RMT response to consultation on Scottish Government proposals to reform Fatal Accident Inquiries Legislation

RMT represents 80,000 transport and offshore energy industry workers, including over 5,000 working at all grades in the offshore oil and gas industry in the UK sector of the North Sea.

We welcome the opportunity to comment on the consultation over those proposals from Lord Cullen which the Scottish Government accepted in March 2011 and require primary legislation to implement, although we remain concerned at the effectiveness of Fatal Accident Inquiries as means of securing justice for the families and loved ones of victims of fatal accidents, as well as the usefulness of FAIs in providing evidence that can improve both the understanding of the causes of fatal accidents and preventing the same type of accident from happening again.

Our response is general but relates to the consultation questions under Chapters 4 (Delays), 5 (FAI accommodation), 6 (Sheriffs’ recommendations) and 7 (Legal aid for bereaved relatives) of the Scottish Government’s consultation paper.

The RMT’s response contains the following key points:

  • The current FAI process has comprehensively failed to provide useful industrial safety lessons that avert future incidents that cause fatalities, particularly in the offshore helicopter industry.
  • FAIs should be held as quickly as possible after they are officially requested, with the introduction of timeframes for submission of an FAI application and forthe start of a meaningful preliminary hearing.
  • There have been two fatalities this year both the result of offshore workers falling into the sea from an installation whilst carrying out ‘routine maintenance’, yet we are still waiting to hear if the Procurator Fiscal will hold an FAI into the death of an offshore worker who fell to his death from a platform in June 2011 whilst carrying out ‘routine maintenance’.
  • Reformed preliminary hearings as part of the FAI process would establish terms of reference and disseminate evidence to families of the deceased, reducing delay.
  • Differentiation needs to be made in statute between a pre-hearing meeting and a preliminary hearing as part of an FAI.
  • We seek clarification of the rights of the families of victims and of the relevant trade unions to submit statements to the sheriff in advance of an FAI.
  • The Sheriff’s Final Determination should be given broader powers, including the option to recommendcriminal proceedingsand tangible safety steps to prevent repeats of fatal incident, with which companies are legally obliged to comply with.

FAIs in the offshore helicopter industry

We believe that the experience of the relatives and loved ones of offshore oil and gas workers and crew who have lost their lives in helicopter accidents en route to or from installations in the North Sea are particularly important in making the case for major reform of the FAI process.

Since the introduction of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act in 1976, there have been nine fatal accidents involving helicopters operating in the UK offshore oil and gas industry, claiming the lives of 119 offshore workers and helicopter crew. It is a fact that the safety record of helicopter transport (used in the vast majority of cases to transport the workforce to and from installations in the North Sea) has declined over the last decade, in comparison with the safety record of helicopter operations in the Norwegian sector of the North Sea. The FAI process has, therefore, contributed very little in terms of improving the safety record of a hazardous industry in which fatal (and non-fatal) accidents occur with regrettable regularity.

To further develop this point, historically, helicopter transport in the Norwegian sector of the North Sea was not as safe as that provided for their offshore colleagues in the UK. Between 1966 and 1989 the fatality rate was 4.1 for the Norwegian sector and 3.7 for the UK sector per million person flight hours. This difference continued over the 1990s with a fatality rate of 1.6 in the UK compared to 2.3 in the Norwegian sector between 1990 and 1998.

In the decade between 1999 and 2009, however, there were no fatal accidents in the Norwegian sector (a nil rate) whilst the UK’s fatality rate shot up to 5.6 – a deeply worrying reversal of the historic, downward trend across the North Sea. Since 2009 there have been two fatal accidents involving offshore helicopters, claiming a further 20 lives of offshore workers and helicopter crew.

It seems clear to RMT that the FAI process that has followed these deaths has not reassured or provided emotional closure for the families and loved ones of the deceased. Neither has it helped the industry to avert future fatal incidents. On the contrary, as time has passed since the introduction of the 1976 Act, the safety record of offshore helicopter transport in the UK Continental Shelf has demonstrably declined, as outlined above.

Then we have the final determination on 13th March 2014 of the Fatal Accident Inquiry into the deaths of John Barkley, Paul Burnham, James Costello, Alexander Dallas, Raymond Doyle, James Edwards, Vernon Elrick, Nairn Ferrier, Nolan Goble, Garethwyn Hughes, Richard Menzies, Warren Mitchell, David Rae, Leslie Taylor, Stuart WoodandMihailsZuravskis, the 16 passengers and crew who died when the Super Puma they were travelling in crashed into the North Sea on 1st April 2009. Despite the FAI clearly establishing that there is a case to answer over why a helicopter with detectable flaws in the gearbox mechanism was allowed to fly, the Sheriff failed and indeed was prevented by statutefrom making any further recommendations for a public inquiry or consequential legal proceedings.

As Sheriff Pyle states at page 6 of his final determination in the case of the sixteen deceased, the FAI is:

“....an opportunity for an independent judge to come to his or her own conclusions on the evidence and to present them in the form of findings in a determination. But the determination is not the same as a judgment delivered at the end of a civil proof or a criminal trial. It has no consequences.”

For loved ones to have to wait nearly five years for this confirmation that whatever is in the final determination has no repercussions is distressing.

RMT seek to support reforms that prevent this sort of distressing legal lag but we doubt whether the Scottish Government’s proposals will result in a robust new FAI system that reduces delay whilst improving outcomes for families, workers, society and the Scottish legal system.

FAI delays in workplace fatalities of offshore workers

In June 2011 there was a fatality in the North Sea oil and gas industry when a worker fell from the Shell operated Brent Charlie platform into the sea. RMT were told at the time the worker was carrying out routine maintenance while working on ropes. A report was subsequently submitted to the Procurator Fiscal’s office later in 2011 by the HSE and the police and yet the family, offshore workers and their trade unions still await a decision, over three years later, on whether an FAI will be held into this death at work.

To date there has been no prosecution of anyone for this fatality and no mention of an FAI. At industry safety forums representatives of the deceased worker’s employer, Shellhave told RMT they cannot discuss the circumstances of the case whilst it remains in the hands of the Procurator Fiscal. The Scottish Government must act to resolve these distressing delays that beset the FAI application process.

Since June 2011, there has been a fatality when a worker fell into the sea from the Taqa operated Harding installation in February this year. The RMT were told at the time that the worker was carrying out routine maintenance when the fatal incident occurred.

Regrettably, there was also another fatality involving an offshore worker on 4th September 2014 when a worker employed as a rope technician on the BP operated Unity installation fell to his death when, once again, carrying out routine maintenance (according to the company).

RMT is obliged to ask the Scottish Government what its proposals will do to require the Procurator Fiscal to act to inquire in these circumstances or do more offshore workers have to die carrying out “routine maintenance” before FAIs into these tragic deaths are launched?

Delays and proposals to speed up the FAI process

FAI Timeframes

RMT share the Government’s acknowledgement that the FAI process should be speeded up. However, contrary to Lord Cullen’s recommendation, RMT support the introduction of a six monthtimeframe in which the application for holding an FAI must be submitted, as originally outlined in Patricia Ferguson MSP’s Inquiries into Deaths (Scotland) Bill.

We believe that it is both possible and desirable to introduce such timeframes whilst retaining some flexibility to extend them in prescribed circumstances, without impeding the formal investigation of the incident in question.

RMT support the introduction of a requirement for a preliminary hearing of the FAI to be held within two months of an FAI being granted. That would be a sensible timeframe that would respect the needs of the families of the deceased, as well as acknowledging the public interest in attaining efficient and effective system of FAIs.

Should extenuating circumstances exist, such as ongoing regulatory investigation or difficulty in recovering evidence from the accident site these should be outlined and explained to the families of the deceased at the earliest opportunity, and the details then put into a public statement by the Sheriff.

Lord Cullen’s recommendation supported the view that such timeframes may not improve the quality of the justice dispensed by an FAI. We believe that this does not sufficiently recognise the very low quality of justice, for families of victims or workers in the affected industries, dispensed by the FAI process under the current legislative arrangements. It is disappointing that the Scottish Government has chosen not to include these timeframesin their own plans for legislative reform of the FAI process.

In RMT’s view, the FAI process and theFatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976underpinning it are moribund and in dire need of fundamental amendment to the benefit of families’ access to justice and the safety of workers, particularly in hazardous industries such as offshore energy.

Whilst action to reform the FAI process is welcome, RMT place on record our disappointment at the Scottish Government’s own delayin bringing forward proposals to implement recommendations of Lord Cullen’s 2009 report into the fatal accident inquiry process, despite the Government having officially responded to those recommendations over three years ago.

We also repeat our disappointment at the Scottish Government’s decision to decline to use their legislative plans to adopt the proposals in Patricia Ferguson MSP’s Inquiries into Deaths (Scotland) Bill which RMT regard as a logical extension of the recommendations of Lord Cullen on FAI reform, citing the key factors of family involvement and public interest.

Once again, it appears that the iniquitous experiences of the current FAI process amongst offshore workers, their families, loved ones and trade unions have spurred the Scottish Government to act to address its own delay in reforming this broken legal procedure.We refer, as the Government’s consultation document does, to the fatal accident inquiry into the fatal Super Puma helicopter accident on 1st April 2009 in which fourteen offshore workers and two crew members lost their lives. The FAI hearing was eventually heard in January this year, with the practically meaningless final determination of the Sheriff issued in March.

As expected given the restrictive yet time consuming legislation governing the FAI process, the inquiry provided no closure or reassurance for the families involved and merely served to extend their period of grieving. It is genuinely shocking to consider that the victims’ families had to wait nearly five years for an FAI which culminated insix weeks of deliberationsin court and a meaningless final determination. The FAI process was again exposed as painfully slow, severely restricted in scope and powerless to prosecute, even where causal links to fatalities are established in evidence submitted and examined as part of the FAI, as they were in the case of the deaths caused by the 1st April 2009 Super Puma incident.

Preliminary hearings

RMT agree that reformed preliminary hearings would reduce delay in the FAI process and improve the quality of justice dispensed and safety lessons learned from FAIs. We particularly welcome the Scottish Government’s commitment to expand the role of the Scottish Fatalities Investigation Unit (SFIU) in communicating progress in application for an FAI and subsequent preliminary hearings.

We are concerned, however, that the procedural detail of the reformed preliminary FAI hearing has yet to be drawn up by the Sheriff Court Rules Council (SCRC) and the consultation document does not provide a detailed update on the Scottish Government’s initial response to Lord Cullen’s recommendations 19-21 which all dealt with procedural aspects of the preliminary FAI, such as ensuring the effectiveness of the FAI, fixing the dates for hearing evidence and the matters that the FAI can resolve and circulation of relevant documents by the Procurator Fiscal to families and relevant parties prior to the preliminary hearing.

We seek a further update from the Scottish Government on the progress and likely timeframe within which the SCRC will complete the drafting of the procedural details that will accompany the legislative reform of preliminary FAI hearings. There should at least be a public consultation over those procedural details too.

The Scottish Government’s proposed pre-hearing meetings of experts could work to reduce delay and presumably this would be a pre-hearing meeting conducted before the preliminary FAI hearing. This point requires clarification but, assuming it applies to preliminary hearings and families are kept apprised of points of agreement and disagreement between experts, RMT agree that this would reduce delays in the FAI process.

We also agree that making it easier to move proceedings between sheriffdoms and allowing some procedures to be taken in Sheriff chambers would speed up the process, although this should not be to the detriment of transparency for the families of the deceased or their representatives.

Submission of writtenstatements

We agree in principle with the proposal to permit the submission of written statements to the sheriff in advance of the FAI but seek further clarification of who is entitled to submit these statements which, presumably, may contain evidence and legal argument.

It would also be appreciated if the Scottish Government would confirm that family of the deceased, their legal representatives and the relevant trade unions (in the event of a work related fatality)would all be entitled to submit written evidence ahead of the FAI.

The legislative changes proposed by the Scottish Government in this section would reduce delay in the FAI process, as well as enabling trade unions to engage more meaningfully and effectively on behalf of members and their families who are affected by fatal accidents.

FAI Accommodation

RMT do not support the option of ad hoc locations for FAI hearings, as this makes it more likely for families and their representatives to be inconvenienced by last minute changes in the location of an FAI, as occurred on a number of occasions in the FAI into the 16 deaths resulting from the Super Puma helicopter crash on 1st April 2009.

We support restricting all FAIs to the three proposed FAI centres, although we would like to know which three locations are under consideration. Sheriff courts exclude Aberdeen. We also believe that this restriction to the three FAI centres would only apply to the final hearing and not the preliminary hearing or pre-hearing meetings of expert witnesses.

On benefit of taking FAIs out of sheriff courts would be increased attendance on the final FAI hearing from the families and loved ones of the deceased, although this does depend upon giving sufficient advance notice of dates on which the hearing is to be held and the prevention of last minute changes to either dates or locations.

Sheriffs’ recommendations

RMT support legislation that makes it mandatory for the sheriff’s final determination in all FAI cases to be put on the Scottish Courts Service website, therefore in the public domain and subject to as little redaction as possible. This is clearly in the interest of families of the deceased and the public.

We also agree that sheriffs should disseminatethe final determination and any recommendations in it to the parties to whom such recommendations would apply, as well asthe appropriate regulatory bodies.

What is of major concern to RMT is that we are not convinced that the Scottish Government’s proposals on sheriffs’ recommendations provide the FAI process, which is a judicial process, with the teeth to oblige compliance with or even response to the recommendations contained in a final determination. The consultation acknowledges that compliance with recommendations will remain voluntary and only asks if parties subject to recommendation from an FAI should be required to explain why they haven’t complied.