DPRR/12-13/38
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.
2. 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
3. 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.
4. 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 agrees that 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.
5. 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)).
6. 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.