Partnerships (Prosecution) (Scotland) Bill [HL]

Lord McAvoy Excerpts

Tuesday 4th December 2012 Grand Committee

[Lord McAvoy]

My Lords, I will reply to as many points as I can. First, I place on record again my thanks to the Minister and his staff for keeping in touch. I am sorry that I did not make the meeting; I was called away on Whips’ business. However, I learnt a lot from people who were there, which will help me today.

To be on the safe side, I had better declare an interest. I am in a business partnership. The company I am in partnership with owns a public house in Scotland. That does not make anyone a millionaire these days. The other partners are my wife and son. Knowing them so well, I have no difficulty in envisaging that any of their liabilities would be mine.

Like many other colleagues here, I feel a certain amount of diffidence at being in a room with so many who are in the legal profession. The only thing that hints at that diffidence is my astonishment that there has been this loophole in the law. It is unbelievable that politicians and the legal profession allowed the loophole to be there—although, as the noble and learned Lord, Lord Fraser, said, there are doubts about why charges were not laid. Like others, I pay tribute to the Scottish Law Commission and to the Law Society of Scotland for their briefings and for the information that they have made available. We in Scotland are lucky to have them. I agree with the comment of the noble Lord, Lord Stephen, that the situation does not reflect well on Scottish justice.

The noble Duke, the Duke of Montrose, asked about the limits on liability when a partner dies. I, too, await the response of the Minister to that question. There is nothing like having a local view of how things are regarded on the ground. The account from my friend and colleague, my noble friend Lady Liddell, about the effect on relatives and the community in Lanarkshire, brought home even after a gap of years how much devastation the tragedy brought and still brings to the relatives of those who were there.

Like the noble Lord, Lord Kerr of Kinlochard, I would like to join my noble friend Lady Liddell’s daft questions club. I am sure that some have been answered—probably I did not understand either the question or the answer in the language that was used—so I, too, will ask a couple of questions. I was briefed on one question, which was also asked by the noble Lord, Lord Stephen. The Minister said that the incoming partner would not be criminally liable. Does that mean that the incoming partner will be liable for the fine? What is the share of liability if a fine is incurred? What is the intention of the Bill?

The noble and learned Lord, Lord Cameron of Lochbroom, made a forensic analysis of the Bill that I found helpful because I could understand the language that he used. The noble Lord, Lord Kerr of Kinlochard, talked about the extension of criminality. These questions are there to be asked. I will also ask about the dissolution of partnerships in Clause 2, which deals with proceedings against a former partner. The Minister mentioned the Law Society, but I was not quite sure of his answer, which is why I am repeating the question. A person may not be prosecuted for an offence when a partnership has been prosecuted for and acquitted of the same offence. There is no reciprocal clause that prevents the prosecution of a partnership where an individual former partner or partners have been prosecuted for and acquitted of the same offence. I cannot get my head around that. I have already mentioned the issue of liability in Clause 4. There must be safeguards on how that is dealt with. I look forward to the Minister’s response to the various questions from me and from other noble Lords who contributed so well.