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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kennedy & Anor v The Lord Advocate [2008] ScotCS CSOH_21 (05 February 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_21.html Cite as: [2008] ScotCS CSOH_21 |
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OPINION OF LORD MACKAY OF DRUMADOON
PETITIONS
BY
ROSALEEN KENNEDY and Jean
Black
for
Judicial Review of
Decisions of
THE LORD ADVOCATE AND
SCOTTISH MINISTERS
SUMMARY
These
petitions were raised by the relatives of two people, who died after they had
become infected with the Hepatitis C virus. That infection occurred whilst they
were under the care of the National Health Service in
Lord Mackay
of Drumadoon has held that both the Lord Advocate and the Scottish Ministers
have acted in a manner incompatible with the Convention rights of the deceased.
Lord Mackay has quashed the decisions of the Lord Advocate refusing to hold
Fatal Accident Inquiries into the deaths of the deceased. He has also held that
both the Lord Advocate and the Scottish Ministers have statutory powers under
which they could set up public inquiries into the deaths of the deceased and
that such enquiries would satisfy the Convention rights of the deceased.
Before making
any further orders, Lord Mackay has arranged a further hearing in respect of
each petition to allow the Lord Advocate and the Scottish Ministers a period of
time within which to consider what action they intend to take in the light of
his rulings.
The two
petitions for judicial review were raised by Mrs. Rosaleen Kennedy, the
daughter of Mrs. Eileen O'Hara, who died on
The
petitions were raised against the Lord Advocate and the Scottish Ministers. It
is accepted on behalf of both the Lord Advocate and the Scottish Ministers that
Mrs. O'Hara's death was contributed to by her having become infected with the
Hepatitis C virus as a consequence of blood transfusions. It is also accepted
that Mr. Black's death was contributed to by his having become infected with
the Hepatitis C virus as a consequence of blood transfusions and treatment with
blood products. Mrs. O'Hara and Mr. Black became infected because some of the
blood donations used in blood transfusions and for the preparation of blood
products had been contaminated with the Hepatitis C virus (paras. [4] - [7]).
Mrs. O'Hara
and Mr. Black were amongst more than 4000 individuals who became infected with
the Hepatitis C virus during the 1980s, as a consequence of their being
transfused with blood or blood products contaminated with the Hepatitis C
virus. The circumstances in which those individuals became infected with the
Hepatitis C virus have given rise to public concern. The Scottish National
Blood Transfusion Service and the National Health Service in
The
petitioners have never made any criticisms of any of the doctors and other
medical staff who were directly involved in the care of their relatives. Their
concerns relate to the circumstances in which blood donations from donors
infected with the Hepatitis C virus came to be used in the blood transfusions,
which Mrs. O'Hara and Mr. Black both received, and in the blood products with
which Mr. Black was treated.
Over
several years, the petitioners have called for public inquiries to be held into
the deaths of their relatives. On
On
Lord Mackay
of Drumadoon has held that since the deaths of Mrs. O'Hara and Mr. Black, both
the Lord Advocate and the Scottish Ministers have acted in a manner
incompatible with the Convention rights of the deceased. Article 2 of the
European Convention of Human Rights provides that " everyone's right to life
shall be protected by law...".
When a
person dies following upon treatment in hospital, obligations arise under
Article 2 which require the United Kingdom to have in place a system that is
capable of providing a practical and effective investigation of the facts
relating to the death of that person and the determination of any civil
liability relating to their death. That system can include the possibility of
criminal, civil or disciplinary proceedings and the initiation of an
investigation by the State, which in respect of a death in
In the present cases, factual issues arise as to when each
of Mrs. O'Hara and Mr. Black became infected with the Hepatitis C virus and
whether the Scottish National Blood Transfusion Service and the National Health
Service in Scotland could have introduced the heat treatment of blood products
and the screening of blood donations by earlier dates than they did (paras.
[91] - [97]).
On the
basis of the submissions he received, Lord Mackay has reached the conclusion
that there has never been any possibility of criminal proceedings founded upon
the circumstances leading up to the death of either Mrs. O'Hara or Mr. Black.
No disciplinary proceedings have ever been taken against any individual
involved in the collection of blood donations or the supply of blood and blood
products for the transfusion of Mrs. O'Hara and Mr. Black (paras. [102] -
[105])
Lord Mackay
has also reached the conclusion that whilst it would have been open to the each
of the petitioners to have raised civil proceedings seeking damages, in the
particular circumstances leading up to the deaths of Mrs. O'Hara and Mr. Black,
there has never been any realistic prospects that such civil proceedings would
have led to practical and effective
investigations of the facts relating to those deaths (paras. [106] - [125]).
In the
particular circumstances of these cases, Lord Mackay has reached the conclusion
that the only means by which a practical and effective investigation into the
death of either Mrs. O'Hara or Mr. Black could be achieved would be if the
State were to initiate a public inquiry. That could be done by the Lord
Advocate seeking the holding of a Fatal Accident Inquiry before a Sheriff or by
the Scottish Ministers setting up a public inquiry under the provisions of the
Inquiries Act 2005.
Given the
continuing refusal of the Lord Advocate and the Scottish Ministers to set up
such public inquiries, Lord Mackay has reached the conclusion that, in the
particular circumstances relating to the deaths of Mrs. O'Hara and Mr. Black,
the system in place to meet the State's obligations under Article 2 has not
proved capable of providing a practical and effective investigation into either
death. As a consequence both the Lord Advocate and the Scottish Ministers have
acted in breach of the Convention rights of the deceased (paras. [126] - [128])
Lord Mackay
quashed the decisions of the Lord Advocate not to hold Fatal Accident Inquiries
into the deaths of Mrs. O'Hara and Mr. Black. He did so because the Lord
Advocate had acted in breach of the Convention rights of the deceased and also
on account of errors of law on the part of the Lord Advocate that were apparent
in the letter of 15 June 2006 giving notice of the Lord Advocate's decisions
(paras [127] - [134]) .
Lord Mackay
refrained from setting aside the decision of the Scottish Ministers of16 June
2006, on account of the fact that the decision of the Scottish Ministers had
been taken as being their response to a call for a public inquiry made by the
Health Committee of the Scottish Parliament, rather than their reply to calls
from the petitioners for inquiries into the deaths of Mrs. O'Hara and Mr.
Black. In reaching that decision Lord Mackay also had regard to the fact that
on
Lord Mackay
took the view that it would be premature to grant any further orders against
the Lord Advocate and the Scottish Ministers. He continued the petitions to a
further hearing, to allow the Lord Advocate and the Scottish Ministers the
opportunity to consider what action they intend to take in light of the terms
of his Opinion.
A date for
this hearing will be fixed in due course.
This summary is provided to
assist in understanding the Court's decision. It does not form part of the
reasons for that decision. The full opinion of the Court is the only
authoritative document.
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OUTER HOUSE, COURT OF SESSION [2008] CSOH 21 |
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OPINION OF LORD MACKAY OF DRUMADOON in the petitions of ROSALEEN KENNEDY Petitioner; against THE LORD ADVOCATE AND SCOTTISH MINISTERS Respondents: ___________ JEAN BLACK Petitioner; against THE LORD ADVOCATE AND SCOTTISH MINISTERS Respondents: _______________ |
Petitioners: O'Neill, QC, Caskie; Thompsons
Respondents:
Introduction
Infection
with the Hepatitis C virus in Scotland
"To investigate the circumstances surrounding the supply to patients of contaminated NHS blood and blood products; its consequences for the haemophilia community and others afflicted; and further steps to address both their problems and needs and those of bereaved families".
Steps taken by the
petitioners to obtain public inquiries into the deaths of Mrs. O'Hara and Mr.
Black
[23] Continued
first hearings were held on
[24] Continued
first hearings were then fixed to enable the Court to consider the question of whether
the Court should make orders in relation to the potential liability for expenses
of the petitioners. The orders that were sought were comparable to the
protective costs orders which are available in public interest litigation in
[25] In
January and February 2006 the Health Committee of the Scottish Parliament held public
hearings into the question of whether a public inquiry should be held into the infection
of individuals with the Hepatitis C virus whilst they were in the care of NHS in
[26] During
April 2006 further first hearings were fixed in these cases for 29 and
[27] The
letter dated
"
ROSALEEN
KENNEDY v LORD AVOCATE AND SCOTTISH MINISTERS
JEAN BLACK v
THE LORD ADVOCATE AND SCOTTISH MINISTERS
PETITIONS FOR
JUDICIAL REVIEW
I
refer to the above matter and to the concurrent enquiry that has been made by
the Crown into the circumstances of each of these deaths.
The
Lord Advocate is deeply conscious of the extent of loss and suffering that has
been caused through the transmission of the Hepatitis C virus over many years
through blood products and the transfusion of blood. It is a matter of deep regret that so many
individuals became innocent victims at a point prior to full screening for the
virus becoming available and he would wish to extend his condolences to the
next-of-kin in these cases and others who have been similarly affected. He also recognises that there has been
continuing interest in the fate of those so affected and the deep and lingering
sense of dissatisfaction that they may feel about the past events.
The
Lord Advocate has, however, in the exercise of his duty to investigate deaths,
decided that a Fatal Accident Inquiry is not merited in respect of any of these
deaths. In reaching that conclusion, he
has had regard to inquiries carried out by the Procurator Fiscal, a further
consideration of the issues by Crown Office personnel, and a review by Crown
Counsel of that material, and other relevant information available on the issue
of Hepatitis C infection. Regard
has also been had to the representations which have been made by the next of
kin, and by you on their behalf, during the discussions with the Procurator
Fiscal, in correspondence, and indeed in the pleadings.
The
circumstances of each of these deaths have been examined individually. None of them falls into the category of being
sudden, suspicious, accidental, unexpected or unexplained. In the light of the representations that you
have made, consideration has focused on the relevance of Hepatitis C
infection and the possibility that that may have occurred as a result of
receiving infected blood.
In
respect of the late David Charles Black, it is known that he was a haemophiliac
who received blood products over an extensive period of his life. The issue of Hepatitis C in heat
treatment of blood products for haemophiliacs has already been the subject of
substantial investigation both in terms of the Scottish Executive Health
Department's report of October 2000 and the investigation into allegations of
criminality conducted by Crown Office in 2004.
In
relation to the late Eileen O'Hara, it appears from the information available,
that she contracted Hepatitis C as a result of a blood transfusion but at
a point in time when no practical, preventative measures were available. Transfusion would have been appropriate at a
point when it was believed to be essential for the patient's care.
In
relation to the late Mr. Alexander McArthur, although it can be
established that he became infected with Hepatitis C, this does not appear
to have contributed to his death.
The
deaths of these three individuals came under tragic circumstances, and
naturally I would like to express our sincere condolences to the families and friends
of all three. That said, none of the
deaths falls into a category in which a Fatal Accident Inquiry is
mandatory. Accordingly, the Lord
Advocate could only order an Inquiry if it appeared to him to be expedient in
the public interest to do so, on the grounds that the death occurred in
circumstances such as to give rise to serious public concern. There are no issues surrounding the
circumstances of these individual deaths which can be said to have caused such
public concern, or which would otherwise necessitate a rehearsal of the
relevant facts in a public forum.
Any
wider issues of public concern surrounding the prevalence of the Hepatitis C
virus, its isolation, the development of a screening test, and the management
of infected patients, would be unlikely, in any event, to receive consideration
within the remit of a Fatal Accident Inquiry.
In addition, any such consideration would be a historical exercise which
would be unlikely to produce any recommendations of relevance to modern
circumstances. Any public concern that
there may be in relation to the issue of Hepatitis C appears to relate to
broader areas and to the circumstances of infection generally.
Having
regard to the extent of the inquiry that has already been carried out into the
issue of Hepatitis C infections, both within Scotland and elsewhere, to
the examination of the individual circumstances of these deaths, and to the
existence of other mechanisms available to affected parties, the
Lord Advocate is satisfied that, insofar as Article 2 of ECHR may be engaged,
the obligations of the State have been discharged. The actual nature of the process required, if
Article 2 rights are engaged, varies according to context. There is no suggestion here of any use of force,
lethal or otherwise, or of any other circumstances which would suggest an
enhanced level of responsibility on the part of the State such as to justify
any wider investigation than has taken place.
The duty to make inquiry in respect of any death notified to the
Procurator Fiscal as a result of Hepatitis C infection is particularly
acute if there is uncertainty as to the circumstances of infection and a
prevailing consequential risk to others as a result of these deaths. Neither factor is present in these cases.
Intimation
of this decision would normally be made directly to the next-of-kin but,
standing your position in this matter, and the fact that they are currently
litigants against the Crown, I thought it appropriate to give intimation
through you."
[28] By
press release dated
[29] That press release was in the following terms:-
"News Release
No public inquiry on Hepatitis C
A public inquiry into infection with Hepatitis C through NHS treatment would be unlikely to uncover any new relevant evidence or information and would bring little benefit to the patients involved, Health Minister Andy Kerr said today.
The Minister has written to the Health Committee in response to their call in April for a full judicial inquiry. Mr. Kerr's detailed response sets out:
ˇ the background to the UK-wide 'look back' exercise carried out between 1995-1997 to trace as many patients as possible who had contracted Hepatitis C through blood transfusions'
ˇ continuing Scottish National Blood Transfusion Services (SNBTS) investigations of new cases;
ˇ testing for Hepatitis C;
ˇ communication with patients;
ˇ the case for a public inquiry.
He said:
'I have put on record on a number of occasions our sympathy for those who have contracted Hepatitis C through NHS treatment. I want to reiterate those comments again today.
This has had
serious consequences for the lives of many people, and we do not underestimate
them. It is for this reason that the
Scottish Parliament and Scottish Ministers took the lead in ensuring that
payments were made under the Skipton Fund to those patients affected,
recognising the suffering and hardship involved. The creation of a
The UK-wide
look-back exercise was decided by
The look-back exercise was
fully communicated at the time to the public and to doctors. There was advice
available through a helpline to those who were concerned about the risks from
transfusion, and advice to doctors on counselling for people at risk and how to
arrange for testing. I would like to emphasise that testing and counselling are
still available for anyone who considers they are at risk as a result of a
transfusion before 1991. Anyone who has concerns can raise those with their GP
and request testing.
A full judicial inquiry
would be a major and time-consuming exercise which would depend on the
recollections of witnesses about events which took place twenty or more years
ago. This would make it difficult to construct a clear and detailed picture of
what took place.
An inquiry would not add
significantly to our understanding of how the blood supply became infected with
Hepatitis C, or the steps needed to deal with problems of this kind now or in
the future. The transmission of Hepatitis C through the blood supply took place
in the period before testing was introduced in 1991, and at a time when there
was limited scientific and medical knowledge about the condition and the
outlook for patients. There is already substantial published evidence on how
the understanding of Hepatitis C and its implications for blood donation, blood
products and blood transfusion developed over time. A public inquiry would not
add to this.
Practice in terms of communication between health
professionals and patients, and assessing and communicating the risks of
medical treatment, has changed significantly since the 1980s when these
infections occurred and important lessons have been learned. It is highly
unlikely that an inquiry would identify new issues or areas for improvement in
practice for the future which have not already been discussed or implemented.
I have considered very
carefully the points which were put before the Committee, and discussed by it
on 18 April. I do not believe a public inquiry would either uncover any new
evidence or information that is relevant to the causes of the infection of NHS
patients through blood and blood products, or lead to significant lessons for
the future.
It would be a diversion of
effort from delivering and improving health services today. I cannot see that
there is any possible justification for the efforts and costs that would be
involved, or that this would bring any benefit to the patients involved. "
"1. Whether, having regard to section 1(1) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, Article 2 of the European Convention on Human Rights, section 57(2) of the Scotland Act 1998 and section 6(2) of the Human Rights Act 1998, the first respondent was obliged to order a fatal accident inquiry (FAI) in the circumstances of this case.
2. Whether, in exercising his decision not
to hold a FAI in the circumstances of this case, the first respondent exercised
his discretion reasonably.
3. Whether, having regard to section 48(5)
of the Scotland Act 1998, the Second Respondents had any power to order any
such inquiry or an analogous inquiry (it not being clear what type of inquiry
the petitioner seeks).
4. Whether, having regard to section 28(2)
of the Inquiries Act 2005, the second respondent has any power to order any
such inquiry or an analogous inquiry."
"(a) Reduction of the decision of the first respondent intimated by letter dated 15 June 2006 from the Deputy Crown Agent to the petitioner's solicitor to refuse to order an inquiry under the 1976 Act into the death of the late Eileen O'Hara (David Black).
(b) Reduction of the decision of the second respondents intimated by press release dated 16 June 2006 and circulated in the name and under the authority of the Health Minister, Mr. Andy Kerr MSP, to refuse to order an inquiry under the 2005 Act into the death of persons such as the late Eileen O'Hara (David Black) who died consequent upon her infection with Hepatitis C through NHS treatment in Scotland;
(c) Declarator that the petitioner is entitled to an independent, effective, and reasonably prompt public inquiry into the death of Eileen O'Hara (David Black), and at which her (his) next of kin can be legally represented, provided with the relevant material and able to cross-examine the principal witnesses, and that a failure on the part of the respondents to provide such an inquiry is incompatible with Article 2 of the European Convention on Human Rights and accordingly ultra vires of section 57(2) of the Scotland Act 1998;
(d) An order ordaining the respondents to cause such an inquiry to be held, by such procedure, and within such period, as the Court may determine."
(1) Under and in terms of plea in law 4 in
each petition for an order repelling the defences of each of the respondents on
the grounds of their fundamental irrelevance and lack of specification;
(2) Under
and in terms of plea in law 1 and 4 in each petition, for an order for
reduction of the decision of the first respondent,
the Lord Advocate, intimated by letter dated 15 June 2006 from the Deputy Crown
Agent to the petitioners' solicitor to refuse to order an inquiry under the
1976 Act into the deaths of the late Eileen O'Hara et separatim of the late David Black respectively;
(3) under and in terms of Plea in law 2 and 4 in each petition, for reduction of the decision of the second respondents, the Scottish Ministers, intimated by press release dated 16 June 2006 and circulated in the name and under the authority of the Health Minister, Mr. Andy Kerr MSP, to refuse to order an inquiry under the Inquiries Act 2005 into the death of persons such as the late Eileen O'Hara et separatim of the late David Black respectively who died consequent upon their infection with the Hepatitis C virus ("Hepatitis C virus") through NHS treatment in Scotland; and
(4) Under and in terms of Plea in law 3 and 4 in each petition, for an order ordaining the respondents to hold inquiries into the deaths of the late Eileen O'Hara et separatim of the late David Black under procedure which is compliant with the minimum requirements of Article 2 of the European Convention on Human Rights."
Statutory
framework
[38] Article 2 of the European Convention on Human Rights provides:-
"1. Everyone's right to life shall be protected by law. ....."
[.....]
The Fatal Accidents and Sudden Deaths Inquiry (
"Investigation of death and application for public inquiry
1. - (1) Subject to the provisions of any enactment specified in Schedule 1 to this Act and subsection (2) below, where-
(a) .....
(b) it appears to the Lord Advocate to be expedient in the public interest in the case of a death to which this paragraph applies that an inquiry under this Act should be held into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern, the procurator fiscal for the district with which the circumstances of the death appear to be most closely connected shall investigate those circumstances and apply to the sheriff for the holding of an inquiry under this Act into those circumstances.
(2) .....
(3) An application under
subsection (1) above-
(a) shall be made to the
sheriff with whose sheriffdom the circumstances of the death appear to be most
closely connected;
(b) shall narrate briefly the circumstances
of the death so far as known to the procurator fiscal;
(c) may, if it appears that more deaths
than one have occurred as a result of the same accident or in the same or
similar circumstances, relate to both or all such deaths."
.....
Sheriff's determination etc.
6. - (1) At the
conclusion of the evidence and any submissions thereon, or as soon as possible
thereafter, the sheriff shall make a determination setting out the following
circumstances of the death so far as they have been established to his
satisfaction-
(a) where and when the death and any
accident resulting in the death took place;
(b) the cause or causes of such death and
any accident resulting in the death;
(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;
and
(e) any other facts which are relevant to the circumstances of the death."
.....
(3) The determination of the sheriff shall not be admissible in evidence or be founded on in any judicial proceedings, of whatever nature, arising out of the death or out of any accident from which the death resulted.
[.....]
The Scotland Act 1998 ("the Scotland Act") provides:
" 48(5) Any
decision of the Lord Advocate in his capacity as head of the systems of
criminal prosecution and investigation of deaths in
.....
57(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law. "
[.....]
The Human Rights Act 1998 ("the Human Rights Act") provides:
"6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if -
(a) as the result of one or more provisions of, or made under, primary legislation, the authority could not have acted differently; or
(b)in the case of one or more provisions of, or made under, primary legislation that cannot be read or given effect to in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
.....
(6) "An act" includes a failure to act ...."
[.....]
The Inquiries
Act 2005 provides:-
"Power to
establish inquiry
1. (1)
A Minister may cause an inquiry to
be held under this Act in relation to a case where it appears to him that-
(a) particular events have caused, or are
capable of causing, public concern, or
(b) there is public concern that particular
events may have occurred.
(2) In
this Act 'Minister' means-
(a) a
(b) the Scottish Ministers;
(c) a
and references
to a Minister also include references to the National Assembly for
(3) References in this Act to an inquiry,
except where the context requires otherwise, are to an inquiry under this Act.
No determination
of liability
2 (1) An inquiry panel is not to rule on, and
has no power to determine, any person's civil or criminal liability.
But an inquiry
panel is not to be inhibited in the discharge of its functions by any
likelihood of liability being inferred from facts that it determines or
recommendations that it makes.
.....
Setting-up date
and terms of reference
5 (1) In the instrument under section 4
appointing the chairman, or by a notice given to him within a reasonable time
afterwards, the Minister must-
(a) specify the date that is to be the
setting-up date for the purposes of this Act; and
(b) before that date-
(i) set out the
terms of reference of the inquiry;
(ii) state whether or not the Minister proposes to appoint other members
to the inquiry panel, and if so how many.
(2) An inquiry must not begin considering evidence before the setting-up
date.
(3) The
Minister may at any time after setting out the terms of reference under this
section amend them if he considers that the public interest so requires.
(4) Before setting out or amending the terms
of reference the Minister must consult the person he proposes to appoint, or
has appointed, as chairman.
(5) Functions conferred by this Act on an
inquiry panel, or a member of an inquiry panel, are exercisable only within the
inquiry's terms of reference.
(6) In this Act 'terms of reference', in
relation to an inquiry under this Act, means-
(a) the matters to which the inquiry relates;
(b) any particular matters as to which the
inquiry panel is to determine the facts;
(c) whether the inquiry panel is to make
recommendations;
(d) any other matters relating to the scope
of the inquiry that the Minister may specify.
.....
27 (1) This section applies to an inquiry for
which a United Kingdom Minister is responsible.
(2) The Minister may not, without first
consulting the relevant administration, include in the terms of reference
anything that would require the inquiry-
(a) to determine any fact that is wholly or
primarily concerned with a Scottish matter or a Welsh matter;
(b) to determine any fact that is wholly or
primarily concerned with a matter which is, and was at the relevant time, a transferred
(c) to make any recommendation that is wholly
or primarily concerned with a Scottish matter, a Welsh matter or a transferred
(3) Unless the Minister gives written
permission to the chairman, the powers conferred by section 21
are not exercisable-
(a) in respect of evidence, documents or
other things that are wholly or primarily concerned with-
(i) a Scottish matter or a Welsh matter, or
(ii) a matter which is, and was at the
relevant time, a
(b) so as to require any evidence, document
or other thing to be given, produced or provided by or on behalf of the Scottish
Ministers, the National Assembly for
(4) Before granting permission under
subsection (3) the Minister must consult the relevant administration.
(5) Permission under subsection (3) may be
granted subject to such conditions or qualifications as the Minister may
specify.
(6) Permission under subsection (3) is not
required for the exercise of powers in circumstances in which subsection
(6) of section 30 would prevent the powers from being exercised in
the case of an inquiry to which that section applies.
(7) In this section-
'the relevant
administration' means whichever of the following the case requires-
(a) the Scottish Ministers;
(b) the National Assembly for
(c) such one or more
'the relevant
time' means the time when the fact or event in question occurred (or is alleged to have occurred);
'Scottish
matter' means a matter that relates to
.....
Scottish inquiries
28 (1) This section applies to an inquiry for
which the Scottish Ministers are responsible.
(2) The terms of reference of the inquiry
must not require it to determine any fact or to make any recommendation that is
not wholly or primarily concerned with a Scottish matter.
(3) The powers conferred by section 21
are exercisable only-
(a) in respect of evidence, documents or
other things that are wholly or primarily concerned with a Scottish matter, or
(b) for the purpose of inquiring into
something that is wholly or primarily a Scottish matter.
(4) Those powers are not exercisable so as to
require any evidence, document or other thing to be given, produced or provided
by or on behalf of Her Majesty's Government in the
(5) In this section 'Scottish matter' means a
matter that relates to
.....
Joint inquiries
32 (1) The power under section 1
to cause an inquiry to be held, or to
convert an
inquiry under section 15,
is exercisable by two or more Ministers acting jointly.
(2) In this Act 'joint inquiry' means an
inquiry for which by virtue of this section, or section 34,
two or more Ministers are responsible.
(3) In the case of a joint
inquiry-
(a) powers conferred on a Minister by any
provision of this Act (except section 41)
are exercisable by the Ministers in question acting jointly;
(b) duties imposed by this Act on a Minister
are joint duties of those Ministers.
(4) Subsection (3)(b), so far as relating to
obligations under section 39,
is subject to any different arrangements that may be agreed by the Ministers in
question.
Inquiries
involving more than one administration
33 (1) This section applies to a joint inquiry
for which the Ministers
responsible ('the relevant Ministers') are not all United Kingdom Ministers and
are not all Northern Ireland Ministers.
(2) A limitation imposed by section 27(2),
28(2),
29(2)
or 30(2) or (3)
on the terms of reference of an inquiry for which a particular Minister is
responsible has effect only to the extent that it applies in relation to all of
the relevant Ministers.
(3) A limitation imposed by section 27(3),
28(3) or (4),
29(3) or (4)
or 30(4) or (5)
on the powers conferred on the chairman of an inquiry for which a particular
Minister is responsible has effect only to the extent that it applies in
relation to all of the relevant Ministers.
(4) Subsections
(6) and (7) of section 30 do not apply if at least one of the
relevant Ministers is a United Kingdom Minister."
[.....]
[43] The submissions advanced on behalf of the petitioners in
respect of Article 2, were extensive. It
was stressed, amongst other points, that the Strasbourg Court has held (a) that
an individual's rights under Article 2 to have his life protected by law can
impose a correlative duty on the State to provide for a public inquiry into his
death (see McCann v United Kingdom (1995) 21 EHRR 97, Anchovy and others v Bulgaria
(2006) 42 EHHR 43, and Öneryildiz v
Turkey ECtHR (Grand Chamber), 30 November 2004); (b) the persons responsible
for carrying out such an investigation require to be independent in practice,
as well as in theory, from those implicated in the events relating to the death
(Trubnikov v Russia, ECtHR (Grand
Chamber), 5 July 2005 and Edwards v
United Kingdom (2002) 35 EHRR 487, (c) that is so even where there was no
direct or indirect State responsibility for the death (see Menson and others v United Kingdom (Application no.47916/99) ECtHR
non-admissibility decision of 6 May 2003 (2003) 37 EHRR CD 220 and Pereira Henriques v Luxembourg, ECtHR, 9
May 2006); and (d) a State's obligations
under Article 2 include the obligation to investigate the death of an
individual who had been under the care and responsibility of the medical
profession (see Erickson v Italy 29 EHRR
CD 152, 156 (ECtHR 26 October 1999), Powell
v United Kingdom (2000) 30 EHRR CD 362, Reports of Judgments and Decisions
2000-V, p.397, Sieminska v Poland App
No. 37602/97 (