Hansard

It has been suggested that those who, for good reasons, oppose the bill somehow do not understand the struggles of, or sympathise with the feelings of, the families whom the tragedies have befallen. I reject that view at the outset. It is precisely because of our concerns for those families whom Claire Baker has—and many others have—spoken about that we consider this to be bad legislation. Passing bad legislation could lead to any prosecutions being overturned, and that is not something to be thought of lightly.

We have concerns about the lack of scrutiny. Scrutiny in this Parliament is incredibly important. Members of the Opposition have told us—quite rightly—day in and day out, that scrutiny of legislation is important. Whether that refers to a Government bill, such as the Hate Crime and Public Order (Scotland) Bill, or to Covid-related regulations, or, as in this case, to a member’s bill, the Parliament exists to ensure that there is adequate scrutiny of any legislation.

The lack of scrutiny is not something that can be wished away—certainly not on the whim that the election might be postponed. As things stand, we very much expect the election to go ahead to its timetable. The lack of scrutiny simply cannot be ignored, and it is important that all parliamentarians consider that issue.

In addition, significant concerns have been raised by a number of stakeholders. For example, the General Medical Council has raised concerns of unintended consequences for the medical profession and for doctors’ confidence in reporting and learning from medical errors. That is not an insignificant concern. We all appreciate the work of our healthcare professionals, particularly during the pandemic. To pass a bill that could have unintended consequences for those national health service workers without taking any oral evidence whatsoever from them surely cannot be right.

The competence issues are also of grave concern. A number of Labour members—and Mr Finnie, I noticed—suggested that we should simply push the boundaries, as we have done with other pieces of legislation. However, the difference is that, in dealing with legislation in which the Government has pushed the boundaries, and when there has been some dubiety about whether it was within legislative competence, our concerns have not been the same as those that we have with this bill. We are entirely convinced that the bill is outwith legislative competence. That is the Presiding Officer’s view, too.

I also note that, when Claire Baker gave evidence to the Justice Committee, she accepted that the issue of legislative competence is an area for debate. She said that the Parliament should be “ambitious and brave”. However, the convener rightly pointed out that

“the terms of the Scotland Act 1998 do not refer to ambition, but to purpose and effect.”

He concluded:

“I completely understand the ambition, but ambition is an irrelevant consideration. The relevant considerations are purpose and effect, and both purpose and effect speak to health and safety, which is reserved.”—[Official Report, Justice Committee, 6 October 2020; c 11-12.]

It is also the Scottish Government’s view that the provisions in the bill that would give effect to the policy intention behind it are firmly outwith legislative competence.

On the issue that James Kelly raised in relation to section 29(4) of the Scotland Act 1998, it is very much the Government’s view, as we set out in our response to the committee’s stage 1 report, that

“the provisions in the Bill fail the test in section 29(4) of the 1998 Act.”

There are a number of policy concerns, which, again, I will not rehearse. I think that it is inappropriate in a Parliament that is designed to ensure that there is adequate scrutiny of legislation not to take appropriate evidence when such significant policy concerns are raised.

I appreciate that those who support the bill believe that the current criminal law is inadequate. They cite the lack of prosecutions under the UK Government’s Corporate Manslaughter and Corporate Homicide Act 2007 in that regard. However, the lack of prosecutions under the 2007 act does not necessarily lead to the conclusion that that legislation is not fit for purpose.

Every fatality at a place of employment in Scotland is investigated by the Crown Office and Procurator Fiscal Service’s health and safety investigation unit as a potential corporate homicide. The very nature of such deaths means that detailed and lengthy investigations, often involving technical and medical issues that require expert opinion, are needed.

Health and safety criminal offences have been committed that have resulted in custodial penalties. In March 2015, Guthrie Melville, a shellfish boat skipper was sentenced to nine months—