Meeting of the Parliament (Virtual) 21 January 2021
I, too, pay tribute to Claire Baker for the immense work that she has put into researching, consulting on and drafting this member’s bill, and I thank the Justice Committee for its scrutiny of the bill and the stage 1 report.
Under the Corporate Manslaughter and Corporate Homicide Act 2007, which applies to the whole of the UK, 250 cases have been prosecuted but only nine have resulted in convictions. The number of people killed in Scotland while at work averages 19 per year, but, despite that, the Crown Office and Procurator Fiscal Service has raised no prosecutions.
Currently, in order to bring a prosecution, the “controlling mind” of an organisation must be identified. That is easier to establish in smaller organisations than in larger ones and in corporations, where large and complex management structures often make it hard to identify who in the business or organisation controls the actions that have led to a death.
Section 1 of the Culpable Homicide (Scotland) Bill creates two different categories of statutory culpable homicide that apply to individuals and non-natural persons alike when a death has been caused by recklessness or gross negligence. Section 7(2) grants powers to Scottish ministers to, by regulation and subject to the affirmative procedure, add, remove or modify a description of a non-natural person. That flexibility has been welcomed by some, but others have raised significant concerns about the legal ramifications and possible changes to the criminal law. The law must give certainty, and that flexibility has been viewed by employment law experts as a weakness in the bill.
Although it may be possible to address by amendment the flexibility issue and other issues that the Justice Committee has highlighted, the same cannot be done to resolve the legislative competence issue. The Presiding Officer has ruled that the bill is not within the legislative competence of the Scottish Parliament for the following reasons: it relates to part 1 of the Health and Safety at Work Act 1974, which is reserved; and the bill as a whole relates to the operation and regulation of business associations, which is also a reserved matter.
No one could fail to be moved by or feel sympathy because of the heartbreak suffered by the families of those who left home for work as normal but never returned, having lost their lives due to an accident at work. Consequently, the lack of convictions is certainly a cause for concern. However, the fact remains that the bill has been ruled as being not within the legal competence of the Scottish Parliament. That, in turn, has prompted the Justice Committee to question whether there is merit in the bill proceeding to stage 2, given the limited time available for further consideration in the current session of Parliament. It is for those reasons—disappointing as I know it will be for Claire Baker—that the Scottish Conservatives will not be able to vote in favour of the Culpable Homicide (Scotland) Bill this evening. Instead, we agree with the Law Society of Scotland that post-legislative scrutiny of the 2007 act would establish whether there is empirical evidence to support the criticisms of that act.