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.
NOTE
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
[1] This
Opinion follows upon continued first hearings in two petitions for judicial
review. Dealing with those petitions in
the order in which they were raised, the petitioner in the first petition is
Mrs. Roseleen Kennedy. She is the daughter
of Mrs. Eileen O'Hara, who lived in
[2] The
petitioner in the second petition is Mrs. Jean Black. She is the widow of the Reverend David
Charles Black, who lived in
[3] In this Opinion, I will refer to Mrs. Roseleen Kennedy as "the first petitioner", to Mrs. Jean Black as "the second petitioner", to the Lord Advocate as "the first respondent" and to the Scottish Ministers as "the second respondent".
[4] In
her petition the first petitioner summarises the medical history of the late Mrs. O'Hara. During 1985 and again on
[5] When
Mrs. O'Hara died on
[6] In
her petition the second petitioner summarises the medial history of her late
husband, the Reverend David Charles Black.
Mr. Black was a haemophiliac. During
the late 1980s and subsequently, he received treatment by way of Factor VIII
blood products and blood transfusions, whilst he was under the care of the NHS in
[7] When
Mr. Black died a post-mortem examination was instructed by the Procurator
Fiscal at
Infection
with the Hepatitis C virus in Scotland
[8] It is a matter of public record that over a period of years from around 1980 a large number of individuals, who had been under the medical care of and receiving treatment from the National Health Service in Scotland, received blood transfusions, blood products and tissue transfer, which infected them with the Hepatitis C virus. Over 4000 individuals were infected. Some of those individuals were haemophiliacs. Others were not. A number of those individuals have died, including Mrs. O'Hara and Mr. Black. Amongst those who remain alive, some have developed serious medical conditions, which have caused continuing pain and disability and have led to reduction of life expectancy.
[9] It is also a matter of agreement that the circumstances in which those individuals came to be infected with Hepatitis C virus, the consequences of their infection and the National Health Service's handling of the public health issues involved have given rise to public concern, including continuing calls in the Westminster Parliament, in the Scottish Parliament and in the media for the holding of a public inquiry in Scotland. Those calling for an inquiry have included Mr. Frank Maguire, a principal in the firm of solicitors that acts for both petitioners. Those calling for a public inquiry have maintained that a number of issues of public concern should be investigated at a public inquiry. These include (a) the failure of the Scottish National Blood Transfusion Service ("SNBTS") and the NHS in Scotland to introduce any screening test for blood donations used in the preparation of blood products and for blood transfusions in Scotland until 1 October 1991, (b) the failure on the part of the NHS in Scotland to introduce prior to April 1987 any form of heat treatment in the preparation of blood products for routine clinical use; and (c) alleged systemic failures on the part of the NHS in Scotland in (i) investigating the reasons why the widespread infection of individuals with the Hepatitis C virus from blood and blood products occurred, (ii) locating and diagnosing those individuals who might have been infected with the Hepatitis C virus, (iii) ensuring that the individuals concerned received the appropriate treatment, counselling and support and (iv) taking steps to minimise the risk of such individuals cross-infecting others with the Hepatitis C virus.
[10] The SNBTS has always been a public body. It is currently a
division of the Common Services Agency, which is a Non-Departmental Public Body
constituted under the provisions of the National Health Service (Scotland) Act
1978. The Common Services Agency is known as NHS National Services Scotland and
is accountable to the Scottish Government. Its statutory duties include the
provision of supplies of human blood for blood transfusion and the production
of blood products (see Article 3(a) of the National Health Service (Functions
of the Common Services Agency) (
[11] There was, as I have indicated, no dispute during the hearing before me as to the existence of a level of public concern about the circumstances in which individuals had come to be infected with the Hepatitis C virus and the consequences for such individuals of having developed such infection. That public concern is also clear from the contents of certain of the productions placed before me, including the "Report on Hepatitis C and the heat treatment of blood products for haemophiliacs in the mid-1980s" prepared by officials within the Scottish Executive's Health Department during 1999-2000, the "Report of the Expert Group on financial and other support" dated 2003, which was commissioned by the Scottish Executive and prepared by a group chaired by Lord Ross, the retired Lord Justice Clerk, and Official Reports of meetings of the Health Committee of the Scottish Parliament (and papers placed before that Committee). On 18 April 2006, the Committee took a decision calling upon the Scottish Executive to hold a public inquiry into matters pertaining to Hepatitis C in Scotland, with particular reference to the adequacy of the steps taken, once the screening of blood donors had been introduced in 1991, to trace those patients in Scotland who had previously been supplied by the SNBTS and the NHS with blood transfusions and blood products derived from infected donors.
[12] The first of these reports was published in October 2000, after
the Minister for Health and Community Care in the Scottish Executive had asked Scottish
Executive officials to investigate the facts surrounding the heat treatment of
blood products for haemophiliacs in the mid 1980s. The officials were asked to
examine the evidence available to assess, amongst other issues, "whether
patients in
[13] From these papers it would appear that amongst the principal issues
that give rise to general public concern are (i) why the NHS in Scotland did
not introduce heat treatment for blood products in Scotland until April 1987,
which was approximately 18 months later than the Bio Products Laboratory in
England had introduced such treatment for blood products in England, and (ii) why
the SNBTS had delayed the introduction of screening blood donations in Scotland
for the Hepatitis C virus until September 1991, in particular when such
screening had been introduced in certain parts of England with effect from 1 July
1991. Later in this Opinion, in para. [130], I refer to the factual issues as
to when Mrs. O'Hara and Mr. Black may have become infected with the
Hepatitis C virus.
[14] I should also refer briefly to an inquiry that is currently
underway in
"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".
[15] Lord Archer is being assisted in the inquiry by Lord Turnberg,
immediate past President of the Royal College of Physicians, as Medical
Assessor, by Dr Judith Willetts, Chief Executive Officer of The British Society
for Immunology and by Dr Norman Jones, Emeritus Consultant Physician at
[16] Some time after the hearings before me concluded, the media
carried reports that the second respondent had given a commitment to set up a
public inquiry relating to the infection of individuals with the Hepatitis C
virus. I arranged a By Order hearing so that I could be fully informed what the
second respondent's intentions are. These were explained to me at the By Order
hearing on
[17] At the By Order hearing it was also made clear that the parties wished me to finalise my Opinion, notwithstanding the second respondent's commitment to hold a public inquiry.
Steps taken by the
petitioners to obtain public inquiries into the deaths of Mrs. O'Hara and Mr.
Black
[18] I now turn to the history of events as far as the calls made
for inquiries into the deaths of Mrs. O'Hara and Mr. Black and the
raising of the present petitions are concerned.
On 26 May 2004, the first petitioner's solicitor wrote on her behalf to
the Lord Advocate calling upon him to request that a FAI be held in terms of
section 1(1)(b) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act
1976 ("the 1976 Act") into the circumstances of the death of the Mrs. O'Hara. The letter indicated that the first
petitioner's solicitor would regard the holding of a FAI as sufficient to fulfil the State's
obligation in terms of Article 2 of the EU Charter of Fundamental Rights. The letter gave notice to the Lord Advocate
that if he failed to respond to the letter within 14 days, or in the event that
he decided that a FAI should not be held, the solicitor would seek instructions
to raise proceedings for judicial review.
Prior to the date of the letter,
[19] On
[20] Following dispatch of the letters of
[21] By letter dated
[22] First hearings in the petitions took place on
[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:
· 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'
· continuing Scottish National Blood Transfusion Services (SNBTS) investigations of new cases;
· testing for Hepatitis C;
· communication with patients;
· 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. "
[30] After the letter of
[31] Whilst that process was underway, by interlocutor dated
"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."
[32] The petitioners refrained from doing so. By letter dated 31 January 2007, addressed to the solicitor to the Scottish Executive (now the Scottish Government), who acts for both respondents, the solicitors for the petitioners intimated that senior counsel for the petitioners considered that the only issue that should be debated at the continued first hearings was whether or not the actions of the respondents since the deaths of Mrs. O'Hara and Mr. Black had been compatible with the obligations on them under Article 2 of the European Convention on Human Rights in relation to the each of the petitioners. It was explained that senior counsel took the view that the other issues raised by the respondents were premature and/or academic, pending a ruling by the Court as to whether the respondents had acted in breach of Article 2.
[33] As set out in their written pleadings the orders sought by the petitioners in each of the petitions are in the following terms: -
"(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."
[34] In the event, in the written submissions which were lodged on behalf of the petitioners, to which senior counsel for the petitioners referred during his submissions before me, the motions made on behalf of the petitioners were as follows:-
(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."
[35] During the continued first hearings senior counsel for the respondents invited me to deal with all the issues specified in the Lists of Issues previously lodged on behalf of the respondents.