As the MSP for Glasgow Maryhill and Springburn, I have raised concerns about whether the legislation granting the Lord Advocate discretionary powers to instruct fatal accident inquiries (FAIs) into the deaths of Scots overseas is truly operating as intended. While the 2016 Act has enabled important investigative steps such as post‑mortems, gathering witness statements in Scotland, and requesting information from abroad – no FAI has yet been instructed under these powers.
That was not the outcome envisaged when I campaigned alongside my constituent Julie Love to secure this change in law. I have therefore pressed the Scottish Government to review the impact of the legislation on overseas deaths and to consider whether further improvements, legislative or otherwise, may be required to ensure families receive the answers and reassurance they deserve.
Full text of my question, and the reply from the Cabinet Secretary for Justice and Home Affairs:
Bob Doris (Glasgow Maryhill and Springburn) (SNP)
To ask the Scottish Government what its position is on whether the legislation that gives the Lord Advocate discretionary powers to instruct fatal accident inquiries, in certain circumstances, into the deaths of persons normally resident in Scotland who die overseas, is operating as intended. (S6O-05236)
The Cabinet Secretary for Justice and Home Affairs (Angela Constance)
The Scottish Government considers that the legislation is operating as intended. It provides the flexibility for an investigation and an FAI into the death of a person who is ordinarily resident in Scotland when the death occurs outwith the United Kingdom. Its purpose is to allow an FAI when the Lord Advocate considers it appropriate and in the public interest.
Fatal accident inquiries into deaths overseas were always expected to be rare and none have been held since 2017. Significantly, however, the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016 has enabled the Crown Office to conduct inquiries that were not previously possible, including post-mortems and the gathering of evidence, which gives families meaningful answers and reassurance.
Bob Doris
I acknowledge that the Lord Advocate has indicated that the 2016 act has allowed various investigative matters to be undertaken following overseas deaths, as the cabinet secretary has indicated. That has perhaps included post-mortems, statements from witnesses based in Scotland, and the requesting of information from abroad about inquiries that have taken place into the findings of investigations there. That is welcome.
However, to date, not a single FAI using the Lord Advocate’s discretionary powers has taken place. When I campaigned with my constituent, Julie Love, that was not the situation that we intended. Given that fact, will the cabinet secretary outline whether the Government will consider reviewing the impact of the 2016 act on overseas deaths and whether any legislative or non-legislative improvements could be desirable in the future?
Angela Constance
I acknowledge the tireless campaign—led by Mr Doris’s constituent, Julie Love—which was instrumental in securing the change in the law, so that fatal accident inquiries could be held following the death overseas of a person ordinarily resident in Scotland.
Of course, it is a discretionary power that rests with the Lord Advocate and was viewed at the time as a historic change that provided the legislative basis for the Crown to investigate and enabled the Lord Advocate to instruct an FAI when the circumstances, in her view, had not been sufficiently established and there was a real prospect that an inquiry would do so.
The issue is close to my heart and my constituency, and I assure Mr Doris that, as with all legislation and non-legislative measures, we keep the law under regular review to ensure that it continues to meet its intended purposes and operates fairly and effectively in the public interest.