Where are Scotland’s ‘Covid Death Lessons’?

by | 6 Dec 2021

In England an independent Coroner system has produced clear warnings about Covid failures. There is no comparator in Scotland because we do not have an independent Coroner system, so we are in the dark

Today it has been revealed that in England Coroners have issues 16 rare ‘reports to prevent future death’. These are the result of the inquests that occur automatically in England and Wales whenever there is an unnatural death and which are carried out by an independent Coroner’s office.

What they show is that there were serious failings in many public and private institutions in Britain during the first wave of Covid where absolutely preventable deaths were allowed to occur because of poor practice. These notes are a way of highlighting that practice must not just improve but that these specific errors were predictable and action must be taken now to prevent recurrence.

The rarity with which these are issued in England is so they are not over-used and to ensure that they are taken seriously. These are not ‘health and safety back-covering’.

So what can we learn from the same process in Scotland? That’s the problem – nothing, because there is no parallel process in Scotland.

Scotland is the only country in Europe which does not have a statutory independent Coroner system. Scotland relies on the Fatal Accident Inquiry process which must be triggered by a Government Minister (usually the Lord Advocate) and is then carried out under the auspices of the Lord Advocate by the procurator fiscal service.

There are a number of significant problems with this. First, there should not be an incentive built into the system which means that the person who is able to trigger a review of a death in Scotland may have a vested interested in preventing that investigation.

If deaths relate to failure in public policy there is a conflict between a government’s responsibility to get a proper ruling on why it happened and a government’s desire to prevent negative conclusions about its actions.

This is made worse because in Scotland there is insufficient separation of the executive (the government) and the judiciary (the legal system). As has been noted the head of Scotland’s legal system is not only directly appointed by the First Minister but actually sits in cabinet. This also means that the person responsible for the operation of the justice system owes their position directly to the head of the government.

Clearly that does not mean that a Lord Advocate cannot undertake their work honestly and diligently, but it does mean that no-one else can have the reassurance that they are carrying out their work honestly and diligently without vested interest getting in the way.

This is almost certainly all contrary to key sections of the European Convention on Human Rights (particularly Articles 1, 2 and 6) which states that there must be complete separation between the executive and the judiciary.

If deaths relate to failure in public policy there is a conflict between a government’s responsibility to get a proper ruling on why it happened and a government’s desire to prevent negative conclusions about its actions

But the threat of Fatal Accident Inquiries simply not being called is very significant.,There are only a limited number of circumstances in which a Fatal Accident Inquiry is mandatory in Scots law (such as deaths in custody, at work, in children’s secure accommodation or where it is the result of a criminal act).

None of these appear to require mandatory investigations into deaths in care homes or a range of other avoidable Covid deaths. Certainly there have been no comparable public documents such as the ‘reports to prevent future death’ which have been issued in England. Yet exactly the same conditions apply.

This would be troubling as a matter of principle, but coming as it does on the back of mounting evidence that the Scottish Government wishes to minimise scrutiny of its performance during the pandemic, that active obstruction of the transparent publication of evidence of failures during Covid has taken place by government agencies or that even mandatory inquiries in Scotland have just been found to be illegal.

This last point is particularly pertinent; recent inquiries into deaths in custody have just been ruled illegal on the basis that the person appointed Chair of the review clearly had a conflict of interests in suppressing damaging information given that he was also a non-executive member of the Scottish Prison Services Board.

Can we be confident that an honest assessment of the performance of the prison service can be made by someone who is liable if certain failures are identified? Can we be confident of a fair and honest Covid inquiry by a government willing to compromise a mandatory legal review in this way by appointing as its chair someone with a conflict of interests?

There are serious problems with Scotland’s justice system and its relationship with government and the steps taken by the genuinely independent Coroner service in England shows precisely why the result of Scotland’s system as it is is to leave citizens in serious doubt as to whether there are honest and open inquiries held when tragedies happen here.

Given what happened in Scotland’s care homes and the clear political jeopardy this creates for the current administration, this all should give yet more cause for concern.

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