Question proposed, That the clause stand part of the Bill.

The purpose of Clause 1 is to enable the prosecution of a partnership despite it having been dissolved. It reverses the decision of the High Court in the case that followed the Rosepark fire, which was extensively discussed when the Bill was last considered. Clause 1 contains the main proposition in the Bill, which is to prevent dissolution of a partnership from being a technical bar to prosecution. That principal purpose of the Bill is supported by the Lord Advocate, the Faculty of Advocates and the Law Society of Scotland. The provisions apply only to prosecution for an offence that a partnership is, by virtue of an enactment or rule of law, capable of committing separately from its partners.

Subsection (3) requires prosecutions by virtue of subsection (2) to be brought within five years of the date of dissolution. The period of five years matches the period of negative prescription applying to the Majority of civil liabilities to which a partnership might be subject. Subsection (5) makes it clear that the time limit is without prejudice to the six-month time limit for the prosecution of summary-only offences, which is imposed by section 136 of the Criminal Procedure (Scotland) Act 1995.

Subsection (6) makes provision for the enforcement of any fine that might be imposed on a partnership following its conviction by virtue of subsection (2). The existing law is that a fine imposed on a partnership is enforced as if it were an extract registered decree for  payment of a debt. As such, it may be enforced against the assets of the individual partners as well as against the partnership assets. Subsection (6) applies the same rules to the liability of partners of a dissolved partnership convicted by virtue of subsection (2) as would have applied had the partnership not been dissolved.

As we discussed, Mr Gray, I will make some remarks about clauses 2 and 3. In relation to clause 2, statutory offences quite commonly provide that individual partners are criminally liable as individuals where they are personally involved in the commission of an offence. Clause 2 makes it clear that the prosecution of such crimes will not be prevented by the dissolution of the partnership. Such prosecution would be competent under the present law, but the Scottish Law Commission’s report suggested that it would be appropriate to make provision in statute for the avoidance of doubt.

Clause 2 applies only where existing Laws provide that an individual partner may be prosecuted for a partnership offence. Importantly, it does not criminalise any acts that are not currently criminalised under existing law. Just as clause 1 closes off a technical bar to prosecution of the partnership, clause 2 closes down any technical objection arising from dissolution of the partnership to prosecution of a partner who is in some way culpable of a partnership offence. Clause 2 is qualified, however, so that if a partnership is acquitted of the offence, the partner may not then be prosecuted. It is thought that it would be inappropriate to do that, a court having found the partnership not guilty.

Clause 3 is essentially consequential on clause 1. Given that a dissolved partnership cannot own assets, any existing offence provision that requires fines to be met from the partnership assets would have the effect of frustrating enforcement of a fine. The effect of clause 3 is to disapply provisions that require fines to be met from the partnership assets in relation to partnerships that have been dissolved. As a result of clause 8(4), it applies only to offences committed after the Bill comes into force.

That concludes my comments on clauses 1, 2 and 3.

It is a pleasure to serve under your chairmanship once again this morning, Mr Gray, for the third Scotland-only Bill to be considered in a Public Bill Committee since the establishment of the Scottish Parliament in 1999. I am sure that most Members present know that it will not be the last.

Clause 1 deals with the main purpose of the Bill, which is to permit the prosecution of a partnership, as a distinct legal entity in Scots law, up to five years after its dissolution. Subsection (2) treats the partnership as if it had not been dissolved for the limited purposes of commencing or continuing proceedings pursuant to prosecution in Scotland, subject to the proviso under subsection (3) that a maximum of five years have passed following dissolution of the partnership.

The clause deals with the distressing aftermath for the friends and families of the 14 persons who lost their lives in the Rosepark nursing home fire in Uddingston in 2004. The partnership that ran the home could not be prosecuted as a legal entity under Scots law, given the finding in the case of Balmer v. Her Majesty’s Advocate in 2008 by the High Court of Justiciary that a partnership  ceases to exist on its dissolution by its members and therefore cannot be prosecuted in respect of any suspected offences committed. In the absence of guilt on the part of one or more of a partnership’s former members, the situation could be that no legal or natural person can be held accountable under the criminal law for potentially prosecutable offences. Although the Scottish Law Commission consulted widely on whether it should attempt to deal with the problem by virtue of a comprehensive reform of partnership law, in the end, pending consideration of wider reforms, it settled on this more targeted solution of permitting partnerships to have a degree of continuing legal personality for a limited period in terms of criminal proceedings and prosecutions.

Furthermore, under subsection (6), should a partnership be convicted of an offence, any legal rule, whether in statute or common law, relating to the liability of the partners applies as if the partnership had not been dissolved, so permitting joint and several liability for any fine imposed by the courts following a successful prosecution, in line with sections 4 and 9 of the Partnership Act 1890 and sections 70 and 143 of the Criminal Procedure (Scotland) Act 1995, and subject to the provisions in clause 3 of the Bill. Any fine imposed following a conviction may be recovered against the assets of the partnership, or any or all of the individual partners, each of whom would have a right to claim a remedy for the other shares from any assets of the partnership, or from the other partners. In some statutes, such as section 77 of the Health Act 2006, the law restricts the payment of fines to the partnership assets only, but for a dissolved partnership under the clause, that rule will not apply, because if a partnership is dissolved there will be no partnership assets, and any fine might otherwise prove to be unenforceable.

Subject to what I have to say about clause 4 later in Committee, the Opposition supports clause 1 standing part of the Bill. I will now speak briefly to clauses 2 and 3.

Clause 2 of the Bill permits the prosecution in Scotland of individual former members of a partnership, notwithstanding the dissolution of the partnership, or whether or not the partnership, as a legal entity, has been subject to prosecution, but not in circumstances where the partnership has been acquitted of the commission of the same offence.

Circumstances that could give rise to prosecutions under the clause include: potential breaches of section 36 of the Health and Safety at Work etc. Act 1974; cases where an individual’s acts or omissions have been a cause of the offence; cases where an individual is held guilty, art and part, of a common-law or statutory offence; cases where an individual has aided, abetted, counselled or procured the commission of an offence under statute law; or cases where an individual has committed an offence with their consent or connivance, or through neglect.

The range of offences potentially liable for commission by individual members of a partnership was significantly widened by the Scottish Parliament through section 53 of the Criminal Justice and Licensing (Scotland) Act 2010. Subsection (3) makes clear that evidence in relation to any proceedings against the partnership that results in its conviction may also be used in proceedings against any of its former members individually.

Clause 3 provides that any enactment that may restrict the payment of any fines imposed by the courts from the assets of a partnership, following its conviction of a criminal offence, does not apply in relation to a dissolved partnership. The Scottish Law Commission, in its report that gave rise to this legislation, was of the view that some statutes expressly provided that any fines imposed on a partnership in the event of conviction had to be paid out of partnership assets, rather than against the personal assets of the partners. Its conclusion was that such provisions had been enacted with the law of England and Wales in mind, where partnerships lack separate legal personality, of course, and therefore any effect in Scots law had been ancillary rather than intentional.

There was a divergence of views in the consultation responses sent to the Scottish Law Commission, but overall it found in favour of the argument that these provisions in pre-existing law ought not to apply in cases where fines were being levied on a dissolved partnership. The clause resolves any such remaining ambiguity by ensuring that those rules will not apply in the event of a successful prosecution of a dissolved partnership under the terms of clause 1.

Subject to what I shall say later on the Amendment to clause 4 and the new clause, the Opposition support clauses 1, 2 and 3 standing part of the Bill.

I have a question for the Minister. Will the legislation apply to limited liability partnerships that have been wound up? That is assuming they exist in Scotland; no doubt he will correct me if they do not.

I thank the hon. Member for Glasgow North East for his comments. I certainly agree with him that we would wish this Parliament to continue to legislate for Scotland for all time coming. He summarised in detail the practical consequences of the provisions in clauses 1 to 3. I do not disagree with anything he said.

In response to my hon. Friend the Member for Congleton, the Bill does not apply to limited liability partnerships. It is, as I have said on a number of occasions, a specific measure relating to an anomaly in the Laws of Scotland that did not allow the prosecution of partnerships post-dissolution. It followed, as the hon. Member for Glasgow North East said, the fire at the Rosepark nursing home.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clauses 2 and 3 ordered to stand part of the Bill.