The
1976 Act provides for public inquiries to be held
in respect of fatal accidents, deaths of persons
in legal custody, sudden, suspicious, or unexplained
deaths, or deaths which occur in circumstances giving
rise to serious public concern. As the Lord Advocate's
powers to investigate deaths in Scotland under this
legislation are wide-ranging, this provision will
have relevance to UK government departments operating
in Scotland in a wide variety of circumstances where
a death occurs, even where the death does not occur
in "legal custody". For Whitehall departments,
these will of course be in areas of 'reserved' policy/operations,
such as, for example, defence (deaths of MoD service
personnel based in Scotland) or immigration (deaths
of asylum seekers in Home Office detention in Scotland).
And in such cases the relevant exemptions (s.26,
s.31, etc) may also be relevant.
Like section 31(1)(h), this provision is limited
by the following factors:
| • |
the
prejudice must be to the inquiry; |
| • |
the exemption applies only to the extent that
the inquiry arises out of an investigation; |
| • |
the
investigation must have been conducted for one
of the "purposes"; |
| • |
the
investigation must have been conducted under
statutory or prerogative powers (although not
necessarily under the 1976 Act itself) |
Some
statutes, which have their own provisions about
inquiries into deaths, expressly allow for the disapplication
of the 1976 Act, to prevent a death triggering two
parallel statutory inquiries. Examples include section
14(7) of the Health and Safety at Work etc Act 1974,
and section 271(6) of the Merchant Shipping Act.
Such provisions will limit the application of this
provision.
The section 31 (2) "purposes" most likely
to be relevant to the investigations referred to
in connection with the 1976 Act are:
| • |
ascertaining
whether any person has failed to comply with
the law; |
| • |
ascertaining whether any person is responsible
for any conduct which is improper; |
| • |
ascertaining
whether circumstances which would justify statutory
regulatory action exist; |
| • |
ascertaining
the cause of an accident. |
