these circumstances suggest that it would be undesirable to await the outcome of Lord Cullen's review of legislation covering fatal accident inquiries before introducing the ability to investigate deaths abroad for these purposes. Lord Cullen's review is considering the wider investigation of the deaths of all Scots abroad, and those more general issues can be dealt with in light of the outcome of Lord Cullen's review and on receipt of Lord Cullen's recommendations.
21. The Coroners and Justice Bill introduces the office of Chief Coroner for England and Wales, and provides for the power of the Chief Coroner to transfer inquests between jurisdictions of different coroners. It provides an appropriate and more timely legislative vehicle for introducing the required changes enabling such inquiries to be held in Scotland. Amendments to the Bill on 17 March 2009 make provision in Part 1 for a request to be made by the Secretary of State (for Defence) or the Chief Coroner to the Lord Advocate for the transfer of responsibility for the death to the Scottish system of investigation of deaths under the 1976 Act. The Bill also makes amendments to the jurisdiction under the 1976 Act.
22. The amendments made to the Bill relate both to devolved matters and to matters outwith the legislative competence of the Parliament. The consent of the Scottish Parliament is required in light of the effect of the changes to the 1976 Act extending the civil system of investigation of deaths and fatal accident inquiries in Scotland for the categories of persons affected, including the ability to accept transfers into the Scottish system, to carry out an investigation where a transfer has occurred, and for an application to the sheriff for an inquiry to be held.
23. Consent is not required in relation to the operation of the coroners' system in England and Wales or to matters falling within the defence reservation in paragraph 9 of Part I of Schedule 5 to the Scotland Act 1998.
Fatal Accidents and Sudden Deaths - financial Implications
24. Agreement to the legislative consent motion will require the Crown Office and Procurator Fiscal Service to take on additional - and potentially complex - cases and to prepare its staff to deal with investigations into deaths occurring abroad in the specified circumstances. New and challenging issues may arise for COPFS staff from these cases and they will need to develop expertise in this new area of work. The Lord Advocate has requested that the demands which this additional work will place on COPFS should be kept under regular review.
25. Other financial and other resource implications - including court time and judicial resources - will be directly related to the unpredictable volume of relevant cases. These are a product of overseas British military engagements and outwith the control of Scottish Ministers. From 2001 - 2008 there were approximately 30 Scottish deaths arising from British military operations in Kuwait, Iraq and Afghanistan.
Conclusion
26. By enabling inquiries to be held in Scotland, this memorandum reflects the clear will of many Members contributing from different parts of the Chamber in the debate held on 27 March 2008, details of which can be found at:
http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-08/sor0327-02.htm#Col7474
Scottish Government
March 2009