My Lords, I thank all noble Lords who have contributed to this very helpful debate. I say immediately to those who said they were subscribing to the “daft questions” brigade that in my experience such questions are usually just as penetrating, and sometimes more difficult to answer, than those produced by the lawyers. It is important that the perspective of non-lawyers is brought to bear on this issue, because what lies behind the Bill is something that commands widespread public interest, and that transcends any narrow legal argument. I therefore welcome the contributions that have come from non-lawyers and lawyers alike, and I am particularly glad that the Committee has had the benefit of the experience of two former Lord Advocates, the noble and learned Lord, Lord Cameron of Lochbroom, and my noble and learned friend Lord Fraser of Carmyllie. My noble and learned friend Lord Fraser indicated that he could not recall such a situation arising and that, in his discussion with him, neither could the noble and learned Lord, Lord Mackay of Clashfern. Nevertheless, I think that he thought that it was a worthwhile weapon in the armoury. I think that that reflects the tenor of the debate, in which a welcome generally was given to these proceedings.
I will try as best I can to respond to the points that were made. Hopefully, I will pick up on most of the questions, but we will go through the transcript afterwards and if any questions have not been answered I will do so in writing and circulate the response. When we move into Committee there will also be an opportunity to take evidence, as well as having normal Committee debates on specific amendments.
A number of noble Lords—not least the noble Baroness, Lady Liddell, my noble friend Lord Stephen and the noble Lord, Lord McAvoy—mentioned in some detail the tragedy of the Rosepark care home fire. The noble Baroness talked about the fatal accident inquiry where, after considerable investigation, Sheriff Principal Brian Lockhart concluded that all or some of the deaths could have been prevented if the home had had a sufficiently suitable fire safety plan, and said that the management of fire safety at Rosepark was systematically and seriously defective. That gives us the context in which we are debating this legislation.
My noble friend the Duke of Montrose talked about partnerships and limited partnerships. I think it is fair to say that limited partnerships are quite rare these days, having been substantially superseded by limited liability companies. Limited partnerships are governed by separate legislation, the Limited Partnerships Act 1907. They are a type of partnership that includes limited partners—essentially, investors who play no part in the activities of the partnership. The limited partners have no liability beyond that directly connected to their investment. The Bill catches limited partnerships but, as I have indicated, they are very rare and no penalty would be enforced against limited partners.
Limited liability partnerships are not covered by the Bill as we believe that the same problems do not arise with limited liability partnerships as they do with partnerships. The essential difference is that partnerships may be dissolved instantly with no formality or any mechanism for restoring a dissolved partnership to existence. On the other hand, limited liability partnerships are registered at Companies House. Like companies, they are subject to a statutory process for being struck off the register and for dissolution, and may later be restored to the register by court order.
My noble friend the Duke of Montrose, the noble Lord, Lord McAvoy, and the noble and learned Lord, Lord Cameron, talked about the asymmetry that had been picked up by the Law Society of Scotland in its helpful briefing to colleagues. They pointed out that Clause 2(2) provides that an individual may not be prosecuted for an offence where a partnership has been prosecuted and acquitted, and asked whether the reverse should not also be the case—that a partnership should not be prosecuted where a partner has been acquitted. I do not accept that the situations are symmetrical. Typically, an offence will provide that an individual partner who in some way—I think that these are the words I used in my opening—consented or connived in the commission of an offence by the partnership will also have committed an offence. To establish the guilt of the individual, it is necessary, first, to establish that the partnership committed an offence. That condition cannot be fulfilled, obviously, if the partnership has been acquitted. However, there are numerous reasons why a prosecution against a particular partner might fail; for example, a lack of connivance or consent on the part of the individual. That does not mean that it should determine whether the partnership as an entity has committed an offence. That has to be determined by reference to the terms of the offence itself.
My noble friend the Duke of Montrose asked about the time limit of five years, which was also raised by the noble and learned Lord, Lord Cameron of Lochbroom. I think that I am right in saying that the Law Society of Scotland recommended 20 years. The fact is that the Advocate recommended two years. There is no right answer to this. It is a judgment and, as I indicated in my opening remarks, the judgment was that five years relates to the period of prescription applying to most of the civil obligations to which the estate of a former partner might be subject following the dissolution of the partnership. The majority of consultees supported five years. Clearly, if this is a matter to which noble Lords wish to return in Committee, we can readily do so.
That picks up on another point made by my noble friend the Duke of Montrose about what happens when a partner dies after dissolution. The answer is that the estate of a partner will be liable on the same basis as other partners at the time of the dissolution. As I indicated, the situation is the same as for civil obligations under Section 9 of the Partnership Act. Indeed, the fact that someone may have died is one of the reasons why five years was chosen as a period that gives some finality but, at the same time, ensures that there is an opportunity for the Crown Office to mount
a prosecution. Of course, there may be cases where a statutory time limit would—if I may use the non-legal expression—trump the five years if there is a statutory time limit from the time of the commission of the offence. My noble friend the Duke of Montrose also asked about the position with regard to individuals. He pointed out that Clause 2 does not have a similar five-year time limit. It is intended that no time limit should apply. It reflects the Scottish Law Commission’s view of existing law, which Clause 2 is intended to put beyond doubt—subject, as I said, to cases where there would be a statutory time limit.
The noble Baroness, Lady Liddell, asked whether the Balmers could be prosecuted if there was a 10-year limit. The answer is no. Under Clause 8(3), the Bill is drafted in such a way that it comes into effect only with regard to partnerships that dissolve after the date of the Bill coming into effect. The reason for this is that it should apply only to dissolutions post-commencement. To do otherwise and to make retrospective provision could readily fall foul of Article 7 of the European Convention on Human Rights.