Chamber and committees

Despite employment law being a reserved matter, the Scottish Government has gone further than any other part of the UK to help eradicate blacklisting from public contracts.

The Public Contracts (Scotland) Regulations 2015 and the Procurement (Scotland) Regulations 2016, which came into effect on 18 April 2016, contain provisions to ensure that companies that blacklist will be excluded from bidding for public contracts.

Businesses found to have breached the Employment Relations Act 1999 (Blacklists) Regulations 2010, or which have admitted this, are excluded from bidding. In order to comply with EU law, exclusion from bidding can only be for a maximum of 3 years from the date of blacklisting and a company which has blacklisted must be given an opportunity to demonstrate that it has taken appropriate remedial actions.

Statutory guidance concerning blacklisting has also been published on 17 March 2016.

Our records show that Balfour Beatty respond to European Single Procurement Documents (pre-invitation to tender questionnaires) by stating that they have not been convicted of breaches under the Employment Relations Act 1999 (Blacklists) Regulations 2010. They have also stated that previous issues regarding a number of Balfour Beatty companies using the services of The Consulting Association (TCA) are historic and that remedial action has been taken. They state that Balfour Beatty is one of eight major construction companies which have joined together to establish The Construction Workers Compensation Scheme to compensate construction workers whose names were on the TCA database.

COPFS Health and Safety Division lead the investigation and prosecution of all potential cases under the Corporate Manslaughter and Corporate Homicide Act 2007. Its staff provide advice, support and (in the case of Police Scotland) direction to investigators from Police Scotland, the Health and Safety Executive, local authorities and other regulatory agencies in relation to such cases.

Every fatality at a place of work in Scotland is investigated as a potential corporate homicide. The Work Related Death Protocol for Scotland, signed by COPFS, ACPOS, British Transport Police and the HSE, ensures that when a work-related death occurs, a co-ordinated multi-agency investigation takes place, which allows for all possible offences to be considered.

Once reported to the Crown, each case is carefully considered by lawyers within the COPFS Health and Safety Division, on the basis of the relevant law and the available evidence. Since 2009, 14 cases have been reported to the Crown in respect of potential corporate homicide as well as other charges.

Of these cases, three remain under consideration by the Crown. One case, reported in 2011, was marked for no proceedings. The remaining cases have all resulted in a conviction in solemn proceedings, albeit that there have been no prosecutions or convictions under the Corporate Manslaughter and Corporate Homicide Act 2007. In each of those cases, the accused was convicted, in proceedings under section 76 of the Criminal Procedure (Scotland) Act 1995 of breaches of section 2 or section 3 of the Health and Safety at Work etc Work 1974. The court has the same sentencing powers in relation to these offences as it has in relation to corporate homicide.

The Health and Safety Division (a specialist unit within the Crown Office and Procurator Fiscal Service) was created in October 2008. The Division grew steadily from 2009 to 2014. There were 6 legal members of staff in 2009, 8 in 2010, 10 in 2011, 9 in 2012, 11 in 2013, 13 in 2014, 13 in 2015, 10 in 2016 and 12 in 2017.

Gathering information on the date contracts were signed could only be obtained at a disproportionate cost as it would require the search of historical databases, hard-copy archives and individual contractual agreements, therefore the start date, which is held both within the Public Contracts Scotland system and internal databases, has been used.

Through making use of the Public Contracts Scotland system (where Contract Award Notices are published) and internal databases, the Scottish Government, its agencies and the Scottish Futures Trust has, or has had the following contracts with Capita:

The Scottish Government has not awarded a contract directly to Balfour Beatty to manage and maintain major trunk roads in the south west of Scotland. However, in 2013 Transport Scotland awarded the Fourth Generation (4G) Term Maintenance and Management Contract for the South West Unit to Scotland TranServ (a Joint Venture between Balfour Beatty and Mouchel).

The Corporate Manslaughter and Corporate Homicide Act 2007 (“the 2007 Act”) is reserved legislation brought forward by the then UK Government. The legislation provides for corporate liability where the way an organisation’s activities are managed or organised gives rise to a death and the management and organisation of those activities amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased person.

In any given case where sufficient evidence exists, organisations can be prosecuted under the 2007 Act. Separately, individual directors can be prosecuted under common law offence of culpable homicide or offences under health and safety legislation where sufficient evidence exists. Decisions on prosecution are the responsibility of the Lord Advocate.

As the 2007 Act is reserved, it would be a matter for the UK Government to consider whether it should be reviewed.

All grant applicants to the funding programme were notified of the outcome of the assessment process by 16 February 2018. The list of successful organisations and projects will be published before the end of this financial year.

To date £25.7m has been invested in 28 companies under the Scottish Growth Scheme.