Partnerships (Criminal Liability) (Scotland) Bill

Partnerships (Prosecution) (Scotland) Bill

Delegated Powers – Memorandum by the Scotland Office

Introduction

1. This Memorandum discusses the provision of the Partnerships (Prosecution) (Scotland) Bill which confers power to make delegated legislation, and explains why the power has been taken and the nature of, and reason for, the procedure selected.

1. The Bill, save for some minor consequential amendments which have the extent of the enactment amended, extends to Scotland only. It implements recommendations made by the Scottish Law Commission in its 2011 Report on Criminal Liability of Partnerships. It aims to prevent the dissolution of a partnership, or a change in its membership, from frustrating the prosecution of the partnership, or of individual partners, in respect of offences committed prior to the dissolution or change. This addresses the implications of the decision of the High Court of Justiciary in Balmer v HM Advocate, in which it was held that the dissolution of a partnership prevented its prosecution in respect of alleged offences under the Health and Safety at Work etc Act 1974 relating to a fire at a nursing home in which 14 residents were killed.

Clause 6(6): Power to make consequential amendments

Power conferred on:Secretary of State

Power exercisable by:Order made by Statutory Instrument

Parliamentary procedure: Affirmative resolution where amending an Act of Parliament or Act of the Scottish Parliament; otherwise negative resolution

1. Clause 6(6) confers power upon the Secretary of State to make such further amendments to any enactment as appear to him to be necessary or expedient in consequence of the Bill.

1. When considering its recommendations, and as reflected in its draft Bill, the SLC concluded that it was possible that not all of the consequences of the changes made by the provisions of the Bill will have been identified in the course of its preparation. Although the consequential amendments which have been included in clause 6(1) to (5) of the Bill (principally in relation to procedural matters connected with commencing prosecutions) are all those which are thought to be required, the Government agreesthat it would be prudent for the Bill to contain a power to deal with any unforeseen matters in secondary legislation. It is noted, however, that the scope of the Bill itself, in dealing with a discrete point of criminal law and procedure, is relatively narrow and accordingly any consequential provision capable of being made under this power will be similarly restricted.

1. Any amendment made under this power will have the same extent as the enactment, or the relevant part of the enactment, to which it relates (clause 8(6)).

1. Any order under this clause which amends an Act of Parliament or Act of the Scottish Parliament will be subject to the affirmative resolution procedure (and otherwise will be subject to negative resolution procedure). The Government submits that this approach strikes the correct balance and accords with usual practice in requiring affirmative procedure when a delegated power is used to amend primary legislation.