A Bill created to close a legal loophole on the prosecution of partnerships reached a milestone in its journey through Parliament last month, when it was approved by the House of Lords. It has now begun its passage through the House of Commons.
Partnerships (Prosecution) (Scotland) Bill
The Partnerships (Prosecution) (Scotland) Bill was introduced to implement recommendations made by the Scottish Law Commission for reform of the criminal liability of partnerships in Scots law.
It was introduced to the House of Lords on 5th November 2012 by the Advocate General for Scotland, Lord Wallace of Tankerness, and was the first wholly Scottish Bill to be introduced at Westminster since 2004. It was also the third Bill since devolution to have Scotland-only extent.
Background to the Bill
The purpose of the Bill is to close a legal loophole allowing partnerships to evade prosecution by dissolving.
The need for such legislation became apparent in the aftermath of the Rosepark nursing home tragedy in Lanarkshire, where 14 elderly residents were killed in a fire in 2004.
Following these deaths, the Crown Office tried on three separate occasions to prosecute those alleged to be responsible for the deaths, but the attempts were unsuccessful because of a loophole which prevented the prosecution of a partnership once it had been dissolved.
Legal personality of a partnership
This is because at the moment the legal personality of a Scottish partnership ends immediately upon its dissolution. It - the partnership - cannot therefore be prosecuted, because it no longer exists. There is also some doubt as to whether the legal personality of a partnership is affected by changes in the membership of the partnership, such as when a partner resigns, or a new partner is assumed.
The Rosepark nursing home case highlighted these discrepancies, and the fact that the traditional concepts of the law of partnership do not fit easily into the modern regulatory structure within which many partnerships operate.
Review of partnership law
The Scottish Law Commission had previously undertaken a review of the general law of partnership in conjunction with the Law Commission for England and Wales, but this did not focus in any great detail on the issue of criminal liability.
The Commission therefore carried out a further review, with particular emphasis on preventing the avoidance of such liability by the dissolution of the partnership.
It published its final report on the matter in December 2011, putting forward a number of proposals on how this legal anomaly could be addressed. It also provided a draft Bill.
When the Bill was introduced to the House of Lords, the Advocate General highlighted that it was the product of much collaborative effort between the UK Government and the Scottish Law Commission, and that it was supported by the Crown Office.
“The Rosepark fire was a terrible tragedy, compounded by the fact prosecutors were unable to find a legal basis to bring those responsible for the deaths of 14 vulnerable people to justice,” he said.
“Closing this loophole is important and it will ensure no one will have to endure the same frustrations as the bereaved families in this case in future. Simply dissolving a partnership will no longer put you beyond prosecution,” he concluded.
Next steps
The Bill completed its passage through the House of Lords on 27th February 2013 and was presented to the House of Commons on the same day. This is known as the first reading and there was no debate on the Bill at that point.
The date of the Bill’s second reading debate has yet to be announced.
Contains public sector information licensed under the Open Government Licence v1.0.
