Explanatory note

This Order makes provision in consequence of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (“the Act”).

Article 2 has the effect that a fatal accident inquiry (“FAI”) which would be mandatory by virtue of section 2(4)(a) and (5)(d) of the Act (death of person required to be detained in service custody premises) is treated in the same way as other mandatory FAIs; therefore if the circumstances of a death have been sufficiently established in the course of an inquiry under section 1 of the Inquiries Act 2005 the Lord Advocate may decide that a FAI is not to be held.

Article 3 makes equivalent provision for section 5 of the Act (certain deaths and accidents to be treated as occurring in Scotland) for England and Wales and Northern Ireland. The predecessor provision, section 9 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (“the 1976 Act”), is repealed in England and Wales and Northern Ireland by paragraph 4 of the Schedule to this Order.

Articles 4 and 5 make equivalent provision for sections 22 and 23 of the Act (publishing restrictions in relation to children; offences by bodies corporate etc.) for England and Wales and Northern Ireland. The predecessor provisions, section 4(4) and (5) of the 1976 Act, are repealed in England and Wales and Northern Ireland by paragraph 4 of the Schedule to this Order.

Article 6 provides for a new category of mandatory FAIs where a death occurs in Scotland or the Scottish area of the continental shelf in the course of military service. That article modifies the Act so that these types of mandatory FAIs are treated in a similar fashion to other mandatory FAIs, for example so that where the circumstances of a death have been sufficiently established in the course of other proceedings the Lord Advocate may decide that a FAI is not to be held. Article 6(2) makes provision so that the Act applies to a FAI in relation to a death in the course of military service but some modification of that application is required. Sections 3(1) and 4(2) of the Act identify deaths which give rise to a mandatory FAI by reference to sections 2(3) or (4) of the Act so that reference is expanded in Article 6(2)(b) to include deaths of service personnel. Section 11(1)(d) of the Act makes provision as to who may participate in a FAI into a death under section 2(3) of the Act (death in the course of employment). Only section 11(1)(d)(ii) is relevant in the military service context and this is supplemented by bespoke provision in article 6(3).

Article 7(1) introduces the Schedule which provides for modifications of primary and secondary legislation. The modifications to primary legislation include parallel modifications for England and Wales and Northern Ireland to those provided for in schedule 2 to the Act for Scots law. In the case of paragraph 4, the 1976 Act is entirely repealed in Scots law by section 39(1) of the Act. In the case of Part 1 of the Schedule – which concerns merchant shipping legislation – the modifications provided for are not made in the Act and therefore extend to the whole of the United Kingdom. Part 3 concerns the law of England and Wales only and therefore does not extend to Scotland or to Northern Ireland.

Article 7(2) is a saving provision to reflect that references in existing legislation to the 1976 Act should continue to have effect for cases where that Act continues to apply.

A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.