Legal milestone in partnership law is Rosepark legacy

The Partnerships (Prosecution) (Scotland) Bill will make use, for the first time for a Scottish bill, the House of Lords Special Public Bill Procedure. This allows “non-controversial” legislation to sidestep the competition for parliamentary time on the floor of the House.

The procedure has already been used to expedite legislative proposals drafted by the Law Commission of England and Wales.

The purpose of the Bill is to close the glaring loophole that was exposed by the Rosepark fire. Ten residents of the home died at the time and four more died later in hospital.

In a 1,000-page report published after Scotland’s longest running FAI, sheriff principal Brian Lockhart detailed a series of safety defects and training failures that had directly contributed to the deaths.

Three attempts were made by the Crown Office to prosecute the owners of the Rosepark home but all foundered because their partnership had been dissolved by the time charges were laid.

It was clear that the traditional concepts of the law of partnership did not fit easily into the modern regulatory structure within which many of these organisations operate.

The Bill will permit the prosecution of the members of a partnership for offences committed during its currency, even after it has been dissolved.

Partnership law is a reserved matter so the changes must be brought before the UK parliament.

The Scottish Law Commission specifically addressed the matter of criminal liability in 2011. Its draft bill was then the subject of a Westminster consultation during 2012, with the Partnerships (Prosecution) (Scotland) Bill getting its first reading in the House of Lords last November. It was introduced by Lord Wallace of Tankerness.

The Special Public Bills Procedure allows a committee to take the bill away and consider detailed evidence submitted to it. Any peer can attend and speak, though only members of the committee can vote. The tradition in the House of Lords is that votes are usually reserved for the final report stage. The first meeting of the committee is scheduled for Friday.

Scottish Law Commissioner Patrick Layden says: “The great message is that this provides a way of getting important but non-controversial matters into law that may have been waiting for parliamentary time for years.

“It is an entirely positive thing for the Law Commission and for Scottish law.”

While it is hoped the measure will become law in this session, it will not be retrospective and can’t be used to pursue the Rosepark proprietors.