The Report
of the Iraq Inquiry
371.
Officials from
the MOD, MOJ and Scottish Executive met on 14 December
to
consider
the possibility of transferring responsibility for inquiries into
the deaths of
“Scottish‑based”
Service Personnel who were killed overseas from the coroners’
service
to the
Crown Office and Procurator Fiscal Service (COPFS),240
“with a
view to FAIs being
held rather
than coroners’ inquests”.241
The meeting
concluded that:
•
The way
forward might be an order under Section 30 of the Scotland
Act
1998.242
That
possibility would be explored by the Scottish Government
Legal
Directorate
and the Office of the Solicitor to the Advocate General
(OSAG).
•
There did
not appear to be any “fundamental obstacles” to the
proposed
transfer.
•
The
discretionary nature of the FAI system would need to be
addressed.
372.
On 27 March
2008, in response to a letter from Mr MacAskill,
Mr Browne wrote:
“Addressing
these issues is ... a matter for Scottish Ministers. The answer is
for
you to make
a commitment to amend Scots law in a way that can guarantee
that
Scottish‑based
Service families can be assured of mandatory inquiries into
overseas
operational
deaths. If that were to happen then it would be entirely
appropriate to
repatriate
deceased Service Personnel to Scottish bases once the law has
been
changed.
You will understand, however, that I cannot contemplate changes
without
your
commitment to mandatory investigations.”243
373.
Mr Browne’s
letter was copied to all Members of the Scottish Parliament, in
order
to inform
the debate on the planned review of FAIs which would be held in the
Scottish
Parliament
later that day.
374.
The issue of
enabling inquiries to be held in Scotland into the deaths of
Service
Personnel
normally domiciled in Scotland featured heavily in the
debate.244
375.
Closing the
debate, Mr MacAskill stated that an amendment to the Scotland
Act
1998 would
be necessary before Scotland could act:
“If Des
Browne agrees to the making of a section 30 order, we can begin to
make
progress;
without a section 30 order, it would be ultra vires for us to
proceed – the
Parliament
simply could not take such action.”
240
The Crown
Office and Procurator Fiscal Service is Scotland’s prosecution
service.
241
Report,
[undated], ‘Note of meeting to discuss possibility of Fatal
Accident Inquiries into deaths of
Scottish‑based
Service personnel in St Andrews House, 14 December
2007’.
242
Orders made
under Section 30(2) of the Scotland Act 1998 allow for
modifications to be made to
Schedule 5
to the Scotland Act, which lists those matters that are reserved to
the UK Parliament, and
as such
defines the competence of the Scottish Parliament. The order-making
power allows the Scottish
Parliament’s
legislative competence to be altered by removing or updating
existing reservations, or by
adding new
ones.
243
Letter
Browne to MacAskill, 27 March 2008, [untitled].
244
Scottish
Parliament, Official
Report, 27 March
2008.
140