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Culpable Homicide (Scotland) Bill

Overview

The Bill changes the law of culpable homicide in Scotland by creating two new offences. These are where the death of a person is caused recklessly or by gross negligence. Culpable homicide is the term used in Scots law for an offence of causing the death of another person without planning or intending to.  It is different to murder where there is criminal intention, and from causing death by an accident where no-one can be blamed.  These new offences in the Bill are in addition to the current law on culpable homicide. 



The Bill includes:



  • details of what is meant by the two new offences

  • how an individual and an organisation or business may be guilty of each offence

  • the penalties that a court can impose when someone is found guilty of the offences

  • how the new offences apply to the Crown (such as Ministers and employed officials in the Scottish and UK Governments)

You can find out more in the document prepared on behalf of Claire Baker MSP that explains the Bill.

Why the Bill was created


The aim of the Bill is to change the law on culpable homicide. It aims to make sure a person, business or organisation who causes a death can be found guilty of a suitable offence. 



The current law does not seem to be able to apply in the same way to organisations and businesses of different sizes. There have been very few cases of large businesses being prosecuted for culpable homicide where deaths have been caused by their actions. This is because it is hard to identify who in a large business controls the actions that lead to the death. 



The Bill aims to make it clear how people in a large organisation or business can be held responsible for a death. 

You can find out more in the document prepared by Claire Baker MSP that explains the Bill.

Fallen

The Bill fell at Stage 1 on 21 January 2021. There were 26 votes for, 89 against, and 0 abstentions.

Introduced

The Member in charge of the Bill, Claire Baker MSP sends the Bill and related documents to the Parliament.

Bill as introduced Culpable Homicide (Scotland) Bill

Financial Resolution

The Presiding Officer has decided under Rule 9.12 of Standing Orders that a financial resolution is required for this Bill.

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Committees involved in this Bill

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.


It looks at everything to do with the Bill.


Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener

Our next item is to consider the Culpable Homicide (Scotland) Bill at stage 1. I refer members to papers 1 and 2 in our committee pack and I welcome our panel of witnesses, who are attending online: Claire Baker MSP, the member in charge of the bill, and Patrick McGuire, a solicitor from Thompsons Solicitors. I welcome you both—thank you for joining us this morning. I invite Claire Baker to make some short opening remarks and then we will proceed straight to questions.

Claire Baker (Mid Scotland and Fife) (Lab)

Good morning, convener. I thank the committee for inviting me along to give evidence on the Culpable Homicide (Scotland) Bill.

This is not the first time that the Scottish Parliament or the Scottish Government has been asked to consider the law that applies when an individual’s death is caused by a business or an association. Scottish Government ministers have previously commissioned analysis and expert groups. The United Kingdom Government introduced the Corporate Manslaughter and Corporate Homicide Act 2007, under which there have been no convictions in Scotland. This is the third proposal for a member’s bill that seeks to address an injustice that has not gone away.

While we have failed to tackle the issue, the most recent annual average shows that 19 people per year are killed in Scotland while at work—the highest rate in the UK. Those deaths are investigated by the Health and Safety Executive. The most recent figure is that there were 29 such deaths in 2018-19. That does not include deaths investigated by the Rail Accident Investigation Branch, the Air Accidents Investigation Branch or the Office of Rail and Road, or work-related road traffic incidents.

I believe that we must take action to address this poor record of fatalities and provide a route to justice for families by using the powers of the Scottish Parliament to ensure that culpable homicide is applied equally to individuals, small businesses, large businesses and corporations.

I have spoken to families who have suffered the pain of losing a loved one at work. When they said goodbye in the morning, they did not expect that to be the last time that they saw their mother, their father or their son. They have shared with me their frustration at the justice system, which they believe does not fully recognise the responsibility and accountability of the employer.

Although health and safety legislation can be used to issue fines and, in rare circumstances, a custodial sentence, it is not possible to use the current law to effectively pursue a proper homicide case through the criminal courts. The bill would make that possible.

I would also argue that the bill is a positive lever that will improve health and safety practices within the workplace. It will ensure that the consequences for companies, big or small, that fail to implement and maintain good health and safety standards, putting their employees at risk, will be significant and will reflect the seriousness of fatalities at work. That will act as a strong incentive for employers to be confident that they are operating a safe and responsible business.

The bill has the support of the Scottish Trades Union Congress and trade unions that have direct experience of their members experiencing injuries and fatalities in the workplace. I thank Scottish Hazards and Patrick McGuire from Thompsons for their valuable support and expertise, along with families against corporate killers, which, from a place of great loss, has long campaigned on the issue.

There is a strong desire to close the recognised loophole in our current arrangements. Families who have lost a loved one at work feel that they do not have access to justice, and I believe that the time has come for the Scottish Parliament to take action.

The Convener

Thank you, Claire. That was very clear and helpful. Rona Mackay will open the questions for the committee.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Claire, can you expand a wee bit on the general background to your bill and on what prompted you to introduce it? As you say, this is not the first time that such a bill has been introduced. Can you expand a wee bit on why you feel so passionate about the issue?

Claire Baker

As Rona Mackay mentioned, this is not the first time. Karen Gillon was the first to introduce a bill—she represented Larkhall, where there was the tragedy of the Larkhall explosion, which Transco was responsible for. It was recognised at that time that there was a loophole in the law. The Lord Advocate believed that there should have been opportunities—a culpable homicide case was brought forward. Transco should have been held responsible in that way. However, the law did not enable that to happen and the case collapsed. That was the initial response.

I am involved because I have met families against corporate killers and the activists campaigning for change. As I said, there have been no convictions in Scotland under the 2007 act, which was passed by the UK Parliament. There was a peak in the number of deaths in Scotland in the most recent year for which we have figures, but we are still looking at 19 deaths a year on average, and that figure has not changed since the 2007 act came in; if anything, it has got worse. We estimate that, over that time, there have been 250 cases but only nine convictions. It is difficult to take forward prosecutions in this area, and there have been no prosecutions under the 2007 act. The current law is ineffective.

There is also an issue of equality. It is possible for an individual in Scotland to be charged with culpable homicide, and it would be possible for a small business in Scotland to be charged with culpable homicide. The cases that the Government has cited include examples such as the skipper of a shipping fleet. It is easy to identify such a person, but when it comes to a large business, there is a loophole and there is no way for a case to be pursued through the courts. The bill seeks to address that.

The Convener

In your answer to Rona Mackay, you said that there have been no prosecutions in Scotland under the 2007 act, but in your opening remarks you said that there had been no convictions under the 2007 act. I accept that there have been no convictions in Scotland, but is it also true that there have been no prosecutions under the 2007 act in Scotland?

Claire Baker

My understanding is that there have been no prosecutions under the 2007 act in Scotland. There have been a handful in England, but those have involved small construction firms, where the manager has been prosecuted under the act.

The Convener

Thank you. I wanted to clarify that.

James Kelly (Glasgow) (Lab)

I declare an interest, as I signed in support of Claire Baker’s bill.

Claire, what specifically are you trying to address with the bill? What gap in the legislation do you think exists that means that this proposed legislation is required?

Claire Baker

There are a few areas. On the issue of inequality, the way in which the law acts in Scotland means that a person or a small business can be charged with culpable homicide, but a large business cannot be. If we go back to the Transco case, at the time, the Lord Advocate wanted to take forward a case of culpable homicide, but that case collapsed. Although prosecutions can be brought and fines and an occasional custodial sentence can be issued under health and safety legislation, families do not feel that those measures are sufficient for what they have gone through and that the measures do not recognise the recklessness and gross negligence involved in the way in which the company has operated that has led to a death.

I am also concerned that there are also other cases in Scotland, including the Stockline plastics factory disaster and—[Interruption.] Apologies, as it is a complicated bill, I have a number of papers.

There is the Larkhall case, which involved Transco, as I have mentioned; the Flying Phantom case; the Super Puma case; and the Stockline case. Those are the big, landmark instances that we have had in Scotland. There is strong opinion that those cases should have been prosecuted in a more robust manner that reflected the seriousness of the companies’ failings.

I have concerns that, if similar incidents were to happen in Scotland in the future, the law would still be inadequate. Although the level of the fine might be significant, that does not reflect the loss of life that has been experienced by families.

In the Transco case, the situation was described as a loophole. Lord Brodie was the judge in the Stockline case, which was tried under the Health and Safety at Work etc Act 1974. Lord Brodie said that

“that response is by its nature an inadequate response”.

There is a recognition in Scotland that the current law is not sufficient to reflect to the loss of life that is experienced by families and the companies’ lack of care.

If it is acceptable, convener, I will invite Patrick McGuire to come in, because he is indicating that he would like to contribute.

Patrick McGuire (Thompsons Solicitors)

I will briefly add to Claire Baker’s comments. In a nut shell, what she has said comes down to the point that the name of the offence for which a person or company is convicted really matters. It is that simple. It matters to the families who kissed their loved ones goodbye and never saw them again. That is what we have heard from every family to whom we have spoken. Thompsons has been representing families who have lost loved ones to industrial neglect and recklessness for far too many years.

Most important in many ways, the name of the offence matters to the authorities. As Claire Baker said, when the Lord Advocate responded to the Transco disaster, he recognised that the name of the offence matters. That is why he did everything in his power to bring a culpable homicide prosecution, but that ultimately failed because the law was not robust enough. Lord Brodie made similar comments, too.

The families, the Lord Advocate and the judges recognise that the name of the offence matters. Providing the appropriate model is what we have to achieve. A conviction simply under health and safety regulations does not carry that recognition—the families do not recognise it as such—so the law needs to respond to their needs and take into account the comments from the law officers and their judges.

Liam Kerr (North East Scotland) (Con)

Good morning. In answer to James Kelly’s question, Claire Baker said that the gap is that a large business cannot be prosecuted. However, companies can be prosecuted currently, can they not? Are you, in fact, saying that the penalty or, as Patrick McGuire said, the name of the offence is the inadequate response? Is that your position?

Claire Baker

Yes, I think that it would be fair to say that. Although companies can be prosecuted, that has to be done under health and safety legislation. It has been impossible to convict an individual, because there is a difficulty in identifying the controlling mind within a large business and holding the organisation or corporation accountable. Given the way in which modern companies are structured and the layers of management, it is difficult to identify the responsible person. That was one of the reasons why there were difficulties in prosecuting the Transco case.

If it is okay, convener, I will invite Patrick McGuire to address the issue.

Liam Kerr

May I press you on that point first? As I understand it, the function of the bill relates to the controlling mind in a company. Is it not the case that one of the reasons why there is a difficulty in identifying the controlling mind is that there might not be a controlling mind in a large plc? If the bill were passed, one of its impacts would be that, in effect, criminal liability and criminal penalties could be fixed on shareholders, directors and managers. I see that from one of the bill’s sections. The bill is not going to solve the difficulty of identifying a controlling mind, is it? If it is going to solve that, because there is no need for mens rea, is that not quite troubling?

10:15  



Claire Baker

I will bring Patrick in, but I disagree with the premise of the question. In a large corporation or a large business, there is a controlling mind; there is responsibility and a duty of care for the people who work for that business.

I am not asking anybody to do anything that they should not already be doing. Health and safety legislation is there for a reason, and it is an employer’s responsibility to provide a safe and secure workplace. It would be for the Crown Office and Procurator Fiscal Service to decide whether to take cases forward.

However, if a business fails in that area, there should be consequences and it should be clear that the senior people with responsibility in the company are the people who are ultimately responsible. People are working under their instruction and the company’s direction. It is not good enough for a company to say that it ultimately does not take responsibility for an incident because it was caused by a more junior person in the organisation, if the senior people are the ones who are setting up the structure and are responsible for the way in which the company works.

Patrick McGuire

I will address the issue of mens rea. It is not the case that the bill as drafted will create a situation in which there is no mens rea. There will always be mens rea, as I will explain. It is probably helpful to take a step back and look at the way that the law has grappled with applying mens rea to companies over the years, particularly when the conduct of a company or its agents causes the death of an individual, and particularly in cases of culpable homicide.

Under the common law—the Transco prosecution attempted to deal with this—the only way that guilty mind culpable homicide could be applied to a company was through the fiction, and it was very much a fiction, in the law that the controlling mind of that company formed the decision-making process that led directly to death. That was how a company could be seen to have formed mens rea—the guilty mind.

The issue was that it was all but impossible in all but the smallest of companies to draw a direct line or connection between the wrongful act—actus reus, or guilty act—and the decision or, more important, the controlling mind of that company, which the law said was at the highest echelons of the company, or the directors.

That is the case, and it is why the UK Government attempted to grapple with the issue in 2007 and introduced the 2007 act. However, it replaced one fiction with another. It removed the common-law concept of the controlling mind, and introduced a very similar statutory thought map, in which it required—to use the generic, non-specific term, because it is a statutory provision—the guilty mind to be formed by senior management. That became the test. In reality, that presented pretty much the same problem. When dealing with medium-sized companies, large companies and multinational companies, drawing a line between the decisions of senior management and a wrongful act will often be very difficult. That has proved to be the case, and I suggest that that is why we have seen no prosecutions and no convictions under the 2007 act.

The bill says that there is another way of applying the idea of a guilty mind to a company—one that reflects the reality of the way that companies of all sizes operate in the modern world. Companies are non-natural persons; they can act only through natural persons, whether that is at board, senior management or supervisor level, and they delegate down the authority to act as the company. The bill defines the individual as a “responsible person”. 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, because the company asked the individual to act and passed that delegated authority to them. Therefore, the company is as guilty as the individual; there is a guilty mind that can be tied to a guilty act, and the company, in those circumstances, should be capable of being convicted of culpable homicide. On one level, that is also a fiction, but it ties in far more readily with the reality of modern business.

The Convener

That was a full and lengthy answer; thank you.

John Finnie (Highlands and Islands) (Green)

Good morning. Like James Kelly, I am a signatory to the bill, and I commend Claire Baker, Patrick McGuire, Scottish Hazards and the trade union movement for trying to reduce the unacceptable level of workplace deaths.

This question has already been touched on, but I will revisit it. The Crown Office and Procurator Fiscal Service will initiate prosecutions. Can Claire Baker point to any specific examples in which prosecutions under the current law have not taken place or have been abandoned because of deficiencies in the present set-up? Can she advise the committee how the bill might address those deficiencies?

Claire Baker

It has been difficult to identify cases that the Crown Office might be considering taking forward under the 2007 act or health and safety legislation. Families came to me in the consultation process, and I had an event in Parliament, which a number of MSPs attended. Individuals have gone through horrendous experiences, albeit that they are not the big headline cases, and they feel that the process is too slow, that people are not held accountable, and that the law does not work.

In the consultation, someone said:

“Nearly 17 years after the death of my dad I welcome these proposals, no family should have to suffer as mine has had to, no one was held to account for my dad’s death and there was no prosecution whatsoever and I was not informed why. I hope this attempt to change the law succeeds to help ensure justice is achieved for others suffering the loss of a loved one as a result of work.”

[Inaudible.]—died at work recently. From the outline of the case, it was quite clear that there were serious health and safety failings at that company. She has concerns that—[Inaudible.]

The Convener

I do not think that I am the only one who is losing the connection with Claire Baker. John Finnie wanted to ask a supplementary question. After he has asked it, we can see whether Patrick McGuire can pick up where Claire Baker left off and deal with any further issues.

John Finnie

One function that the Crown can look at is fatal accident inquiries for work-related deaths. I appreciate that I am talking about two totally separate functions, but I am trying to establish where the deficiency in the existing law is that means that no prosecutions have taken place, when one might reasonably expect them to have taken place. I do not know whether you can help with that, Mr McGuire.

Patrick McGuire

On the more general point, I think that Claire Baker has already given the statistic. We understand that there have been 250 fatalities at work since the 2007 act was introduced, and there has been not one prosecution or conviction. That presents one form of evidence.

I can present another—I can provide it in writing after the meeting, if that would assist. The cabinet secretary received a letter from Scottish Hazards that asked the Scottish Government to support Claire Baker’s bill, to which a member of the cabinet secretary’s senior team responded on his behalf. That letter suggested that, at that stage—before the bill was introduced—the Scottish Government thought that the law was quite robust, despite the inadequacies that we have highlighted. More important, that letter highlighted three prosecutions against individuals under health and safety legislation. Those were the prosecutions of Donald Craig, Guthrie Melville and Robert Harvey. The Scottish Government’s position was that, because those three defendants received custodial sentences under the health and safety legislation, it must mean that the law is working.

I think that those cases prove the complete opposite if we go back to the importance of the name of the offence and the appropriate moral opprobrium attaching to that offence. I have looked at those three cases in as much detail as I can and, in my view, although custodial sentences were eventually handed down, all three would have resulted in convictions under the bill. As I have said, I am happy to provide a written submission to that effect.

The Convener

I am sorry that we lost Claire Baker. John Finnie asked a supplementary question that was directed to Patrick McGuire. Do Claire Baker and Mr Finnie want to wrap up the line of questioning? Does Claire Baker have anything that she wants to add?

Claire Baker

I seem to have been disconnected—apologies for that. I caught most of Patrick McGuire’s reply, in which he referred to the Scottish Government letter that we received. I was disappointed that the Government felt that the 2007 legislation was robust. The figures in Scotland, which show a continuing rate of fatalities at work, suggest that the existing legislation is ineffective and that we need to take a different approach in Scotland.

Liam Kerr

Section 14 of the bill says that it is

“without prejudice to the offence of culpable homicide at common law.”

This is completely outwith my professional training, but I think that there are defences available to culpable homicide in the common law, which I do not see replicated here. What examination, if any, have you done of the interplay between the bill and what currently exists in the common law?

Claire Baker

As you say, the bill states that it does not replace in any way the common law that exists for culpable homicide. The bill is focused on trying to address the issue of inequality between individuals, small businesses and large businesses. It deals with criminal law. You have raised an important issue. If the bill proceeds, there might be the opportunity to give greater scrutiny to such issues.

10:30  



The Convener

I want to ask you about the issue of legislative competence. You have referred several times in your evidence this morning—including three times in your opening remarks, I think—to your bill as legislation in the field of health and safety. As you know, under schedule 5 to the Scotland Act 1998, the whole of the subject matter of part 1 of the Health and Safety at Work etc Act 1974 is reserved to the United Kingdom Parliament. As you also know, we have a certificate from the Presiding Officer to the effect that your bill is outwith legislative competence for that reason. Can you explain why you are seeking to pursue a bill about health and safety when the subject matter of health and safety is reserved to the Westminster Parliament and the Presiding Officer has certified that the bill is outwith our legislative competence?

Claire Baker

I do not think that I have referred to the bill as being a health and safety piece of legislation. I think that I have compared the effectiveness of the bill to that of the existing health and safety legislation, which I feel is inadequate. I have said that the legislation could improve health and safety in the workplace, but I would counter that it is not a health and safety piece of legislation. It is a piece of legislation—

The Convener

I am sorry to cut across you, but can you explain what that means? I do not understand that, as a lawmaker or as a lawyer. How can a piece of law that is about health and safety not be about health and safety?

Claire Baker

It is about equalising the culpable homicide law, which is part of Scots criminal law and which applies equally to individuals, small businesses and large businesses. I would argue that one of the consequences of equalising that law would be improving health and safety. It looks to address fatalities at work, but it comes within Scots criminal law. It is about introducing a culpable homicide act. It is—

The Convener

What would you say—

Claire Baker

[Inaudible.] I recognise the Presiding Officer’s judgment, and I accept that there is an area for debate. However, from previous examples, such as the Alcohol (Minimum Pricing) (Scotland) Act 2012 and the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, there have been times when the Parliament has taken the decision to push what we believe our responsibilities to be. That has not always been done on a consensual basis, but we have taken the decision to push those responsibilities.

There are different ways to look at the area. I do not accept that it is cut and dried that the bill is not within our competence. We should be ambitious and brave enough, and we should move forward with the legislation. I think that it is competent under Scots law. If it would be helpful, I could bring in Patrick McGuire to talk about the area in the Scotland Act 1998 that we think means that the bill is within competence.

The Convener

I will bring in Patrick McGuire in a minute, but I want to pursue that with you a bit further. Annabelle Ewing also wants to ask a question about that. We will bring in Patrick McGuire once we have heard from Annabelle Ewing.

I hear what you say about ambition. However, I am afraid that the terms of the Scotland Act 1998 do not refer to ambition, but to purpose and effect. You have made it crystal clear that the purpose of the bill is to equalise an element of Scots criminal law with regard to health and safety, and you have equally made it crystal clear that the effect of the bill will be to transform one area of Scots law with regard to health and safety. Therefore, both the purpose and the effect of the legislation are intimately tied up with health and safety, which is a reserved matter, as the Presiding Officer explained in the certificate. 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.

Claire Baker

I understand your position, but it is not one that I fully accept. The sole purpose of the bill is to amend Scots law in respect of criminal law, and the pith and substance of the bill, as the consultation says, relate only to Scots criminal law. That makes the case that it is within the legislative competence of the Parliament.

The Convener

Annabelle Ewing is next. We can bring in Patrick McGuire afterwards, if that is what Claire Baker wants.

Annabelle Ewing (Cowdenbeath) (SNP)

I would be hugely frustrated by the constraints of schedule 5 to the Scotland Act 1998 if it applied in its entirety. Claire Baker cited other instances. In one example that has been cited, the Lord Advocate took a view that was very different from that of the Presiding Officer. I am not sure whether that is the position in this case.

I am hugely ambitious for us all. Workarounds are important, and I would be interested to hear from Patrick McGuire what attention has been given to finding a way around the conundrum. In that regard, there must be an element of caution in making any assessment, because the interplay of devolved and reserved elements has consequences under schedule 5. Is there a real intention to proceed here, given the risk following the PO’s ruling that there could be a legal challenge? Such a challenge would not help the families—indeed, it would not help anybody. Are Claire Baker and her team confident that there is a reasonable workaround that could be the way forward?

Claire Baker

We are confident that section 29(4) of the Scotland Act 1998 gives us the flexibility to take steps in the area. For those who argue that the bill falls under the issue of reserved matters, we think that the purpose of the provision is to make the law apply consistently to reserved and devolved matters and that the law of culpable homicide applies to individuals and non-natural persons alike. We think that section 29(4) of the Scotland Act 1998 gives enough flexibility for us to proceed.

As I said earlier, a version of the bill has been introduced three times. When it was first introduced, by Karen Gillon, it was signed by Nicola Sturgeon and John Swinney. Six members of the Government party have signed the bill, and it has support from other political parties. There is a desire in the Parliament to see action on the issue and to take it as far as we can. Many members of the Scottish Parliament believe that we have the ability to legislate on the matter. I propose that the bill is competent for consideration by the Scottish Parliament, and I would be grateful if the committee would consider taking the bill forward at stage 1 and giving us the opportunity to explore the arguments.

Patrick McGuire would like to comment on the Scotland Act 1998, but I know that time is tight, convener.

The Convener

I would like to hear from Patrick McGuire on the matter, unless Annabelle Ewing has any further questions.

Annabelle Ewing

I do not.

The Convener

There seems to be a problem with Patrick McGuire’s sound. Let us move on with the questions from Fulton MacGregor and hope that we can reconnect Patrick after that.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I thank Claire Baker for her tenacity. It is unacceptable that we are still in this position. Every year in my constituency we remember the men who went to work at Auchengeich mine in Moodiesburn—as colleagues will know, this year is the 61st anniversary of the disaster. It is terrible that, 61 years later, we are still talking about the issue.

Just because I am not a signatory to the bill, please do not think that I do not have a lot of sympathy for, or that I am not generally supportive of, the bill. I have been interested in the issue of whether it is competent for us to do what the bill seeks to do, which has just been covered in the discussion. It is extremely interesting to listen to the arguments back and forth on that.

You have talked about having support from other parties. I know that six colleagues from my party are signatories to the bill. Will you expand on what discussions you have had with colleagues across the five political parties? Have you had any discussions with Government ministers or cabinet secretaries?

Claire Baker

As this is a member’s bill, I believe that it is important for me to speak to people from all political parties and to provide opportunities for engagement. I held an event in Parliament that families who had experienced the loss of a loved one at work could come along to and speak to members of the Scottish Parliament.

As I said, I have the support of six members of the governing party, members of my party and strong support from the Green Party. Liam McArthur, who is here today, is also a signatory to the bill. I had a discussion with Liam Kerr, who I appreciate has a good deal of knowledge of this area, prior to the bill being introduced. I spoke to all the justice spokespeople of the political parties in Parliament. Although Liam Kerr did not become a signatory to the bill, I think that we had a productive conversation, which made me optimistic that the bill introduces a discussion that is important for us to have and that, with changes, it can, I hope, be passed.

Scottish Hazards contacted the Government on my behalf. The Government’s letter has been referred to already. I am slightly disappointed by the Government’s defence of the 2007 act and its description of it as “robust”. I do not think that the figures in Scotland reflect that. The number of deaths has not decreased; indeed, they have increased in recent years. Therefore, I do not accept the argument that the 2007 act is an effective deterrent. However, the Government concluded by saying that it would give careful consideration to the bill when it was introduced and that it would examine whether the current legislation could be improved.

Although the Government has not given a commitment to support the bill, it has the support of members of the governing party, and the Government said that it would consider it once it had been introduced.

Fulton MacGregor

Thank you for that very full answer.

Following the Presiding Officer’s ruling on the competence of your bill, what further advice did you take that has brought you to where you are today? You said that, given that the bill has reached stage 1, you would conclude that it is within competence. Did you take any advice on that? What led you to continue with the bill after the Presiding Officer’s ruling?

Claire Baker

As I have explained, a version of the bill has been introduced three times. I am not denying the fact that the issue of competence has been in and around what has been proposed. My proposed bill had the support of members of different political parties. In introducing the bill, I decided to get the support of Thompsons Solicitors, because we anticipated the Presiding Officer’s judgment—it was not unexpected that the Presiding Officer took that view, but there are alternative views.

I understand that Patrick Maguire has rejoined us; we could maybe ask him to speak about the section of the Scotland Act 1998 that I mentioned earlier. Those alternative views are shared by people across the trade union movement, by the families who support the bill and by members in the Parliament who think that we should take the opportunity to make the proposed changes in the law, and that we have the powers to defend our making that decision.

Fulton MacGregor

That concludes my questioning. I again thank Claire Baker for all her work in this area.

The Convener

I am not sure whether we have Patrick Maguire back with us. We can see you, but we are not sure whether you can see and hear us, Patrick. If you can, could you come back to the issues of competence that we were dealing with before we lost your connection? I apologise for the fact that we lost you. Could somebody from broadcasting please unmute Patrick’s microphone? We cannot hear him.

10:45  



Patrick McGuire

I pressed the button, convener. I am sure that that is not normal procedure. I am happy to proceed if that is okay.

The Convener

Excellent—we can hear you, Patrick. Please continue.

We were talking about the legislative competence issue, and Claire Baker wanted you to explain to the committee why the legislation could be brought within the competence of the Parliament.

Patrick McGuire

Thank you, and I apologise for my signal drop.

I heard everything that you had to say about the purpose and effect of the bill, convener. However, it is important to take a step back. A lot of the debate around the bill, and previous iterations of it, has centred on the consequential impact that it will have on the health and safety environment in Scotland. There is a problem that trade unions, campaigners, and families wish to resolve in that regard. It is often that aspect that is discussed and focused on with bills such as Claire Baker’s, and it is easy to be dragged down that line of questioning and to focus only on that part of the bill.

However, based on a pure ex facie reading, and considering its general purpose and carefully constructed policy document and explanatory notes, the bill does much more than that. It recognises that the law of culpable homicide is in need of reform generally in relation to how it applies to individuals and organisations. The bill recognises that there is an inconsistent approach in the way in which the law deals with wrongful acts that cause death as between individuals and organisations, and as between organisations of different sizes.

Most important, the bill seeks to introduce two tests that apply equally to individuals and organisations alike and that level the legislative test for culpable homicide. I am labouring the point about there being two tests because the bill also recognises that, over the years, Scots law has had two different approaches to the mental element of culpable homicide.

Many decades ago—in fact, it was longer ago than that—the test was principally one of negligence and gross negligence. The law then developed into the area of recklessness, and there was a period during which recklessness and gross negligence applied equally as tests for culpable homicide. The bill returns us to that point, for both individuals and for organisations. It says that both tests are equally applicable and that both should form the basis of a conviction for culpable homicide.

That is important, because although there is a significant overlap between recklessness and gross negligence, there are gaps in between, which we recognise need to be addressed for both organisations and individuals. Our position is that the bill deals principally with Scots criminal law and seeks to make the law apply equally across organisations and individuals alike.

We recognise that there is an argument that the bill impacts on areas that are reserved to Westminster under the Scotland Act 1998, but we argue that section 29(4) of the 1998 act provides the route by which the bill can be viewed as being within the competence of the Scottish Parliament. It states:

“A provision which—

(a) would otherwise not relate to reserved matters”—

for example, one that impacts on health and safety—but which

“(b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters”,

which the bill certainly does,

“is to be treated as relating to reserved matters unless the purpose ... is to make the law in question apply consistently to reserved matters and otherwise.”

That is exactly what the bill seeks to do.

I cannot remember whether it was Ms Ewing or Ms Mackay who asked what further advice and views we took in the light of the Presiding Officer’s statement on legislative competence. The answer is that, disappointingly, despite the policy memorandum clearly stating that we rely on section 29(4) of the Scotland Act 1998, that section is completely untested, there has been no parliamentary discussion about it and the Presiding Officer has not dealt with that at all in his statement on competence. Therefore, it remains a live issue. There has been no de facto determination from the Presiding Officer, because he has not dealt with the issue.

The Convener

I hear what you say about section 29(4), but it is not completely untested. A few years ago, there was a House of Lords or Supreme Court case in which there was a three-two split on the issue and Lord Hope and Lord Rodger were on different sides.

Before we wrap up, Liam Kerr has a final question for Claire Baker.

Liam Kerr

Is not the Scottish Law Commission specifically looking at reform of this area of law? If so, at what stage is that work? Why are we not waiting for it?

Claire Baker

The Scottish Law Commission has had the issue of culpable homicide in its sights for a while. The issue has been on the agenda, but it has been pushed back and back and has only recently been added to the commission’s work programme, which runs from 2018 to 2023. The commission is considering culpable homicide, but we will not have its report until 2023 at the earliest, and I am not sure whether the impact of the Covid pandemic has delayed the work in any way.

At that stage, we will have only the commission’s report, and the Government will then have to reflect on it and decide whether to legislate, so we are looking at an extremely long timescale to address a problem that has already been identified. We are offering a route to solve it. We can deal with the matter as a discrete issue and, if the bill is passed, it can be included in the Scottish Law Commission’s review.

We have waited long enough. The timescales for the commission’s report are too long, and could be extended, and it would then take time for the Government to legislate. Since the 2007 act was passed, there have been 250 fatalities at work. Last year, 29 people died at work. If we have to wait another 10 years for the Scottish Law Commission to prepare its report and the Scottish Government to decide whether to legislate, how many more lives will be lost? We can do something now by taking steps to prevent fatalities at work in Scotland.

The Convener

I thank Claire Baker and Patrick McGuire for their time and their full and helpful evidence, for which the committee is grateful. The committee will take all the evidence away and discuss its approach to the bill and to another member’s bill—the Post-mortem Examinations (Defence Time Limit) (Scotland) Bill—on which we took evidence last week. We will be in touch with Claire Baker in due course, once we have decided how to progress matters.

That concludes the public part of our meeting. Our next meeting will be on Tuesday 27 October, after the parliamentary recess, when we will begin our stage 1 scrutiny of the Hate Crime and Public Order (Scotland) Bill by hearing from the Cabinet Secretary for Justice, Humza Yousaf, the bill team that supports the bill, and Lord Bracadale and his officials. At that meeting, we will also consider our approach to the Domestic Abuse (Protection) (Scotland) Bill and deal with some secondary legislation.

10:55 Meeting continued in private until 12:40.  



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6 October 2020

Justice Committee Stage 1 report 

What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:



  • bring a section or sections of a law that’s already been passed, into force

  • give details of how a law will be applied

  • make changes to the law without a new Act having to be passed


An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).

Delegated Powers and Law Reform committee's Stage 1 report

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

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Stage 1 debate on the Bill transcript

The Deputy Presiding Officer (Linda Fabiani)

The next item of business is a debate on motion S5M-23917, in the name of Claire Baker, on the Culpable Homicide (Scotland) Bill at stage 1. I ask those who wish to speak in the debate to put an R in the chat box. We have no spare time in the debate.

15:17  



Claire Baker (Mid Scotland and Fife) (Lab)

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:

“The SNP is supportive of this legislation and, in particular, legislation specific to Scotland. It is regrettable that the Scottish Executive has not shown leadership in this issue”.

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.

I move,

That the Parliament agrees to the general principles of the Culpable Homicide (Scotland) Bill.

The Deputy Presiding Officer

I call Adam Tomkins to speak on behalf of the Justice Committee for up to five minutes, please.

15:23  



Adam Tomkins (Glasgow) (Con)

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.

15:27  



The Cabinet Secretary for Justice (Humza Yousaf)

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.

15:32  



Liam Kerr (North East Scotland) (Con)

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.

15:36  



Rhoda Grant (Highlands and Islands) (Lab)

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.

15:41  



John Finnie (Highlands and Islands) (Green)

I congratulate Claire Baker and her team on getting the bill this far. I am a signatory to the bill and the Scottish Green Party will support it at decision time.

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.

I commend 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”. —[Official Report, Justice Committee, 6 October 2020; c 8.]

There is extensive 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.

15:44  



Liam McArthur (Orkney Islands) (LD)

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.

The Deputy Presiding Officer

We move to the open debate. I ask for three-minute speeches, please.

15:47  



Kenneth Gibson (Cunninghame North) (SNP)

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.

15:50  



Gordon Lindhurst (Lothian) (Con)

The Scottish Conservatives’ approach to the bill has been outlined by my colleague Liam Kerr. I need not repeat what he has said, but perhaps one or two comments would be appropriate.

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.

15:53  



Alex Rowley (Mid Scotland and Fife) (Lab)

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.

15:55  



James Kelly (Glasgow) (Lab)

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.

15:59  



Margaret Mitchell (Central Scotland) (Con)

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.

The Deputy Presiding Officer

I call Humza Yousaf, who has up to four minutes.

16:03  



Humza Yousaf

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—

The Deputy Presiding Officer

Excuse my interrupting, cabinet secretary, but you are difficult to hear. Can you speak closer to your microphone?

Humza Yousaf

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—

The Deputy Presiding Officer

Come to a close, please.

Humza Yousaf

—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.

The Deputy Presiding Officer

I call Claire Baker to wind up the debate. I can give you up to five minutes, Ms Baker.

16:10  



Claire Baker

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.

The Deputy Presiding Officer

Thank you, Ms Baker. That concludes the debate on the Culpable Homicide (Scotland) Bill at stage 1.

Vote at Stage 1

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Vote at Stage 1 transcript

The Presiding Officer (Ken Macintosh)

There are two questions to be put as a result of today’s business.

This is our first attempt at entirely remote voting. We will do it all through the chat box function of the BlueJeans app.

The first question is, that motion S5M-23917, in the name of Claire Baker, on the Culpable Homicide (Scotland) Bill at stage 1, be agreed to.

Members who do not agree should put an N in the chat box.

That is not agreed. There will be a division. In order to vote, we must temporarily suspend the broadcast to allow members to access the voting app.

17:19 Meeting suspended.  



17:26 On resuming—  



The Presiding Officer (Ken Macintosh)

We will go straight to the vote. I remind members that the question is, that motion S5M-23917, in the name of Claire Baker, on the Culpable Homicide (Scotland) Bill at stage 1, be agreed to. This will be a two-minute division.

Let me, or information technology colleagues, know through the chat box—[Inaudible.].

I see a message from Jamie Greene. The vote is in progress, Jamie. You should be able to vote now. There are 20 seconds left in which to do so.

Thank you, colleagues. The vote has closed. I will allow a few moments to make sure that everyone has been able to vote, so just be patient. If you think that your vote was not registered, I ask you to alert me using the chat box function in BlueJeans. If your vote has been registered, the clerks will tell you through the chat box. If it has not been registered, I will call you to make a point of order.

I will allow time to ensure that all members’ votes have been registered. Any member who thinks that their vote has not been registered should let me know in the chat box. I will then call them to make a point of order.

I believe that some members are having connection problems and so might not be able to see or hear everything on the BlueJeans chat function. At this stage, the most important thing is for them simply to let us know if they think that their vote has not been registered. For guidance, I advise members that we think that nearly every vote has been registered.

I advise colleagues that we are not still voting. We are now in the period after the vote but before I call the result. We are just ensuring that all votes were registered and that all members have had a chance to check whether their votes have been registered. I assure members that only one vote was not registered.

I call Dean Lockhart to make a point of order. [Interruption.]

I see that Michael Matheson wishes to make a point of order, but I assure him that his vote was registered.

Before I announce the result of the division, I again confirm to Michael Matheson that his vote was registered. Of all those who were logged in, there was only one member whose vote did not register. That member might wish to make a point of order to clarify that at a later stage, but it will not make any difference to the result

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Matheson, Michael (Falkirk West) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP).

The Presiding Officer

The result of the division on motion S5M-23917, in the name of Claire Baker, is: For 26, Against 89, Abstentions 0.

Motion disagreed to.

The Presiding Officer

We move to the second, and final, question.

The final question is, that motion S5M-23916, in the name of Emma Harper, on the Dogs (Protection of Livestock) (Amendment) (Scotland) Bill at stage 1, be agreed to.

Again, at this stage, I ask any member who objects to say no. I do not need any member to put yes in the chat box. The only thing that they should put in the chat box is no, if they disagree. I do not need to see any yeses; this is just for anybody who wants to say no. There will be a short pause to allow members to say no.

I think that some members may be having connection problems. I reiterate that I am calling the second vote. The question is, that motion S5M-23916, in the name of Emma Harper, on the Dogs (Protection of Livestock) (Amendment) (Scotland) Bill at stage 1, be agreed to. Members only have to put no or an N in the chat box if they disagree. I do not need to know if members agree. I am assuming that members agree unless they disagree. Members should put an N in the chat box if they disagree. [Interruption.]

I am going to give this one more go. This is the vote on the second question. I gather that there are some connectivity problems in different parts of the country tonight. The question is, that motion S5M-23916, in the name of Emma Harper, on the Dogs (Protection of Livestock) (Amendment) (Scotland) Bill at stage 1, be agreed to.

I just need to know if members disagree. If they disagree, they should put an N in the chat box. I should also just say that I will not open the vote—we will use the voting app only if there is disagreement and we need to call a vote. At this stage, as far as I can see, nobody disagrees and therefore there will be no use of the voting app.

Colleagues, there seems to be a glitch. If you do not mind, I will suspend for a few moments. I will come back, so do not leave. I am going to switch off broadcasting at this point, but do not leave the BlueJeans function. We will try to sort out the sound and vision problems, and then we will come back.

17:38 Meeting suspended.  



17:41 On resuming—  



The Presiding Officer

Unfortunately, we have not been able to satisfy ourselves that the problem with the BlueJeans platform is entirely resolved. We think that there is potential for some members to have been excluded from BlueJeans.

On that basis, I am afraid that I will have to defer the second vote this evening, on stage 1 of Emma Harper’s member’s bill. That vote will be deferred to a future meeting of Parliament. We will let all members know when the vote will be held. I am afraid that we are not going to be able to finish it tonight.

On that note, I close the meeting. We will meet again in the chamber next week.

Meeting closed at 17:41.  



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