I think that I am correct in saying that when I wrote my report, the website of what is now the Scottish Courts and Tribunals Service set out sheriffs’ determinations and recommendations. At that stage, the responses themselves were not set out anywhere; that was yet to come. The question, then, is: where should the responses go? I thought it better for them to go to the Scottish Government rather than the Scottish Courts and Tribunals Service. Of course, they could go to both, with links between the two of them. However, the issue is all about profile, which is why I thought it best for the recommendations to go to the Scottish Government. I also mentioned the UK Parliament, because some of a sheriff’s recommendations could apply to reserved matters, such as health and safety.
You also touched on the question of how the recommendations are dealt with. I have read Ms Ferguson’s proposals on what you might call the enforcement of sheriffs’ recommendations, and have some thoughts on the matter. At first, I thought that if a party to an FAI thought that it was likely to be the subject of a legal duty to comply with a sheriff’s recommendation, it would want, during the inquiry, to have the clearest specification in that respect and an opportunity, if necessary, to contest that with evidence. The position with regard to a non-participant in an inquiry would be even more significant, because they would not hear what the sheriff’s order was until after the FAI and, in fairness, they would need to be given the opportunity to contest it, presumably through some form of hearing of evidence after the FAI was over.
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What concerns me about all that is that it runs counter to the idea that an FAI is there for the purpose of inquisition, not for the purpose of establishing rights, duties and obligations. That is actually quite foreign to the FAI process and would, I think, be inappropriate. Apart from anything else, it would involve a considerable increase in the amount of time spent in the sheriff court dealing with matters that really should be followed up by organisations such as the Health and Safety Executive or one or other of the Parliaments that have an interest in them.
Making the sheriff’s recommendations mandatory places the sheriff in the position of being able to—if you like—enact a legal duty. Apart from the fact that such a move is foreign to the FAI, it places the sheriff in a rather strange position, because the enacting of legal duties is really a matter for the Parliament. If the sheriff were to enact a duty that must be complied with and, if necessary, enforced by some punishment such as a fine, what would you do with that duty if the recommendation itself turned out not to be wise, was superseded or was for some other reason found to be not good? How would you get rid of it? I suppose that you would have to enact some piece of legislation in order to do so, because until that time, the party concerned would have to comply with that legal duty. That point shades into a constitutional question about who is actually in charge, and it seems to me that that is really a matter for Parliament.
My final and purely practical point is that some sheriffs’ recommendations—for example, a recommendation that something be considered or discussed or that there be collaboration—are simply not the sort of thing that you would make the subject of a legal duty. Other recommendations might be misguided, superseded or conflict with what was being done or had been recommended elsewhere in Scotland. It would be far better to leave sorting all that out to potential legislation or the actions of some authority that was actually charged with responsibility for looking after safety.
I am sorry that my answer was so long, but those are three points that came to me when I thought about the matter.