I am very proud to be introducing this debate on the Culpable Homicide (Scotland) Bill today.
Families across Scotland who have suffered the death of a loved one at work have fought hard for justice. I want their voices to be heard and us to commit to use the powers of the Scottish Parliament to fully recognise when crimes have been committed. If culpable homicide can be identified as the cause of death, it should not matter whether that is by the actions of an individual or a small or large company. The treatment under the law should be equal, and that is what the bill proposes.
Natalie Woods McKeown is a supporter of the bill who came to Parliament to speak to MSPs. I thank all MSPs who supported the bill. Here is Natalie’s experience:
“On April 16th 2002, our dad John Woods went to work and never came home.
His employers were never charged with any offence and we were never given an explanation why this was.
Nearly 19 years later, we miss our dad every day, we must live with the injustice of losing a loving dad with very little understanding of what happened and why no one was held to account.
Our family deserves justice.”
We should be listening to voices such as Natalie’s.
I thank the Justice Committee for its stage 1 report. Although I appreciate the difficult circumstances that we are all working under, it is frustrating that the bill was not afforded suitable time in the committee to hear from families and trade unions that have long campaigned for the legislation.
While we have failed to tackle this long-standing injustice, the most recent annual figure shows that, on average, 19 people are killed each year in work-related incidents in Scotland. That is the highest rate in the UK, according to the Health and Safety Executive. The most recent figure recorded is 29 deaths in 2018-19, and that excludes marine, air, rail and road investigations.
The bill will not amend any health and safety legislation, but it can be a lever to ensure that employers take their responsibilities seriously. At present, common law determines how culpable homicide applies to individuals. It can be possible to convict the owner of a small business when an employee has lost their life due to the business’s neglect. However, we need to be honest and recognise that there is no expectation that a large business can be successfully pursued through the criminal courts. The current legislation is inadequate and the law is applied inequitably.
I am very disappointed by the Scottish Government’s response and the lack of support for the bill not least because, when in opposition, many Scottish National Party MSPs, including the Deputy First Minister, supported Karen Gillon’s very similar bill. In 2006, Nicola Sturgeon wrote to Families against Corporate Killers to say:
I know how she feels. To support the principles of the bill in opposition and then not take action in government when the SNP has power leaves the SNP open to accusations of being supine. There is still time this afternoon to change that.
It is perhaps not surprising that the Scottish Government’s response to the committee’s stage 1 report defends the Corporate Manslaughter and Corporate Homicide Act 2007. The Government has previously claimed that that is an effective deterrent that sends a robust message. Along with affected families and the trade union movement, I strongly disagree with that, and believe that the fact that there has not been one prosecution in Scotland under that act in the 13 years since it was passed while deaths at work have increased shows the inadequacy and ineffectiveness of the legislation. Is the cabinet secretary really confident that the 2007 act could be used to respond to other tragedies, such as the Transco gas explosion? There is no evidence to support the argument that the 2007 act bypasses the Transco loophole. The 2007 act and the senior management test are not working, and we can use the Scottish Parliament’s powers to change that.
I acknowledge that the Presiding Officer has given a negative legislative competence certificate. I urge the Scottish Government to recognise that there is a strong counter view to that: that the bill is clearly concerned with Scottish criminal law, which we have responsibility for, and that section 29(4) of the Scotland Act 1998 sets out the provisions for legislating in the area. The bill does not legislate on health and safety, and we have a responsibility to take action.
The Scottish Government has previously challenged the Scottish Parliament’s legislative competence on the minimum price for alcohol and defended that to the last, and it has more recently proceeded with the UK Withdrawal from the European Union (Continuity) (Scotland) Bill, which also had a negative legislative competence certificate. The strong words from Pat Rafferty of Unite Scotland express the anger and disappointment of the trade union movement. He said:
“To suggest that the Bill is not competent is not only misleading but factually incorrect. We believe that the issue comes down to political will. … in light of the Scottish Government's pathetic lack of will to use the powers already at its disposal, including criminal justice law, it is up to the Scottish Parliament to take a progressive stance.”
The Scottish Government has argued that I should wait for the Scottish Law Commission’s review of homicide. That review is not due to conclude until 2023. The Government’s response also makes it clear that it is not considering the areas that are covered by my bill. My decision to introduce legislation has been described by the Government as a failure to give consideration to that option. What is a failure is the fact that a family lost their lives in the Transco gas explosion and there was no conviction of culpable homicide. It is a failure that Scotland’s rate of workplace fatalities is not reducing but is on the increase, and it will be a failure of political leadership if the bill falls today.
This is a short debate and, in the time that I have, I have sought to set out the reasoning for the bill and to respond to the Scottish Government’s points. I appeal to members across the Parliament, many of whom have supported the bill to this stage, to ask themselves how long families have to wait for justice and to support the bill through to the next stage.
That the Parliament agrees to the general principles of the Culpable Homicide (Scotland) Bill.
The Justice Committee is awash with legislation. Today, we have published our stage 1 report on the Domestic Abuse (Protection) (Scotland) Bill. Next week, we have stage 2 of the Defamation and Malicious Publication (Scotland) Bill. Very soon thereafter, we will have stage 2 of the Hate Crime and Public Order (Scotland) Bill. All of that is Government legislation. That is so time consuming that, since I became the committee’s convener last summer, we have had no opportunity to undertake any inquiry work of our own. However, we have been able—albeit briefly—to consider two members’ bills, of which the bill that we are considering is the first to come to the chamber.
On 6 October 2020, we took evidence from Claire Baker, who is the member in charge of the bill, and from Patrick McGuire of Thompsons Solicitors, and we published a short report on 13 November. We asked for the Government to respond to that report before today’s stage 1 debate, which it did, on 12 January. I thank the cabinet secretary for that. I also thank Claire Baker and her team for the constructive and helpful way in which they engaged with the committee.
Our report outlined what the bill does and summarised the policy intentions that underlie it, and I need not repeat here what we have already heard about those matters from Claire Baker this afternoon. The report also outlines the reasons why the Presiding Officer has stated that, in his view, the bill
“would not be within the legislative competence of the Scottish Parliament”,
and we noted that the member in charge of the bill respectfully disagrees with that view.
Given the constraints under which the Justice Committee is working, which have been imposed not only by the burden of Government legislation but by the impact of the pandemic, we were able to reach only the following conclusions. First, members’ bills are an important part of the Parliament’s work, and this bill in particular is very important indeed to a number of grieving families in Scotland who have lost loved ones at work. Secondly, the number of cases that have been successfully prosecuted in Scotland under existing corporate manslaughter and corporate homicide legislation is vanishingly small, and that has a devastating impact on families who are affected. Thirdly, the committee therefore has some sympathy with the policy intentions that underpin the bill; however, a number of issues have been raised in relation to the bill, both in the committee’s questioning and in Claire Baker’s consultation on the bill. Fourthly, the dispute about the bill’s legislative competence could lead to a challenge in the courts, were the bill to be enacted. On the basis of those considerations, the committee made no recommendation to the Parliament as to the general principles of the bill.
As I mentioned, we asked the Government to respond, and the cabinet secretary’s response was received earlier this month. It makes plain, as I am sure that we will hear in a few moments, that the Scottish Government has a number of policy and legal reservations about the bill and cannot support its general principles.
The Justice Committee expressed no final view on the bill but, in light of the evidence that we took and of the cabinet secretary’s detailed and considered response to our report, I find myself, regrettably, unable to support the general principles of the bill, and I will vote accordingly at decision time today.
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.
I am pleased to have the opportunity to speak in the debate.
The Scottish Conservatives will vote against the principles of the Culpable Homicide (Scotland) Bill at decision time, but that phrase is interesting, because I have sympathy with the principles of the bill and with those who have lost loved ones.
Claire Baker, who introduced the bill, did so on the basis—the principle, if you like—that a person or organisation that causes a death can be found guilty of a suitable offence and to make clear who is responsible. The policy memorandum is succinct that its intention is to make clear in statute, although not in substitution for the common law offence of culpable homicide, what the offence is, what its elements are and who may be liable. That, the member says, would
“reflect the moral opprobrium that society attaches to taking a life” while driving behaviour change, particularly in relation to safer working environments for employees. That is admirable, but we cannot vote the bill forward today.
First, the member knows that I am deeply uncomfortable with the legislative timetable in the justice portfolio and its impact on our ability to scrutinise proposed legislation. The convener described the committee as “awash” with legislation, and he is right. The Justice Committee felt unable to make a recommendation to the Scottish Parliament on the general principles of the bill, because we had only one meeting in which to review it. In that meeting, we heard from only the member and one other about a bill that, in its effect, could be groundbreaking and would require the utmost care.
There is very limited time left for consideration and scrutiny in this session and I cannot countenance voting something of such import through.
Secondly, on 1 June 2020, the Deputy Presiding Officer issued a clear and unambiguous statement:
“In my view, the provisions of the Culpable Homicide (Scotland) Bill would not be within the legislative competence of the Scottish Parliament.”
On the same day, the member said that it was her view that the bill would fall within legislative competence, but, in contrast to the DPO, she gave no reason for her view.
I also have regard to the cabinet secretary’s letter of 12 January, in which he persuasively contends that the bill is not within competence and raises the concern that, were the bill to pass, there could be a successful challenge. He set out the implications of that in his speech just now.
Others will look in detail at the policy concerns inherent in the bill, including the significant danger of unintended consequences, so I shall finish by simply referencing the Scottish Law Commission’s review.
I remind members that I am a practising solicitor with membership of the Law Society of Scotland. I find myself in agreement with the Law Society’s view that, although a considered and detailed review of the law on culpable homicide is necessary, that already forms part of the work that is currently being undertaken by the SLC with its review on homicide.
The Law Society reassures us that when the SLC report is issued, it will provide a set of recommendations and a collection of evidence upon which to proceed with the reform of the law in this area. As well as providing authority and ensuring legislative competence, that would avoid a piecemeal approach to amending the crime of culpable homicide.
I understand the member’s view that it has taken some time and that, even following the report, there will be a time delay until legislation. However, I cannot help but conclude that the SLC is the best and most appropriate body to be considering the matter, in order that when the Parliament comes to consider any bill, it will do so in the context of a full review that deals with any legislative competence issues, and it will be easy to challenge any criticisms of a piecemeal reform.
In summary, the Scottish Conservatives have sympathy with the families who have lost a relative at the workplace and appreciate the member’s intentions, but we will vote against the principles of the bill at decision time.
I begin by paying tribute to Claire Baker. Introducing a member’s bill takes tenacity and hard work and she has displayed both.
The bill recognises that too often people die at work due to negligence, and all too often no one is held to account. For the families, it is heartbreaking. To lose a loved one is devastating, but to know that those who caused the death due to recklessness or gross negligence are not being prosecuted must be unbearable. They cannot get closure.
Louise Taggart lost her brother and said:
“Far too often, families like mine who have been bereaved by work are left to feel that we have failed our lost loved ones, because the justice system has utterly failed us!”
Neither does the situation enforce adequate safety standards. If companies are not held to account, they are actively being encouraged to cut corners, which puts their workers’ lives at risk. There is an offence of corporate homicide, but not one person has been convicted under it in more than 12 years. That is despite the fact that an increasing number of people are dying at work due to negligence.
Roz Foyer, the general secretary of the Scottish Trades Union Congress said:
“The Bill is vital to workplace safety in Scotland. The 2007 Act is not working and it is vital that legislation is passed that can be effectively applied to larger organisations.”
Yet, the Scottish Government is doing nothing. The current situation is unacceptable and Claire Baker’s bill tries to address it.
Workplace deaths are sadly increasing in number and there are more in Scotland than in the rest of the UK, so the bill is desperately needed. It is supported throughout the trade union movement and by families who have lost loved ones due to unsafe working conditions. It is hypocritical of the Government, whose members supported the proposal to legislate when they were in Opposition, to choose to vote the bill down now that it is in power. The issue is far too important to play politics with and I urge the Government to change its tack and support the bill at stage 1.
I also find it unacceptable that the Government will vote down the bill simply because there has not been enough time for scrutiny. That is not to say that we do not need scrutiny—we do. If there is not time to carry out that scrutiny during stage 2, then the bill will run out of time and fall. If there is time, then scrutiny will take place before amendment, and we can make a final decision on the amended bill at stage 3. There are enough checks and balances in the system to allow the bill to pass tonight and be properly considered by the Parliament.
The general principles of the bill and what it is trying to achieve are sound and that is what we are voting on tonight. Therefore, if members believe that families who lose loved ones due to the recklessness and negligence of their employer need redress and closure, then they need to support the bill. If the Government cannot get control of Covid-19 and the election is delayed, there will be ample time to scrutinise the bill; if not, the bill will run out of time and fall. We lose nothing by supporting the bill at stage 1 and families and workers have justice to gain.
I leave you with the words of Louise Taggart:
“It is time for this whole Parliament to unite and show leadership and help put an end to future work-related heartbreak: to prevent other 26 year old men, like my wee brother, with their whole lives ahead of them, from going to work of a morning and not making it home.
Taking forward these proposals is about justice, it’s about saving lives, it’s about protection of family members. Families deserve justice. Families expect you to act without any more dither and delay, putting aside party politics.”
I urge members to support the bill at stage 1.
There is no dubiety that it is a complicated area of law. I refer members to the Law Society of Scotland’s briefing, which has an appendix with the subheading, “a brief outline of the existing law which seeks to emphasise its complexity.”
The complexity of the law is readily accepted, but we cannot wait for the Scottish Law Commission’s review. The situation is untenable. The status quo does not deal with the realities of the situation in relation to workplace deaths.
I was elected to push the boundaries of issues and I think that Claire Baker is right to say that the bill is within the legislative competence of the Scottish Parliament. She is also right to highlight those issues where the Scottish Government has pushed the boundaries of legislative competence, namely in the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill and the Alcohol (Minimum Pricing) (Scotland) Act 2012.
Patrick Maguire of Thomson’s Solicitors, and Scottish Hazards for their outstanding campaign work. Reference has been made to Transco. We do not have time to go into detail in this debate, but we know that Transco was found to have
“shown a complete and utter disregard for the public.”
The charges of culpable homicide were, however, held as irrelevant and were subsequently dismissed.
The member believes that we must act and I share that belief. We must act by using the powers of the Scottish Parliament.
The Scottish Government’s response to the bill says that the
“lack of prosecutions under the 2007 Act does not necessarily lead to the conclusion that it is not fit for purpose.”
I thoroughly disagree with that point.
The Scottish Government also highlights the legal term, the “identification principle”, suggesting that there is a significant danger of unintended consequences. Once more, I utterly disagree with that point. Is not the purpose of Parliamentary scrutiny to address the identification principle head on to ensure that there are no unintended consequences? To veto the bill at this stage and not allow the debate to continue and the proposals to be refined seems selective and disappointing. I am also frustrated by the limited time that we have to discuss the issue.
Patrick Maguire said:
“We say that, if a responsible person—such as a supervisor or manager, to whose level authority has been delegated down within the company—acts recklessly or causes a death through a gross breach of duty of care, that individual forms the guilty mind, because they are acting as part of the delegated authority. The company is also responsible”. —[
, 6 October 2020; c 8.]
There is e xtensive support for the bill. The bereaved loved ones do not want expressions of sympathy—they want action. Most importantly, they want their Parliament to act on this significant failing. I hope that that is what members will do at decision time.
In customary fashion, I thank Claire Baker for introducing the bill. As I said in relation to the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill, which the Parliament passed earlier this week, no one should underestimate the work that is involved in introducing a member’s bill.
Although the Scottish Liberal Democrats cannot support the bill as proposed, for reasons that I will come to shortly, I make it clear that the issues and concerns that Claire Baker has highlighted through her bill are legitimate and require to be addressed. Indeed, I acknowledge the earlier campaigning and efforts of my friend and Claire Baker’s former colleague Karen Gillon, which led to the Corporate Manslaughter and Corporate Homicide Act 2007. It was recognised at the time that the act did not go as far as Karen Gillon and others had wanted, but a bridgehead was established.
As we know, the existing offence of corporate homicide, which was introduced by the 2007 act, has yet to be prosecuted in Scotland, so I recognise entirely why Claire Baker is seeking to strengthen what are seen to be deficiencies in the current law. I understand the frustration that the 2007 act appears to set the bar for prosecution relatively high, particularly when it comes to attributing a breach to individuals within the senior management of larger companies or organisations.
However, as the Justice Committee heard during the limited evidence that we took on the bill, there are serious questions about its legislative competence. The Presiding Officer has made clear his position in terms of the reserved nature of health and safety legislation and the law relating to corporations. Whatever our respective positions on where those powers should lie—I note the comments by John Finnie, Claire Baker and others about how we might test that at stage 2—I cannot see how the issue can be wished away in order to allow the bill to pass to stage 2.
There is certainly a strong case for reviewing the 2007 act, as the Law Society has suggested. Indeed, at the start of a new parliamentary session, before Government bills begin appearing, there could be an ideal opportunity for a successor Justice Committee to undertake such post-legislative scrutiny. If it were to do so, I am sure that the consultative and other work that Claire Baker has carried out would be invaluable in informing those deliberations and identifying potential ways forward. I also hope that the Scottish Law Commission, which is carrying out work on the law on homicide, might usefully look at that area in particular.
At this point, however, much as the Scottish Government has concluded, I am not persuaded of the case for passing the bill to stage 2, particularly given the workload pressures that are already on the Justice Committee in dealing with the legislation that is before it.
Nevertheless, like Karen Gillon before her, Claire Baker deserves huge credit for ensuring that a light continues to be shone on culpable homicide. That makes it more likely that the concerns that she quite rightly raises on behalf of the families who have been affected, and the wider public, will ultimately be addressed.
Culpable homicide legislation needs to be updated, and the bill has been introduced with the intention of doing that. Much of the case law and, indeed, the language that is used when talking about culpable homicide dates back to a time when we had the death penalty for murder. However, the bill, which seeks to amend the law by creating two forms of culpable homicide, deals with only one aspect of homicide law and attempts to modernise it without addressing wider issues that might need reform.
The Scottish Law Commission has launched an extensive review into homicide law, which is due to be completed by 2023. It will assess the underlying principles of, and the boundaries between, the crimes of murder and culpable homicide, and the psychological element that is required for commission of the offences.
The commission also aims to review the nature, scope and definition of the main defences that arise in homicide cases, including self-defence, provocation and diminished responsibility.
That important and comprehensive review might well show that there is a need for current laws to be improved or supported by new devolved legislation. If that is the case, the Scottish Government should, at that point, consider introducing new legislation.
Every workplace fatality is a tragedy for that person’s family and friends, and it can be traumatic for work colleagues, so I greatly sympathise with the bill’s intentions. That said, before completion of the commission’s review, the bill risks allowing a premature and piecemeal approach to be taken to reform. Any reform of culpable homicide as it applies to organisations should be considered only once reformed homicide criminal law is in place.
The bill was introduced on 1 June 2020. We would normally have expected it to have, by this stage, been subjected to careful scrutiny by the Justice Committee, and the Parliament to have received the recommendation for further action. In its stage 1 report on the bill, the Justice Committee warned that its scrutiny had been significantly constrained, as we heard from Adam Tomkins and Liam Kerr. Understandably, lockdown restrictions resulted in a delay to the committee’s work programme, and its exceptionally busy schedule had an impact on the time that was available to scrutinise the bill. Although that was nobody’s fault, the upshot is that the committee has not been able to scrutinise the bill to its usual high standard, or to make recommendations based on that scrutiny.
Even so, the committee raised significant concerns, with which the Presiding Officer has agreed, around legislative competence and policy in respect of the bill. Simply wanting the bill to be competent does not, sadly, make it so. There is a need for further and more in-depth scrutiny, which suggests that the bill has been brought to the chamber prematurely.
As I mentioned, I am sympathetic to the intentions behind the bill, and I thank Claire Baker for her hard work in bringing it to stage 1. I realise how frustrating it must be for her that it does not have greater support today. However, it would be irresponsible for us to pass such a bill without appropriate scrutiny or full understanding of the consequences. Although it can be tempting to rush legislation through, in particular on important and emotive issues, we must ensure that it is comprehensive and complete, that it holds up to scrutiny and that it is competent and will deliver. Sadly, the bill does not fulfil those criteria, therefore I cannot support it.
A key issue, on which many members have touched, is whether the measures that the bill aims to put into law fall outwith with the competence of this Parliament. Indeed, it is already considered that they do. Without a well-reasoned explanation of why that view is wrong, it is difficult to deal properly with the bill at this late stage in the current session of Parliament. It is a matter of concern that much time has already been spent—or, as some might say, entirely wasted—during this session on measures that have had competence, and on others that have been of dubious competence.
Another key point, which is unrelated to the bill itself, concerns the current circumstances, of which we are all too painfully aware, and the various measures that have been put in place as a result. Of necessity, those measures impinge on and, to a very real extent, prevent proper exercise by us, as MSPs, of our democratic functions, and prevent carrying out of our responsibilities.
To the extent that those functions can be exercised at present, doing so adequately is neither easy nor quick, including for the Justice Committee. Virtual meetings and online communication are not at all equivalent to meeting in person, and it is clear that information technology solutions do not provide equivalence at any level. I recall visiting a tech hub in the before time—as some people refer to life pre-Covid—and being told by a highly successful IT entrepreneur that when he really wanted to get something sorted out, he got everyone together in a room, because online meetings just do not do it.
It is important, as other members have emphasised, to recognise that the bill’s intentions are well meant. The onus must always be on individuals and organisations to act in responsible ways, which is why the law already recognises that, through the “controlling mind” principle. Imperfect though the current state of affairs is, the matter requires to be addressed very carefully indeed.
Given the circumstances that we face as we come to the end of the current legislative session, the matter would perhaps, if it is thought appropriate to do so, best be considered and acted on in the next session of Parliament.
Scottish Hazards, along with trade unions and campaign lawyer Patrick McGuire from Thompsons Solicitors Scotland, has always said that families who are affected by workplace deaths are being denied justice. Humza Yousaf said today that he has
“a great deal of sympathy with families”,
but the clear message is that families need more than sympathy: they need a change in the law.
I will read out comments from Denise Christie, who is the head of the Fire Brigades Union Scotland. She says:
“The current legislation is completely ineffective. After 13 years there have been no prosecutions let alone convictions under the legislation in Scotland at all! The legislation is drafted in such a way that medium size or larger organisations are almost never likely to be prosecuted. We believe it protects companies from prosecution and fails workers and their families.”
That is the issue that Claire Baker, with a lot of support from others, has worked so hard to address.
It is absolutely appalling that the cabinet secretary has come to the chamber today with excuses, rather than looking at how we can take the bill to the next level—stage 2—and work to see whether the Government’s concerns can be addressed. That, at least, should be the principal starting point for the Government.
The FBU says that the
“The Health and Safety at Work Act has been a good piece of legislation, however, it doesn’t reflect the gravity of the crime. An organisation’s reputation is one of their most valuable assets. If a company is found guilty of s2 or s3 of the HSWA, it doesn’t have the same impact as being found guilty of culpable homicide!”,
which would cause reputational damage.
The FBU also says that
“organisations are now no longer deterred by the current legislation as they know that the chance of being prosecuted in Scotland under it is almost non-existent”.
I thank Claire Baker and the trade unions. We must sort this out. I appeal to the cabinet secretary to agree that the bill should go forward so that we can continue our discussions to fix its current weaknesses.
I pay tribute to Claire Baker for the work that she has put into a member’s bill that deals with an important issue and means so much to families who are affected.
It is not the statistics that Claire quoted about increasing numbers of deaths in the past decade that affect us, but the stories and testimony behind those figures. Alex Rowley showed in his use of the FBU’s testimony that there is a gap in the law. People are dying at work, but companies are not being held responsible and families are left with nowhere to go. That is a clear failure.
Those who have argued against progressing the bill have made two points. One is about legal competence. I have studied the Presiding Officer’s statement and have listened to the cabinet secretary. However, Claire Baker and those who support the bill make the powerful point that it could be taken forward under section 29(4) of the Scotland Act 1998. We should explore that as part of our further consideration of the bill.
Some members have made points about a supposed lack of evidence and about timetabling. There is evidence. The issue goes back more than 15 years. A number of members have referred to the work that was done by Karen Gillon and continued by Richard Baker. There is already a formidable package of evidence.
Rhoda Grant pointed out that there is a question mark over the date of the election because of on-going restrictions that have been caused by the pandemic. It would be reasonable to accept the general principles of the bill at stage 1 in order to allow further consideration.
We have heard contributions from a number of members, including Liam Kerr and Humza Yousaf, who said that they are sympathetic to the principles of the bill but do not want to take it forward. That is not good enough. The issue has been around for more than 15 years. It is a failure of devolution that large companies go unprosecuted when fatal accidents happen at work. The Government and all parties should take more responsibility for that.
We have listened to the testimony of people who have been affected. Rhoda Grant quoted Louise Taggart and Claire Baker quoted Natalie Woods McKeown. It is a tragedy that someone can leave to go to work and never return home; it is terrible for their loved ones. It is not good enough for members and political parties to wring their hands and say that we do not have enough time, or that there are legal considerations or concerns.
Let us use the tine that we have to stand up and be a voice for those families. That is what Parliament is all about. Let us try to make a difference. Let us allow the bill to go to the next stage so that we can have further scrutiny and make it work.
I urge members to support the bill at decision time.
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.
I welcome today’s debate. I am disappointed by some of the characterisations in the debate, particularly from Labour members, and the suggestion that those who do not support the bill today are not thinking of the families or do not have them in our minds as being affected by—
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.”
“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.”—[
, 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—
—after being found guilty at trial over a number of health and safety at work failures.
In January 2017, Donald Craig, the manager of an access plant hire firm, was sentenced to the maximum penalty of two years’ imprisonment for breaches of health and safety law. There are a number of other cases to which I could refer.
Not only does the Scottish Government have sympathy for families; it also wants to work with them and with other members to produce a bill that could help to address the issues. However, those would have to be within the Parliament’s devolved competence, deal with the policy considerations and be appropriately scrutinised.
I will wrap up my remarks there, Presiding Officer.
I thank members for their contributions to the debate. I recognise that the process of scrutinising the bill has been curtailed, and I appreciate the consideration that members have shown on that. I am struck that members seem to recognise and to agree that the current situation is not acceptable. However, I ask them what they are prepared to do to fix it if they do not wish to support the bill.
I thank Patrick McGuire of Thompsons solicitors for his commitment to the bill and his extensive work on its drafting. My thanks also go to Ian Tasker of Scottish Hazards and Louise Taggart of Families against Corporate Killers for their support and the provision of invaluable briefings. I also thank the STUC for its strong support and its generosity in hosting meetings and events. The contribution and commitment of the trade union movement, which has campaigned for change in this area, are very much welcomed. The GMB, Unite the union, Unison, the FBU and ASLEF all know the impact that the existing situation has on their members and their families. I sincerely thank all the families who have shared their experience with me. They include those who have had bereavements during the passage of the bill and who have contacted me in a distraught state because they have no confidence in the current justice system and fear that the lives of their loved ones and the loss that they have experienced have been undervalued.
To members who might be concerned about the bill’s potential impact on business, I say that it does not require businesses to do anything other than what they are legally required to do now. Businesses and employers that take seriously the duty of care that they have for their workforces and that take all necessary measures to prevent injuries and fatalities have nothing to be concerned about.
The cabinet secretary described the bill as “bad” legislation. I have to say that that was not the SNP’s view when it was in Opposition. I will not repeat the First Minister’s comments from then, but I ask what has changed. The cabinet secretary has also raised concerns about the drafting of the bill’s sections on aggregation and on art and part liability. In addition, points have been raised about the bill’s interaction with the Corporate Manslaughter and Corporate Homicide Act 2007. I recognise that those areas need further consideration, and I propose to lodge or accept amendments to address them. I have met representatives of the GMC. I would also consider the option of including exemptions.
The curtailment of stage 1 of the bill’s progress has limited the opportunities for dialogue and scrutiny. I believe that, as Rhoda Grant argued, those could be addressed by amendments at stage 2, on which I intend to work constructively with others. I ask members to consider how we might complete members’ bills in this session. Members have introduced bills in good faith and in good time, and it is highly regrettable that legislation is now being thwarted by time constraints.
Unison Scotland is urging members to support the bill at stage 1. It says:
“For too long, large businesses have destroyed families with little recompense. It is time for the law to be readdressed.”
There is a moral imperative to the bill. I draw members’ attention to a case that is similar to those that the cabinet secretary mentioned. Scottish Hazards has highlighted the view of Sheriff Collins, which she set out in her sentencing of Craig Services and Access Ltd in 2012:
“The sentences I am about to impose cannot and do not attempt to reflect the enormity of Mr Currie’s death, nor the suffering of his loved ones.”
The inadequacy and insufficiency of the law were first exposed by the Transco case, to which the 2007 act was a response. However, there is no evidence that the current UK legislation can effectively deal with the prosecution of a company such as Transco or even that of a smaller company such as Craig Services and Access Ltd. Today, the FBU has said that it believes
“the Act protects companies from prosecution and fails workers and their families.”
I welcome the cabinet secretary’s offer to continue discussions in the next session of Parliament, if we are returned, and Liam McArthur has suggested a committee approach. However, sympathy is not enough; we need a solution-focused approach and not to be prepared to remain at a standstill, with no change.
Liam Kerr is not accurate in saying that I have not presented an argument that the bill is competent. I have done so, and my argument was shared with the Presiding Officer and the committee. Mr Kerr and others might not agree with it, but it is unfair to say that I have not made out a case. The bill is wholly concerned with Scots criminal law, and section 29(4) of the Scotland Act 1998 gives the Scottish Parliament the power to make modifications to that.
I do not agree with criticisms of the bill’s purpose and effect. It proposes no changes to existing health and safety legislation. The pith and substance of the bill is on culpable homicide. It is not concerned with reserved health and safety legislation, so I do not accept that as an argument for denying legislative competence. A number of members referred to the Law Commission’s review, but, to be clear, that is not considering culpable homicide cases concerning workplace deaths.
My final word on legislative competence is to call on the Scottish Government to think again, to give the bill the same consideration as it has given other bills that it has introduced, to not accept the current state of affairs and to agree to work with me to deliver a workable bill and a good piece of legislation that will provide families with a route to justice and help to reduce how often they may need to access it.
Presiding Officer, I appeal to members to support the general principles of the Culpable Homicide (Scotland) Bill and I give my commitment to work with members across the chamber to deliver justice for families throughout Scotland.