Hansard

I begin by saying that the Scottish Government has a great deal of sympathy with families who have lost a relative while attending their workplace. We appreciate that the aims of the bill will be important to those who are affected. I thank Claire Baker for reading out the personal testimony of one family, and I know that she is engaged with a number of families about the bill.

Where the evidence shows that such deaths have happened because of organisational or management failure, I fully support law enforcement agencies taking robust and effective action, if they consider that that is appropriate in a given case, using existing laws.

I know that those who support the bill believe that the existing criminal law is inadequate. The Scottish Government has made it clear that current legislation could be improved by new devolved legislation, and we will consider what other steps should be taken. Let me say from the outset that, although the Scottish Government is unable to support the bill—I will go into detail about the reasons for that shortly—I have already spoken to Claire Baker to say that, dependent of course on election results, I would be happy to discuss these matters in the next session of Parliament with her to see whether we can address the concerns that she raises in a way that is within the Parliament’s competence and which would enable any bill or proposals to be afforded the appropriate scrutiny.

I appreciate the constraints that the Justice Committee was subject to in undertaking its stage 1 scrutiny, as we have just heard from the convener. I know that it made no recommendation to the Scottish Parliament on the general principles of the bill. In the absence of full scrutiny, the Scottish Government’s ability to analyse the bill has been limited, as our views on it would have been shaped by a full scrutiny process. For example, no oral evidence was taken from the Scottish Government, the Crown, trade unions or businesses. That is not at all a criticism of the committee, as it has a full workload, which is due overwhelmingly to the Scottish Government’s legislative timetable.

However, on the basis of our examination, I can make the following remarks. The Scottish Government notes that the bill has obtained a negative legislative competence certificate from the Presiding Officer. Based on a very preliminary analysis of the competence of the bill, the Scottish Government is also of the view that provisions in the bill that give effect to the policy intention behind it are outwith the legislative competence of the Scottish Parliament. We are also of the view that it would be difficult to amend the provisions of the bill at stage 2 so as to bring it within competence without significantly changing the policy intention of the bill.

Any doubt about competence could call into question any future prosecutions made under the bill, if passed, and we need to consider that carefully. That would not be a desirable outcome and it might lead to the Lord Advocate having no other option than to make a reference to the Supreme Court as to the legislative competence of the bill under section 33 of the Scotland Act 1998.

The Scottish Government also has a number of policy concerns. The first is the way in which the bill seeks to operate within the common law of culpable homicide. With the Scottish Law Commission’s review on homicide under way and due to report in 2023, the Scottish Government is concerned about any piecemeal reform of the law. It is preferable that reform of culpable homicide as it applies to organisations should be considered once the reform of homicide in criminal law is in place, although I accept that that is not definitive and it does not have to be the case.

Our second policy concern is about the lack of clarity around how the process of aggregation under section 2(3) of the bill would operate. In particular, it is not clear how a jury would assess when such individual actions that when considered separately do not constitute culpable homicide are somehow sufficient—as the bill refers to it—when considered together for these purposes to provide that an organisation has committed culpable homicide. The bill does not set out what tests would apply.

In our view, there is also a lack of clarity around how the rules under section 6 art and part operate, and whether that approach is correct and fair. It would appear that provisions would apply even when the organisation has been found guilty only on the basis of an aggregation under section 2(3). Thus there is at least the possibility that an individual could be found guilty, art and part, even when their actions, viewed in isolation, do not constitute any criminal offence whatsoever.

There is also a lack of clarity around the way in which the bill would interact with existing provisions in the UK Government’s Corporate Manslaughter and Corporate Homicide Act 2007.

In conclusion, the Scottish Government is happy to consider any proposals for reform to the law in this area, if they can be developed within the competence of the Scottish Parliament. It is not a lack of political will, and I am disappointed that our response has been characterised in such a way. There are clear doubts about the legislative competence of the bill, and they are not just theoretical; they could call into question any future prosecutions made under the bill if it is passed.

Alongside the competence concerns, the Government is concerned about piecemeal reform of the law, we have policy concerns, and we are concerned that the bill has not had the detailed scrutiny that one would expect at stage 1. For all the reasons that I have given, the Scottish Government finds itself unable to support the bill.