[Relevant documents: First Joint Report of the Home Affairs and Work and Pensions Committees, Session 2005–06, on the Draft Corporate Manslaughter Bill, HC 540, and the Government’s response thereto, Cm 6755; twenty-seventh Report from the Joint Committee on Human Rights, Session 2005–06, Legislative Scrutiny: Corporate Manslaughter and Corporate Homicide Bill, HC 1625.]
Order for Second Reading read.
I beg to move, That the Bill be now read a Second time.
The Government are committed to a properly balanced criminal justice system—a criminal justice system that protects the public inside and outside the home and in the workplace.
In opening the debate, may I first pay tribute to Maurice de Rohan, who died late last week? Maurice de Rohan lost his daughter, Alison, and son-in-law, Francis, in the 1987 Zeebrugge ferry disaster, which claimed the lives of 187 people. He brought together people affected by a series of tragedies in the late 1980s, out of which sprang the charity Disaster Action, which has provided an important advocacy and advisory service, giving voice to the survivors and the bereaved of major disasters and contributed significantly to the debate on corporate manslaughter. Maurice remained chairman of Disaster Action until October 2005 and was a trustee until his death. It is fitting that we mark his passing on this occasion.
I would like to associate everyone with those remarks. One important fact about Maurice de Rohan that is worth recording is that despite his personal tragedy, he maintained his own sense of humanity in every action that he took. It is wholly fit and proper for us to take note of my right hon. Friend’s tribute today.
I thank my hon. Friend for his intervention. He spoke for many in the House who knew Maurice de Rohan.
It is as a result of the efforts of Disaster Action and, indeed, of others such as the trade union movement that have campaigned hard for reform that we are debating the Bill today. I pay tribute to all their efforts, including those with whom we are in substantial as well as entire agreement, and those with whom we have longstanding differences. The commonality of effort and objective here is far greater than any of the differences that separate us.
Each year, more than 200 workers and many more members of the public are killed as a result of work-related incidents. Some are extremely serious incidents, in respect of which the companies involved have been strongly criticised.
Is the Home Secretary aware that in Saltwell park in my constituency there is a memorial to those who have died in the course of their employment? At this year’s remembrance service, I was proud to be able to announce that the Government would be introducing this measure, so I congratulate the Home Secretary on speaking to the Bill this afternoon. However, he will also be aware of some concerns about weaknesses in the Bill as drafted—not least in the definition of senior managers and in respect of the range of available penalties. Will he assure the House that such matters will be thoroughly scrutinised in Committee and that any weaknesses will be corrected to firm up the Bill and make it even better than it is now?
I can assure my hon. Friend that I am aware that, irrespective of our agreement on general objectives, some outstanding disagreements remain. I hope that we can remedy one or two of those today through my speech and we will no doubt debate and, if possible, agree others in the course of proceedings on the Bill. In either case, I assure him that we will be open to working with him and others to give the Bill the greatest scrutiny possible. I would have preferred to introduce the Bill earlier because of its importance to many people, not least many of my colleagues in the trade union movement. Whatever our differences and despite the delay, I hope that there is a welcome for the Bill after eight or nine years. I am delighted to put it before the House.
There have been terrible examples in which the loss of life was extensive, and the companies involved have been strongly criticised. In the case of the Herald of Free Enterprise disaster, Lord Justice Sheen found that from
“top to bottom the body corporate was infected with the disease of sloppiness”.
Right hon. and hon. Members will be fully aware of the consequences of that terrible disaster. Last year, Mr. Justice Mackay described the circumstances of the Hatfield crash in 2000 as
“the worst example of sustained, industrial negligence in a high-risk industry”
that he had ever seen.
Despite such examples, the law as it stands in relation to corporate liability makes prosecutions in such cases extremely difficult. A prosecution for corporate manslaughter can proceed only if gross negligence can be proved against individual senior managers. That means that the courts must judge corporate negligence on a narrow and sometimes artificial basis. The result is that only a handful of corporate manslaughter prosecutions have ever been brought successfully. Furthermore, all have been against small companies, rather than large organisations such as those involved in the tragedies that I mentioned.
Several of the families who believe that criminal prosecutions should have been brought in the cases of their loved ones who have been killed in incidents in workplaces are in the Public Gallery today—
Order. It is not normal practice to refer to people outside the Chamber when addressing the House.
I appreciate that, Mr. Deputy Speaker. I simply wished to ask whether my right hon. Friend and his colleagues would be willing to meet families who have real experience of how the current system is failing.
As my hon. Friend points out, a great range of people have an interest in the objective that we share today. Some of them come from the trade union movement, but the concern of many has been provoked by personal bereavement and grief. I hope that the Bill’s introduction will give them some consolation, small though it may be. We will try to address the points raised and to meet some of those who have a direct interest in the issue. If I cannot personally do so, I know that the Under-Secretary of State for the Home Department, my hon. Friend the Member for Bradford, South (Mr. Sutcliffe), will. In fact, I congratulate my hon. Friend on the persistence with which he has pursued this issue. He was centrally involved in the discussions in Warwick on this issue and he has met many people to hear their stories. I am sure that he will be the first to make himself available to meet anyone who wishes to meet me if, in the short term, I cannot do so. I hope that that will apply to anyone who wishes to raise matters with us.
The Home Secretary knows that many colleagues have waited a long time for such a measure. I was one of those who represented the Marchioness relatives and survivors. Many urban Members have represented the relatives of those who worked in the construction industry and lost their lives. Does the right hon. Gentleman believe that the penalties for which the Bill provides, especially for the large corporations, will be sufficient to ensure that the change of law is understood and that the practice of our big companies changes as a result of the Bill’s enactment?
The extent of the fines should have some effect. The fines provision is for unlimited fines, which is appropriate. One of the big changes is that people will be able to see that not only the gross negligence, beyond reasonable doubt, of one or more persons, but the systemic failings or gross negligence in a company, beyond those at the top, can be taken into account when making a judgment. I hope that a combination of that expansion of scope and the unlimited nature of the fines will provoke better conduct and better concern on everyone’s part.
Now is perhaps an opportunity to raise an issue that I had intended to mention later. How does the Home Secretary envisage providing guidelines to differentiate the levels of fines that are currently imposed under sections 2 and 3 of the Health and Safety at Work, etc. Act 1974 and the fines that will be imposed for corporate manslaughter, given that both are unlimited in the Crown court and that all the most serious cases end up there?
Basically, as we are considering a corporate offence, imprisonment will not be an option because individuals will not answer on behalf of any company or corporate organisation except in a legal capacity. Fines will be unlimited and one would expect substantial fines for the sort of offence that we are considering. Of course, high fines have already been imposed in serious cases. For example, in the Balfour Beatty case, the fine was more than £7 million. Railtrack was fined £3.5 million in the Hatfield case. I believe that Transco was fined approximately £15 million for health and safety breaches. When we can bring such cases under existing law, that shows the seriousness with which the courts take them. However, the unlimited nature of the fines and their ability to be imposed without the need to prove individual liability, but taking into account systemic failures in the company or corporate organisation as a whole, is a sufficient combination to act as a deterrent to anyone who would conduct themselves in a fashion that would put people at risk.
Will the Home Secretary give way?
If I may make a little progress, I promise to give way to the hon. Lady later.
Companies and other organisations must be held properly to account for gross corporate negligence that has led to loss of life. It is not enough for those failings to be punished under health and safety law. That is, to some extent, a response to the hon. Member for Beaconsfield (Mr. Grieve). We want to give victims and their families the justice of seeing an organisation properly held to account for corporate manslaughter, and not only individual responsibility. We want organisations, corporations and incorporated institutions to be held to account for actions that have led to deaths, sometimes on a massive scale.
I do not think that I can do better than to quote the mother of a young person killed at work. In evidence to the Home Affairs and Work and Pensions Committees, she said:
“A successful prosecution brings into the public domain all the failings that led to a preventable death and, very importantly, it shows that this country values all human life and is prepared to punish those who are negligent or indifferent to the lives of workers.”
I believe that that encapsulates the feelings that many in this House have expressed.
I shall give way first to the hon. Member for Solihull (Lorely Burt).
On punishment and fines, will the Home Secretary explain why directors can be disqualified for gross breach of duty in respect of shareholders’ investments, but not in respect of human lives?
I do not think that that is correct. People can already be held to account for gross negligence that results in the loss of life, or in any other substantial loss, although a certain level of proof is required. The Bill introduces the concept of corporate manslaughter, which means that a corporate organisation can be held to account if its systemic and institutionalised failures and negligence across a range of activities are shown to have led to a death.
I will go further than that. If the House passes this Bill, it will be possible to take a corporate organisation to court, expose it to public scrutiny and impose on it a guilty verdict and a substantial, unlimited fine, while individuals can be tried simultaneously for gross negligence leading to manslaughter. The hon. Lady’s premise is therefore wrong and I assure her that the Bill will not diminish the right to deal with individuals.
Will the Home Secretary give way?
I shall give way first to my hon. Friend the Member for Warrington, North (Helen Jones) and then to the hon. Gentleman.
My right hon. Friend is right to argue that all people deserve the protection of the law in this matter, but the Bill makes an exception for unincorporated bodies, such as large partnerships. Will he undertake to look again at the matter in Committee, given that it is already possible—under the Companies Act 1985, for example—for such bodies to be prosecuted? We need to provide equal protection for all employees, regardless of the nature of the organisation that employs them.
It will, of course, be possible to look at all such matters, including that one, during the House’s deliberations on the Bill. The current law does not extend to unincorporated bodies. Evidence from the Health and Safety Executive indicates that only 2 per cent. of the prosecutions that it mounts are against unincorporated bodies—
I am talking about the Bill before the House today. I hope that that helps the hon. Gentleman to calm down.
The evidence is that only 2 per cent. of HSE prosecutions are taken out against unincorporated bodies. We can discuss the matter that my hon. Friend the Member for Warrington, North raises, but typically the bodies to which she refers are smaller businesses such as building firms, sole traders and so on. Individual prosecutions are likely to be possible in cases involving such bodies, and in fact most individual prosecutions have been brought against the very firms to which she has referred. There is a gap, as I think the whole House accepts, in taking larger incorporated organisations to task for systemic failures across the organisation that have sometimes resulted in a considerable number of deaths, as I pointed out. That is where we have concentrated our efforts.
I should like to make a little progress. I have been speaking for 19 minutes but I have reached only page 7 of 24. I will attempt to move on quickly.
The Government are determined to make corporate manslaughter laws just, and the Bill aims to create a clear and effective criminal offence. Our approach is based on recommendations from the Law Commission and on extensive consultation, including with trade unions, industry and those representing the victims of work-related death, although I realise that we have not agreed on everything in those consultations. In particular, I am indebted to my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) and members of the Select Committees on Home Affairs and on Work and Pensions who carefully scrutinised the legislation in draft. We have adopted a number of the Committees’ recommendations, although not in every particular, and they have had an important influence on the final shape of the Bill in several areas.
What the Bill does can be stated simply. The new offence of corporate manslaughter represents an advance in two major ways. First, it provides a new test for the application of the corporate manslaughter offence to companies that will allow the courts to look at collective management failure within an organisation, thus enabling, for the first time, a proper examination of corporate negligence, on the corporate scale.
The Bill goes further and, secondly, removes Crown immunity. That is a far-reaching and historic development. For the first time, Departments and other Crown bodies will be liable to prosecution in the criminal courts. I understand that there is an argument about the extent and scope of the measure, but I hope that we have got it right by excluding public policy matters. Nevertheless, this will be a major step in removing Crown immunity from Departments and other Crown bodies.
On the test for liability, the new offence of corporate manslaughter radically modifies the law. It moves away from the question of who managed the company to the question of how the fatal activity was managed—a significant shift that is more than mere semantics. No longer will a successful prosecution depend on proving gross negligence by isolated individuals. Prosecutors will be able, for the first time, to focus on collective failure, as I said earlier.
Will the Home Secretary give way?
In a second.
As the intention is to target truly corporate negligence, however, it would be wrong if organisations were prosecuted on the basis of isolated or unrelated management failings at relatively low levels of the organisation. For that reason, the new offence requires there to have been gross failure by senior managers. Again, I understand that people will want to discuss that point during our deliberations and we shall always be prepared to undertake such scrutiny and will be able to go some way—[Interruption.]—I shall give way when I have finished this point.
When we published the Bill in the summer, many people, including the scrutiny Committee, felt that the test of liability was too narrowly drawn and that the new offence might as a consequence fail to rebalance the law in the direction of corporate rather than individual negligence. It is critical that the new offence has public confidence, so we are taking those objections seriously and will table amendments in Committee. I will write to the right hon. Member for Haltemprice and Howden (David Davis) and to the hon. Member for Sheffield, Hallam (Mr. Clegg) and their colleagues shortly to outline our proposals in greater detail, but I hope that at least on this issue they will go some way towards meeting the reservations expressed when we introduced the Bill.
Will the Home Secretary give way?
I will give way to my hon. Friend the Member for Reading, West (Martin Salter) and then to the hon. Member for Dundee, East (Stewart Hosie).
The Home Secretary will be aware that, in October 1999, 31 people died in the horrific Paddington train crash and that many more were seriously injured, including a number of my constituents. After pleading guilty to health and safety offences, Thames Trains got away with a £2 million fine. That is a fraction of the money that the directors made from the two management buy-outs that have occurred since rail privatisation. If this very welcome measure had been on the statute book at the time of the Paddington disaster, what different outcomes could the survivors of that crash have expected?
I agree very much with what my hon. Friend says, and two provisions would be particularly relevant to the case that he mentions. We have already discussed the first of those provisions—unlimited fines—and the second is, of course, that on remedial orders. Fines and compensation orders are usually the most effective ways to penalise companies that are found guilty of criminal offences, but I fully recognise that financial penalties alone—the point that he makes—may not always be enough to change undesirable business behaviour.
Of course, alternative sanctions have been explored, because the issue goes wider than just corporate manslaughter. The Macrory review is conducting a comprehensive investigation into corporate sanctions. Its final report is due out this autumn and will identify a number of options, including corporate rehabilitation orders, community projects and publicity orders. However, the unlimited fines and the remedial orders in clause 10 are particularly appropriate to the subject that my hon. Friend raises.
I am grateful to the Home Secretary for giving way on this point, because the clause on remedial orders is the only one that seems to be entirely otiose. Under the Health and Safety at Work, etc. Act 1974, the availability of prohibition and improvement notices is so powerful a regime that I find it very difficult to understand how a remedial order can possibly add anything to the powers available to the Health and Safety Executive. I say this in a spirit of conciliation, but I do not think that we should put on to the statute book orders that, in fact, will have no practical significance, because such powers already exist.
We certainly believe that we are supplementing and adding to the measures that the hon. Gentleman mentions, but this is a perfectly legitimate issue for discussion and deliberation during the passage of the Bill. However, we would not be taking this action if we did not think that it added another dimension to that which already exists.
The Home Secretary will be aware that, as a result of a Sewel motion, the Bill covers Scotland, and he has mentioned collective failure on a number of occasions. What is the practical difference between the Bill and the current Scottish position, whereby it is possible to convict a company of a common law crime if the prosecution identifies a group of individuals collectively who were deemed to be the company’s controlling mind, whose acts could be said to be those of the company and who were guilty of that crime? What practical improvement will the Bill provide?
The hon. Gentleman will know the history. An expert group was set up in Scotland, and the Scottish Executive and the Government amicably decided that the matter would be more appropriately dealt with under health and safety legislation. Of course, that is an issue with which we deal, but we have listened very carefully in framing our general Bill to address the points that were made in Scotland.
The hon. Gentleman talks about a group of individuals. I understand, although I will stand corrected in correspondence with him, that it must be illustrated that each individual in that group bears responsibility. Our understanding is that the Bill will supplement that dimension by allowing the consideration of the institutionalised, systemic fact of failings at a lateral level, not just among the top people and not just where individual responsibility can be illustrated in every case. If the Bill were to become law and a systemic failure occurred, it could be taken into account when considering a breach of the law.
As I told the hon. Member for Beaconsfield (Mr. Grieve) in answering the last question, the Bill adds a dimension and supplements and strengthens the existing law, although I am, of course, aware that there are those in Scotland, as there are those in England, who want us to go further. Although we think that we have got the balance right, we will, of course, listen during the passage of the Bill.
Will my right hon. Friend give way?
Yes, I will, but there are two Members on the Liberal Front Bench, and I like to hear both points of view from the Liberals.
Yes, all three. May I return the Home Secretary to the question of the test for liability and ask him to address another possible weakness in the way that the provision has been set out? The test for liability connects the crime of gross negligence with the duty of care in civil law. Does that mean that the crime that we are discussing today would not apply in the cases of the cockle pickers or the 58 illegal immigrants who died in the back of a lorry? The courts might well say that there was no civil duty of care in those cases.
No, I do not think so. We have retained the duty of care because it is already extant in law and because we believe it would reinforce the case against employers. Indeed, when being briefed on the Bill, I asked what would happen if a train that crashed after coming off the tracks killed not only passengers—the company would clearly have a duty of care to them—but bystanders. The legal advice on the Bill that I have received is that if that could reasonably have been foreseen, the duty of care would still apply in that case. I do not think that the position is quite as simple as the hon. Gentleman makes out. The retention of the duty of care is intended to strengthen the Bill rather than weaken it.
I hope that the Home Secretary can write to my hon. Friend to clarify that because we believe that the case of Wacker v. Regina suggests that the Home Secretary’s advice to date would not cover the case of the cockle pickers.
May I take the Home Secretary back to the important point that he made a few minutes ago when he said that he would write to those on both Opposition Front Benches about the test in the Bill with respect to senior managers? It is important that he give the House a little more indication of what changes the Government have in mind on that point, as it is fairly crucial to whether the Bill will have the effect that the Government claim it will. Many people have commented on the Bill, which suggests that the senior manager test will have the same identification problem as the previous common law offence. Can the Home Secretary assure the House that the test will be got rid of and that the provision will apply in respect of failure by the corporation as a whole, as opposed to failure by just senior managers?
I cannot assure the hon. Gentleman that the test will be got rid of. However, in the spirit of compromise to which we are always urged by the Liberal Democrats, I can say that we are looking at the issue again. As I said earlier, this is one of the points about which we want to write to him and his colleagues, as well as to Her Majesty’s official Opposition, with a view to widening the test. When we introduced it in the summer, I recognise that people had reservations about it, so we are prepared to consider it again.
I express no view on the case of the cockle pickers, but I tried to be clear that we did not accept the need to remove the test on duty of care. It is the basis for the current law and we do not see a compelling case for changing it. I merely point out that the offence will often involve a failure to act—not just an action, but a sin of omission as well as a sin of commission—and the provision needs to be underpinned by a duty to act. It strengthens the case in illustrating a failure to act if it is possible to point out that there was a duty to act in a certain fashion in the first place. That is why we believe the provision strengthens the Bill.
I will give way to my hon. Friend the Member for Barnsley, West and Penistone (Mr. Clapham), but then I will try to make a little progress—otherwise, I will get into terrible trouble.
The hon. Member for Beaconsfield (Mr. Grieve) referred to prohibition orders under the Health and Safety at Work, etc. Act 1974 and suggested that there was probably no reason to have remedial orders, but are not remedial orders much more than prohibition orders? We are looking at systemic failing and even the possibility of looking at the method of work. In a difficult situation—for example, a complex situation of construction—one might even take into consideration the entire system of work with a remedial order. That would not be possible with prohibition orders.
My hon. Friend has hit the nail on the head. That is precisely the point that I was trying to make. What we are suggesting goes beyond—it supplements—the prohibition orders that were mentioned earlier. Of course, we can discuss all that in Committee, but our understanding and our intention is to strengthen the existing position and to add to it, rather than just to replicate it.
I will summarise the points so far. Rather than framing the new offence solely in terms of the way an incident was managed by senior managers, we will reframe the test so that it takes into account the management of the fatal activity generally within the organisation. That is the point that was raised. However, the test would not allow a prosecution to succeed unless a substantial element of the organisation’s failure lay at a relatively senior management level. I accept that that is a point of balance, but it is something that we are willing to discuss. I also think that that will provide a more flexible approach than is currently in the Bill, because the test will encompass all aspects of the way in which an activity was managed in an organisation. But it will still need to be shown that a large part of the failure lay in the way in which the senior management of the organisation exercised responsibility. That will ensure that the offence remains targeted on truly corporate failings, rather than just individual failings.
As regards gross failure, the new offence is not about replacing health and safety laws or turning every work-related death into a corporate manslaughter prosecution. The offence will be reserved for the worst cases of corporate management failures. Failings will need to be gross: in other words, fall far below the acceptable standards. That is the test for manslaughter in other walks of life and it is right that it should be the test for corporate manslaughter.
In deciding a case—in judging gross failure—the jury will have to look at how far the organisation is in breach of its health and safety duties. That grounds the new offence firmly in the clearly established framework for managing health and safety with which employers are already familiar. So no one can say that there is a complete blank sheet and that people have to start learning practices and procedures, and the organisation of their corporate responsibility in a completely new fashion.
Nor is the Bill about increasing the regulatory burden on business. It will be well known by now—after nine years of this Government—that our economic strength is underpinned by the valuable contribution made to our society by employers and industry. They have the right to operate unburdened by unnecessary red tape. But employers have a responsibility to ensure the safety of their employees. That is part of the balance of social justice, along with a dynamic economy, that has always been a mark of the Government. The safety of employees is supplemented by what organisations owe to their customers and others affected by their activities. The offence of corporate manslaughter will hold accountable those organisations that show a clear disregard for the health and safety of any of those.
In passing, I declare an interest as a member of the Transport and General Workers Union whose constituency receives money from the trade union solicitors Thompsons.
In terms of what the Bill is trying to do, I am sure that my right hon. Friend would agree that prevention is better than cure, although sometimes we have to go down the cure route, as we are. I put it to him that if he were a member of a senior management team of an organisation employing people, he would be a little more careful in making sure that there was not a systemic breach of health and safety requirements if he himself were at risk of a custodial sentence. He would take more care and prevention would be better. I urge him to look again at that as a deterrent effect—as a preventive measure.
May I respond fraternally to my hon. Friend and fellow member of the Transport and General Workers Union by saying that I have already pointed out that an individual director or manager who can be proven to be guilty of gross negligence can, at the moment, be prosecuted for gross negligence and manslaughter in that way? So at the moment, there is nothing to prohibit that, and nor does anything in the Bill prohibit it; it can still be achieved. The Bill supplements that by stating that, even where that individual cannot be shown himself to have acted with gross negligence, nevertheless, if he and others in the senior management have acted in such a way that a systemic failure across the organisation has resulted in death and destruction on a significant scale, they ought, in addition to the individual responsibility, to be open to the corporation’s being fined or faced with a remedial order. Of course, it is “corporate” manslaughter, so individuals are not held responsible; rather, the incorporated institution itself is.
I give way to the hon. Member for Buckingham (John Bercow).
I am very grateful to the Home Secretary for giving way. Stopping slightly short of the point advanced by the hon. Member for Wolverhampton, South-West (Rob Marris), it nevertheless occurs to me that, in cases where senior managers responsible—at least in part—for such systemic failure are directors of the company, no provision appears to be made in the Bill for their disqualification from continuing as company directors. If I am correct in that surmise, is the Home Secretary working on the assumption that, in the most extreme cases, corporate embarrassment will probably suffice to remove such individuals from their posts? If not, upon what basis is he working?
I am grateful to the hon. Gentleman for raising this issue, and I am obviously not getting the point through. It is already the case that directors can be disqualified if they are convicted of an offence related to the management of the company, and that includes health and safety offences. It is already the case that a director can face other penalties, as an individual. What the Bill does is to make the corporation liable to penalties, which is why the term “corporate” manslaughter is used. It supplements the existing law, which allows cases to be brought against, and penalties imposed on, directors as individuals.
On directors’ duties, which is a different issue, we are not further extending our consideration of those duties—quite apart from the fact that that is the territory of the Secretary of State for Work and Pensions, rather than mine—because the matter has already been taken up. The Health and Safety Commission has considered this very issue and it has asked the Health and Safety Executive to produce new guidance precisely on directors’ responsibilities. The HSC will return to this issue in the light of developments on corporate manslaughter, of the report from Professor Macrory—the Macrory penalties review—and of the introduction of statutory directors’ duties under the Companies Bill. In short, directors are already liable to punishment and disqualification in the way that was asked for earlier, and directors’ duties are already being examined elsewhere, separately from this Bill; there may be developments in that regard. In addition, we are introducing the offence of corporate manslaughter, so that the institution of which the person concerned is a director can also be held responsible.
If I may, I shall make a little progress and then come back to my hon. Friend the Member for Paisley and Renfrewshire, North (Jim Sheridan), who tried to intervene some time ago.
In turning to the application of the law and the question of who can commit the new offence, I want to deal with two issues: the restriction of the offence to organisations, not individuals; and how the offence applies to some public bodies. I think that I said enough on the question of individuals when answering the last question, but the Bill’s innovative aspect lies in its attempt to ensure corporate accountability. Often, responsibility is not capable of being laid at the door of one person, but lies with the corporate body overall, which is why we have introduced this Bill. Evidence given by the HSC to the scrutiny Committees identified that many incidents arose from systemic failures, rather than from the culpability of the actions of one individual. The new offence reflects that reality. It is a reality that all working people know in practice: very often, such situations do not just come down to one culpable director, but there are systemic failures that run through a corporation and that are not remedied, despite the fact that the corporation at all levels is constantly told about them by the worker, and that results in damage or death to people who work for that corporation—or, indeed, to its consumers.
This framework would not be improved by introducing secondary liability. If individuals have acted recklessly or grossly negligently or in a way that contravenes health and safety law, they will be guilty of a criminal offence under existing laws. That is the current position. The new offence is intended to sit beside those offences and provide a more effective means of attributing manslaughter to companies and corporate organisations. It is not a part of that aim for the offence to be a vehicle for extending or redefining when individuals are guilty of offences.
I thank my right hon. Friend for giving way, and at this stage it might be appropriate to remind ourselves that without a Labour Government, the Bill, warts and all, would never have seen the light of day.
Most of these fatalities and injuries take place in the construction industry. My right hon. Friend will be aware that many migrant workers are now employed in that industry, and many of them cannot read or understand English, thereby putting their own lives and those of others in danger. Is there any provision in the Bill that will force employers to train and educate their employees to read and understand English, and in particular health and safety law?
I am glad that I gave way to my hon. Friend. In the midst of the questions that are being asked, it is heartening to realise that there is a widespread recognition that, whatever our qualifications and reservations, people feel that the Bill is long overdue. I am also delighted that those comments were made because I know that my hon. Friend was involved in the Bill on gangmasters and has long been a supporter of taking action in this area.
My hon. Friend raised an extremely important point about migrant workers and those who do not have access to the English language and to certain documents. We are working on that; we are trying to ensure that we provide sufficient advice on matters such as those that my hon. Friend raised, in order to bring them to the attention of those who do not read and write English in the way that some of us do—although, for all I know, they might speak English as well as some of us do. However, we are looking into that.
On Crown immunity, the new offence will apply to Government Departments and other Crown bodies. For the first time, those bodies will be liable to prosecution for a criminal offence. It removes the anomaly created by Crown immunity and means that the public sector and the private sector will have the same liability under the new offence. That is a historic step.
There is no good reason why Government Departments should be in a different position from their private sector counterparts for their responsibilities as employers or for securing the safety of their premises. These responsibilities are covered comprehensively by the offence for all employers. But there are exemptions, because there are differences between the Crown and other public authorities on the one side and the private sector on the other, and they are differences that demand recognition.
Public bodies already operate within a strong framework of standards and accountability. Ministers are responsible to the electorate via Parliament, and fatalities can lead to public inquiries and other independent investigations. Public bodies are subject to specific obligations such as the Human Rights Act 1998, and their actions are open to challenge through specific mechanisms, including judicial review. Although this Bill provides a step towards equalising the approach in the public and private sectors, there are nevertheless differences between them because there is already a series of scrutiny mechanisms that apply to the public sector.
The Home Secretary has made a number of references to the sinking of the Herald of Free Enterprise. I remember that tragedy well, because I was sailing on cross-channel ferries at the time, and representing merchant navy officers in a union. But is it not the fact that, for all the gross incompetence and gross negligence that took place before and during that incident—the systemic disease of sloppiness that the judge talked about—if this Bill had been enacted by then, although the company corporate would have had a very high fine, the result would have been that the acquisition of the company by P&O might have happened faster and the changeover would have taken place, but the senior directors and responsible managers would have walked away scot-free?
I do not think that that would happen under this proposed legislation. That is why it is an improvement. However, it is true that the number of cases that have previously been brought under corporate manslaughter in the absence of this proposed legislation is very small indeed; there have been about seven since 1992, and all of the companies involved have been very small. So to that extent I very much take on board the point that my hon. Friend makes.
I must now give way to the hon. Member for Beaconsfield (Mr. Grieve), and then I shall attempt to make some progress.
I thank the Home Secretary for giving way. Can I raise a point about public authorities? The Home Secretary makes a perfectly valid point in saying that there might be particular problems with public authorities in the exercise of some of their functions, but people will find the following situation rather strange in respect of individuals within an organisation: for instance, a hospital doctor might be prosecuted for manslaughter and it emerges in the course of the case that there were systemic failures in his training, and, as I understand it, the health trust responsible for that would escape prosecution under these provisions. I hope that we can look at that area again. Similarly, a police authority or force could escape prosecution for failings of their officers leading to the death of an individual. It seems to me that what is sauce for the goose is sauce for the gander, and if we are holding individuals to account in such circumstances, it is very strange if we do not provide a mechanism within corporate manslaughter legislation that also allows the authorities to be held to account.
I am not able to give legal advice to the hon. Gentleman off the top of my head, but I shall risk advising him that I think that he is probably wrong in respect of the health trust, but not on the police. However, I will write to him if my current advice is wrong. [Interruption.] My hon. Friend the Member for Wolverhampton, South-West (Rob Marris) shouts from a sedentary position that that was spoken like a true lawyer.
While it is true that what is sauce for the goose is sauce for the gander, it is by definition also true that a goose is different from a gander, and in this case public bodies and Government Departments are different from private organisations. Private organisations have different responsibilities, but they are not subject to the strong mechanisms for accountability and scrutiny to which public bodies are already accountable. All deaths in custody are subject in public bodies to an independent investigation. The prisons and police and others have separate ombudsmen, who report publicly, and very often to Parliament. There is an Independent Police Complaints Commission, for example. All deaths in custody are also subject to coroners’ inquest in public, with a jury. Individual criminal proceedings and disciplinary processes are available in appropriate cases, and that is only in respect of the police and the criminal justice system, which the hon. Gentleman mentioned. Therefore there are a huge number of mechanisms that already scrutinise public bodies and Government Departments, but that do not do so in the case of private organisations. That is recognised in the Bill by not applying exactly the same rules and regulations to public and private sectors.
I maintain however that the removal of Crown immunity is an historic, unprecedented step. The hon. Gentleman might point out that in his view it does not go entirely far enough, but it is a step that we have been waiting not only decades, but in many cases centuries, to achieve, and I would not want anyone to diminish the importance of the fact that we have removed that immunity.
I now wish to make a little progress.
Will the right hon. Gentleman give way?
I have been very generous to Members, and I think that if I were to start on a second round of giving way, we would still be stuck here by the time the vote is cast. I think that I have now pointed out the differences.
We have continually considered carefully exactly how the exemptions in the Bill should be framed. We will want to make several refinements to the Bill in Committee, although I do not claim that they will be extensive. I will write to Opposition spokesmen and their colleagues to keep them informed of the refinements as soon as I can.
The Bill is limited, yet important. I do not claim that it will do everything that everyone wants—that is why I say that it is limited—but I do claim that it is important in several significant ways. I believe that it will meet a specific failing in our criminal law. It will enshrine in law a more effective offence of corporate manslaughter that will properly target corporate failures and, for the first time, it will remove Crown immunity. In short, the Bill will make justice possible for those who are killed at work owing to gross corporate negligence. It can never remedy those losses or compensate for the bereavement that individuals and families have suffered, but I hope that it will go some way towards meeting their claim that justice ought to be extended right across the spectrum when it is demanded as a result of corporate culpability. I thus commend the Bill to the House.
May I first declare a personal interest, over and above being a member of the Bar? Health and safety at work has been my specialist field of practice for some years, and as it remains the only area in which I really practise at the Bar, the Bill has a direct professional relevance to me.
I have no doubt at all that the Government’s intentions are commendable. From my experience of practising in the field, and especially of prosecuting for the Health and Safety Executive, which I did quite a lot before entering the House in the 1990s, I have no doubt about the gravity of several of the offences with which I dealt, and the poor reflection that those cases revealed of, especially, the operation of public companies and corporations and others. I am also aware of the anguish caused by death in any setting, and certainly by the unnecessary deaths caused by industrial accidents or by the activities of someone carrying out an undertaking. I echo the Home Secretary’s remarks about those who have campaigned to determine whether improvements to the law could be made.
I am also of the view that there is scope for change and improvement. As the Bill goes through Parliament, Conservative Members will certainly do what we can to co-operate with the Government to determine the aspects on which improvements can be made. I shall touch on one or two of those as I proceed with my remarks, and I look forward to considering the Bill in Committee, because we have the capacity to produce something of value.
The problem that the Government have faced with the Bill—I hope that I am not being too unkind to the Home Secretary when I say that it was reflected in the slight hesitancy of some of his remarks—is that, as so often happens, they are caught between a rock and a hard place. The Government wish to improve our body of legislation, which would be of value, but at the same time they have very properly not been prepared to be pushed or bulldozed by those who want the introduction of draconian legislation, especially in terms of penalties on individuals, that would go outside the scope of our normal principles of law.
I entirely agree with the Home Secretary that we must deal with corporate manslaughter. The only fair way in which to deal with manslaughter allegations against individuals, with custodial sentences being imposed if transgression is shown, is under the existing framework of the manslaughter law. If we were to start departing from that—some have suggested that we should—it would quickly become apparent that people would be treated unjustly. It should not be the role of Parliament to do that, however tempting it might sometimes be.
Having taken that decision and gone on to examine the problem of fixing corporations with allegations of manslaughter, which is inherent, and of which we know from the case of the Herald of Free Enterprise, which the Home Secretary and others cited, it seems that the Government have tried very hard to keep the notion of corporate manslaughter and produce a new framework that will enable corporations to be convicted. However, they face the problem of having ended up with a Bill about which it is at least legitimate to raise the question: what does it add to our existing laws in practical terms? I shall concentrate especially on that point, but before I do so I want to consider several of the Bill’s details and flag up for the Home Secretary some areas at which we will need to look carefully.
The Home Secretary made it clear that the Bill is aimed at corporations. That makes it different from the Health and Safety at Work, etc. Act 1974, which is a much wider measure under which it is quite common to prosecute unincorporated associations without difficulty. Indeed, shortly before I became a Member of the House, I was involved in the prosecution of an unincorporated association: Lloyd’s Register of Shipping. Having seen not only the seriousness of that case, which was about the port Ramsgate walkway collapse in which seven people were killed, but the size of Lloyd’s Register of Shipping and the importance of its role in certifying new engineering structures concerned with the marine environment, I rather disagreed with the Home Secretary when it was suggested that unincorporated associations might not be an important element in ensuring health and safety at work. Of course, I also accept that in many cases unincorporated associations are likely to be small organisations, but if ever the Home Secretary wanted an example of an unincorporated organisation that is not small, there is one. I am bound to say that I am a bit worried about the prospect of putting on the statute book legislation that cannot encompass such an organisation, so I hope that we will be able to consider that during the Bill’s passage.
The Home Secretary properly identified the fact that the Bill includes important innovations. The removal of Crown immunity from Government Departments is welcome and a much-needed change. However, I was a little worried to note that the relevant schedule could be added to or taken away from by way of the negative procedure. That was not because I thought that the Home Secretary was suddenly going to say that he wanted to remove bodies from the list—although that would always be possible—but because if we are going to get the Bill right, we must decide at the outset who we are aiming it at. I thus have serious reservations about using the negative procedure to change the list. We need to use the affirmative procedure.
We have touched on the whole issue of public authorities. The Home Secretary was quite right when he said that I might be wrong about the NHS health trust in the context in which I put my point to him. Having read the Bill, I am just not sure. If someone were put on a health trust trolley that collapsed and caused the person to suffer a serious injury, I have little doubt that the health trust could be responsible. If a patient falls down a staircase or is injured in a lift, it is clear that, as an occupier of premises, the trust will be covered by the legislation. However, the position is rather less clear to me when it comes to, for example, the training of medical staff. In a case in which I had a peripheral involvement, some junior hospital doctors were prosecuted for manslaughter for killing a patient. They were very junior and their circumstances were such that there might be some degree of public sympathy for them, but serious criticism was made of the health trust for the manner in which it had looked after the doctors and provided them with supervision and training.
At present, that matter is certainly covered by the Health and Safety at Work, etc. Act, but would it be covered by the Bill? I do not know. The Home Secretary might be able to intervene and tell me straight away that I am worrying about nothing, but it seems to me that that case reveals the grey area between direct activities, such as running premises, and public policy issues, such as whether enough money was spent on the doctors’ training. We shall have to focus and concentrate on that matter.
Now that the hon. Gentleman has finished that section on the health service, may I take him back to the question of amendments to schedule 1 and the procedure for making them? He and I clearly read clause 19 differently. The negative procedure is used in relation to amendments that fall within subsection (3)— for example, if the Department changes its name, as the Office of the Deputy Prime Minister did. Otherwise, the affirmative procedure applies under subsection (2). If my reading of the clause is correct—of course, it is subject to correction—the hon. Gentleman’s fears are groundless.
The hon. Gentleman may well be right. We can consider the matter in Committee, and if that phrasing is considered to be reassurance enough, I shall be wholly content. I read subsequent paragraphs of clause 19(3) as putting a gloss on that, but perhaps I am becoming too cynical. I am grateful to have my faith in human nature restored by the hon. Gentleman.
In Committee, my hon. Friend may want to give further consideration to his point about whether a failure to spend enough money would be covered by the Bill. I think that the Home Secretary, to whom we are grateful for presenting the Bill himself, would say that not spending enough money is not in itself sufficient, and that gross negligence is needed.
The context of the debate is the heart-rending events that have affected members of the public, or people who have been passengers, or employees of organisations, but we ought to recognise that, because of our tripartite approach over the decades and the Health and Safety at Work, etc. Act, this country has a lower level of death and injury at work than most other countries, and we are trying to improve our record. We are not the worst.
I agree entirely. I was going to make that point when discussing the current operation of the Health and Safety at Work, etc. Act. My hon. Friend is correct: our record on industrial accidents is not bad at all. Indeed, the pattern of deaths and injuries in the workplace shows a consistent diminution, which is greatly to the credit of the activities of the Health and Safety Executive.
I hesitate to intervene in a disquisition between three such learned and honourable Gentlemen. If I am wrong I shall write to the hon. Member for Beaconsfield (Mr. Grieve), but my understanding is that in the case he mentioned, the health trust would be covered as a trust. It would not be outwith the scope of the Bill; it would be covered as an incorporated body. As for the scope of its actions that would be covered by the Bill, budgetary allocations would be excluded, but the nature of the training would be included. If it could be shown that there was gross negligence in the doctors’ training, the trust would have a corporate responsibility.
I am grateful to the Home Secretary; that is indeed reassuring. I raised the question because it troubled me when I read the Bill, and because it illustrates the fact that the Bill deals with a complex area of law. Having been picked up by the hon. Member for Wolverhampton, South-West (Rob Marris), I would be the last to pretend that one reading of the Bill has enabled me to become a master of every aspect of its detail.
I have touched on the issue of the activities of the police. Some people will be puzzled about the extent to which the police will or will not be subject to the operation of the legislation. We will have to examine that matter further.
The real nub of what the Government have attempted to do lies specifically in trying to maintain in the Bill the principle that this is corporate manslaughter. In its original proposals, the Law Commission suggested that the duty of care test on which the entire edifice will rest was a mistake. It took the view that that was a civil concept, which translated only with difficulty into the field of criminal justice.
On reading the Bill—no doubt I shall reread it and re-reread it—I was mystified to see how the Government were adding extra complexity, which does not exist in relation to common-law manslaughter, by providing a split role of judge and jury in which the judge makes, in effect, a civil ruling on whether the duty of care existed, and only after that does the jury make the decision on whether a breach has occurred. One of the points on which we shall require clarification—perhaps in the winding-up speeches, but certainly in Committee—is how, procedurally, that will work in court. Is it to be a matter of the judge hearing all the evidence and then, prior to final submissions, making a ruling, or is the ruling to be made at half-time? Is the ruling to be appealable before the end of the trial, or is an appeal on whether there was a duty of care to take place only after the trial has reached a conclusion? I apologise to the House for becoming legally “techy”, but whether the legislation will work hinges on whether we get the technical aspects right. I hope that we will hear some indication that the Government have given the matter some thought.
Given that in ordinary common-law manslaughter cases juries have routinely been asked to consider issues of duty of care, as they have in respect of one person’s responsibility toward another, I am a little surprised that consideration of that matter is now to be removed from the jury. Why are juries suddenly no longer to decide that question? My experience is that their common sense has usually ensured that such decisions are not difficult for them. I raise that question in the hope that we might have some answers.
May I ask my hon. Friend to bring his experience to bear on a matter that strikes me as relevant? I am thinking of cases in which there is a charge of corporate manslaughter against a corporate body and, in respect of the same events, a charge against an individual of ordinary manslaughter—if I can put it that way—through gross negligence, and perhaps offences relating to health and safety legislation? Does he see in the Bill’s provisions any obstacles to all those matters being tried within the same trial, to enhance the administration of justice and save costs?
My hon. Friend makes an important point. I doubt that it is possible to try all those charges together in one trial. In fact, I believe that one of the consequences of the Bill—I am jumping my own train of thought at this point—will be incredibly long and complex post-accident periods before final resolution of cases. I know that happens now: in some cases in which I have been involved it has been suggested that a charge of corporate manslaughter or manslaughter might be brought against an individual, the consequence of which has been to delay the health and safety prosecution by two, three or four years. That cannot be right for the relatives of the deceased, it leaves defendants in a state of uncertainty for prolonged periods—periods which one must be mindful of trying to minimise—and by the time the case comes to court, the public focus on the issue has almost completely gone.
I do not mean this at all disparagingly, but I think that one of the reasons why the Government decided to stick to the concept of corporate manslaughter was their desire for the very words to heap opprobrium on corporations that are convicted.
Long delay between the incident and conviction is clearly undesirable, yet the evidence from health and safety at work cases is that the delays, even without the addition of corporate manslaughter, are already very long. I hardly ever have a case that is not 12 or 18 months old by the time that it gets to court, and those are cases concerning routine deaths—if hon. Members will excuse the expression—without any technical complexity at all. Major trials with which I was involved in the 1990s took three, four or five years to reach court. I would very much like to reduce that period, but I fear that the consequence of the legislation will be to add to it. If there is anything that we can sensibly do to minimise that, we should consider it.
Earlier, I mentioned remedial orders. After I made a remark that attracted a certain amount of controversy, the hon. Member for Barnsley, West and Penistone (Mr. Clapham) said that he thought that remedial orders would go further than existing measures. I do not think that that is the case, because the Health and Safety at Work, etc. Act 1974 provides not only for prohibition notices but for improvement notices. May I remind hon. Members of the scope of improvement notices under section 21? It states:
“If an inspector is of the opinion that a person…is contravening one or more of the relevant statutory provisions; or…has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated, he may serve on him a notice… requiring that person to remedy the contravention”.
Unless the Home Secretary can show me that the Bill will bite on organisations that are immune under the Act—I do not think that it will, but I am always prepared to stand corrected—I think that clause 10, although included, I am sure, with every good intention, is unnecessary and redundant. Remedial orders can be highly technical, and many a trial judge might be rather unwilling to get involved with them, but at the conclusion of the trial, long before the judge could make any pronouncement on remedial orders, I would expect the Health and Safety Executive, which is not fettered by any prosecution, to intervene with the prohibition and improvement notices needed.
I wish to raise two issues. First, Crown immunity still applies under the Health and Safety at Work, etc. Act, although it does not do so under the Bill; I think that it should not apply under the 1974 Act, but it does. Secondly, when the Health and Safety Executive issues an improvement or prohibition notice, it does not do so with any transparency. The decision is made by the agency behind doors. However, under the Bill the order will be made after a full trial in court, with all the evidence set out for the public to see. The decision will be made publicly by a High Court judge, who may, I suspect, sometimes be rather more robust than the Health and Safety Executive.
I am not sure that I agree. There are two points to make. First, if an improvement or prohibition notice is contested, there is a hearing in front of an employment tribunal, which takes place in public. Secondly, in the majority of cases in which I have been involved, on sentencing it has been made perfectly clear in court that improvement and prohibition notices had been served—indeed, they often form part of the evidence in the case—and the public will have been made fully aware of the nature of the prohibition and improvement notices. Again, that is a matter that we can consider. It struck me when I first read the Bill that—with the caveat that the hon. Gentleman properly picked up on—if organisations covered by the Bill are not covered by the 1974 Act, remedial orders against a Government Department might have some relevance. We should be careful not to over-egg the pudding in that respect; otherwise, we give the public the impression that something highly novel is being introduced when it has been in place for a considerable time.
I apologise to my hon. Friend if he is about to come on to this subject, but he will note that, under the Bill, if a remedial order were breached, penalties would be imposed. How does he think that a remedial order can be monitored, to determine whether or not it is being complied with? Obviously, it is easy for certain other penalties relating to criminal matters to be monitored to ascertain whether they are being complied with, but monitoring a remedial order probably requires a greater degree of technical expertise.
My hon. Friend makes an extremely good point, which ties in with the respective roles of the Health and Safety Executive, the Crown Prosecution Service and the police which, to my mind, remain somewhat opaque. That will be of key importance if the legislation is to have any force at all. A protocol governing the investigation of death is currently in force between the HSE, the CPS and the police, as even today there are occasions when the police and the CPS become involved because they believe that manslaughter proceedings may follow. May I tell the Home Secretary—this follows on from my earlier comment about length of time—that those are complicating features in the investigation of offences? I can only speak from my experience, but I say categorically that the moment that the police become involved in the investigation of a health and safety offence, the case takes considerable time, and in many instances I was left with the distinct impression that the required expertise is simply not available.
I do not know how we will work our way around that. I note that in the submissions made to the Joint Committee, the Health and Safety Executive made it abundantly clear that it did not wish to become involved directly in bringing corporate manslaughter prosecutions, because it took the view that, given the complex construct that had been put together, it would not have the relevant expertise, and involvement would in fact inhibit its other work. That is the inference that I derived from its submissions. In those circumstances, how will the process be managed?
To move on to the point made by my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright), at the end of the process who will monitor the remedial order? I assume that it will be the Health and Safety Executive, because I cannot imagine anyone else being in a position to do so. We have, in the Health and Safety Executive, a reservoir of outstandingly good expertise, as I know from direct personal experience. It ranges across every area of industrial work and activity, whether the circumstances relate to the nuclear inspectorate, the rail inspectorate or, indeed, to more general concerns.
It is worth bearing in mind, too, that many prosecutions brought under the 1974 Act are brought by local authorities, but they have great difficulty finding the expertise to bring those prosecutions. If a remedial order is imposed by a court, and it falls outside the Health and Safety Executive’s responsibility because it applies to a warehouse—the operation of a warehouse does not fall within the Health and Safety Executive’s remit—it is a case for a local authority. Some warehouses have thousands of square feet of storage, and adopt complex methods of operation. Who will supervise the remedial notice in those circumstances?
I am grateful to the hon. Gentleman for his generosity in giving way. I cannot remember, but my recollection is that most offences under the 1974 Act relating to prohibition orders are subject to a fine, which is on a scale. However, it appears from clause 10(4) that failure to comply with a remedial order could be subject to an unlimited fine. If I am right about that difference, it suggests that there is a difference between a remedial order and a prohibition order, in terms of the fine that can be levied for breach thereof. That would be a more powerful incentive for the employer.
Yes, but the other way of looking at it is that under the 1974 Act someone who does not comply with an improvement notice will face the end of their business, full stop—they will no longer be allowed to operate. In all enforcement proceedings in the public sphere, history has shown that it is usually the threat of an injunction, whichever form it takes—in the civil courts or through a magistrates court—that ultimately brings about compliance, because such an injunction means that people can no longer earn their livelihoods and are put out of business, which they richly deserve if they do not comply with such orders.
I have to say that I am not persuaded by these measures. I do not, with the single caveat about remedial orders applying to Government Departments, whereas improvement notices do not, see their advantage. It is worth pointing out that the Health and Safety Executive already issues improvement notices through the Crown procedure against Crown bodies and the use of Crown notices and censures—for example, 14 in 2003-04, 11 in 2000-01, and six in 2004-05. It also occasionally issues prohibition notices against Government Departments. That must have worked all right, otherwise we would have heard about it in this House. I would rather hope that the Government were complying with a procedure that they themselves had set up. To that extent, returning to the comments of the hon. Member for Hendon (Mr. Dismore), remedial orders may add very little to what is available in this setting.
I want to return to the 1974 Act. I am conscious that the Government have already reached a decision in this respect—they have decided that they want the offence of corporate manslaughter—and I suppose that my hon. Friends and I will do our best to help them now that they have done so. However, my own instincts, including a desire to see rigorous application of health and safety in all spheres, make me wonder whether we have not made a mistake. In the 1974 Act, Lord Robens did this country a signal good service. It is a very well crafted piece of legislation. I have never heard it criticised except sometimes in relation to subsidiary regulations accused of being too onerous. The nub of the legislation itself has stood the test of time extremely well. The thing that it does, which the Bill does not do, is to simplify the law in terms of the duties of care owed by employers to their own employees and to those who might be affected by their undertakings in such a way that over the 30-year period of its operation there has been a series of important judgments whereby every weasel argument that employers can put forward to try to justify getting themselves off the hook—for example, passing the buck to subcontractors—has been completely and utterly eliminated.
The 1974 Act is one of the most powerful and effective regulatory tools put on to the statute book by Government. Far from being limp in its impact, we can see that in recent years the fines imposed for serious accidents and death—unlimited in the Crown court—have risen stratospherically. The Home Secretary spoke of £7.5 million in relation to the Hatfield rail crash, but even for accidents that may not result from quite such a major disaster, large fines against corporations—hundreds of thousands of pounds for single deaths or even sometimes for the creation of risk—are routine. There is every sign that that trend is continuing upwards as a result of societal pressure to mark disapproval of those whose safety systems are inadequate.
In 2004, when there were just over 200 fatalities in industry—this past year, the figure is similar at 212—fines were just £43,000. The average fine was just over £3,000. I agree with the hon. Gentleman that the instrument of the 1974 Act has helped to get to grips with problems in the workplace. Nevertheless, the fines that are imposed under that Act are so small that they do not deter employers at all. I should like the Home Secretary to bear that in mind.
I am not certain that I agree. The difficulty is that if a large corporation such as a Tesco or a Sainsbury’s kills an employee, a fine of millions of pounds may make little dent on its balance sheet. One of the problems that we have to face up to is that many of those prosecuted under the 1974 Act are individuals with very limited means. If a fine of £2 million is imposed because it marks the gravity of the offence, it will never be collected because there is nowhere near that amount to be collected. It is true that the company, in the case of a corporation, will be put out of business—indeed, there is authority in the Court of Appeal that says that in some cases that may be a very good thing to do—but unless that is the intention, the size of the fine becomes rather meaningless.
Let me say to the Home Secretary, because it is important that the public should understand this, that I am very doubtful that, having introduced the new concept of corporate manslaughter, the fines imposed will be very different. I can see that in the case of major corporations it may be possible to impose a much higher fine and to say, “We are moving into the £20 million or £30 million range because as you are a multi-billion pound corporation we want to hurt you in your pocket.” I, for one, have no difficulty with that. In many cases, however, as I am sure that the Home Secretary has been told, the companies prosecuted will be cowboy operators, individuals with very limited resources and companies whose only assets are, in effect, their annual turnover and profit. In those circumstances, courts will not impose multi-million pound fines, because they will be shown—as they are under the terms of the 1974 Act—balance sheets and the accounts of the company, and if they decide not to put it out of business, they will have to impose a fine that is commensurate with its ability to pay it. As has often been argued, in the case of public authorities the money that is levied as a fine takes from them the very money to carry out the necessary improvements to meet the standard that they should have delivered from the start.
I have a question mark in my mind as to whether in reality we will find ourselves moving into a different fine regime. The danger is that we will end up with people who, having had their expectations raised, find themselves left with a feeling of distress and disappointment that the horror of what has happened to a near relative has not been responded to. I see no easy way out of that and therefore wonder whether we are not, in enacting this legislation, making unnecessary difficulties for ourselves. I endorse the point made before the Joint Committee—that we should have, under sections 2 and 3 of the 1974 Act, a separate aggravated offence of an act by which death results. There would then be some sentencing guidelines emphasising that much higher fines should be imposed in those circumstances, and we could see whether that works.
However well-intentioned the Bill, the fact remains that conviction rates in prosecutions under the 1974 Act are some of the highest in any field of criminal justice—consistently more than 80 per cent. and in some cases closer to 90 per cent. in any 12-month period. That is because it is so drafted and interpreted that it imposes an arm-twist on any defendant from which they will have great difficulty in escaping. It worries me that, in contrast, this Bill seems very complicated. Having declared my interest at the outset, I cannot help wondering whether we are about to create another lawyers’ bonanza.
There is a risk, given the complexity of the issues of duty and care and breach—and the fact that corporations might be more reluctant to plead guilty because of the opprobrium attached to a manslaughter conviction—that we might end up with far more contested cases. Under health and safety at work legislation, a contested case relating to a major disaster can last for many weeks and cost a lot of money. It is true that that money can usually be recouped from the defendant, unlike in most criminal justice cases; even so, we ought to bear in mind such factors.
Having said that, I am mindful that the Home Secretary has probably made up his mind on that point, but I shall nevertheless seek to explore it in Committee. At the end of the day, we should be concerned not about the words but about the results. Our aim should be to enact legislation that changes the attitudes of those who might be negligent, hits them selectively and properly in their pockets to encourage them to act with care, and produces a better sense of public justice. However, those three aims need to be kept in the balance, and the test of the Bill’s success will not be what we say in the House, but whether it achieves those results.
Order. Many Members wish to contribute to the debate, so I must ask them to exercise self-discipline and to make their remarks brief so that more Members may make a speech. I am thinking in particular of Back Benchers.
Before I came to the House, I was a personal injury lawyer. Indeed, I suppose that I still am, although I no longer take any cases. I refer hon. Members to my entry in the Register of Members’ Interests.
As a personal injury lawyer, I represented many families bereaved by avoidable accidents, including major incidents such as Zeebrugge and the King’s Cross fire. Most of the cases, however, involved the deaths of individuals such as motorists, employees and pedestrians, which went unremarked in the press. But the feeling of loss and sense of injustice suffered by the victims’ families were the same as the feeling of loss and sense of injustice suffered by those bereaved by the major incidents.
Three days after the terrible tragedy at King’s Cross, my investigations on behalf of the bereaved and injured led me to inspect what was left of the tube station. Nothing that I had previously experienced could have prepared me for the sights and smells of the fire’s devastation that I encountered there. As I took statements from victims, distraught relatives, firefighters and tube staff, and as I sat through the public inquiry day after day, hearing over and again about the failures of the management of London Underground Ltd, it struck me as outrageous that neither the company nor any of its managers would face criminal proceedings over those 31 unnecessary deaths.
That was because of the inadequacies of the criminal law, and since then I have been campaigning to rectify those inadequacies. The Bill intends to correct them, 20 years after the horrors of Zeebrugge and King’s Cross, 10 years after the royal commission’s recommendations for change, and six years after my own private Member’s Bill. While I naturally prefer the wording of my own Bill, which was simple and effective, I believe that, despite containing shortcomings on which we shall have to focus, this Bill makes some progress towards achieving our aims.
I have long believed that we need a new law based on three principles. First, when the conduct of a company’s management falling far below what can reasonably be expected is the cause—or one of the causes—of a person’s death, that company must answer to the criminal courts. Secondly, if the company is convicted, the court should not only be able to punish it severely, but have the power to order it to put right the failings that caused the death. Thirdly, and perhaps most important, there is a need to impose on the senior management of a company an overarching responsibility for the health and safety of its work force and, equally important, of the general public.
The Joint Committee on Human Rights, which I chair, reported on the Bill today. There is a clear obligation under article 2 of the European convention on human rights to secure the right to life by putting in place effective criminal provisions to deter the commission of offences against the person, backed by appropriate law enforcement. In certain circumstances, this obligation requires the state to ensure that recourse to the criminal law is possible against both private and public bodies in serious cases of unintentional deaths.
In the Committee’s view, there is a clear obligation under article 2 to introduce an offence of corporate manslaughter that would enable recourse to the criminal law against both private and public bodies in circumstances in which that is not possible under the present law, where such recourse would be required under article 2. The Committee therefore welcomes the objective of the Bill as a human rights-enhancing purpose. For me, however, the acid test will be whether it will be easier to prosecute. Thinking back to the disasters of the 1980s and subsequently, would prosecutions that failed at the time—or that were never even brought—have succeeded if these provisions had been available?
I am worried that the original, broader, definition—used, for example, in the 2000 consultation—that referred to “undertakings” has been removed so as to exclude unincorporated associations. It is suggested that small businesses in this category—against which prosecutions have succeeded under the existing law, which is being abolished by the Bill—would see cases brought against a named trader alone, and that large partnerships such as accountants and lawyers are low risks. The hon. Member for Beaconsfield (Mr. Grieve) gave a good example in relation to Lloyd’s. But what of architects, for example—who often practise in partnerships—who design a building that collapses, or is gutted by fire, due to grossly negligent design? Schools, clubs and even trade unions are outside the current scope of the Bill.
The Joint Committee on Human Rights considered whether these various restrictions on the scope of the new offence were incompatible with the right not to be discriminated against in the enjoyment of convention rights under article 14 of the European convention, in conjunction with the right to life in article 2. In my Committee’s view, article 14 is engaged because the various restrictions, exclusions and exemptions give rise to differential treatment of individuals in analogous situations in relation to their access to the criminal law in respect of negligently caused death.
The Committee noted that, in the 2000 consultation paper, the Government accepted that to restrict the scope of the offence by excluding unincorporated bodies
“could lead to an inconsistency of approach and these distinctions might appear arbitrary.”
To avoid that risk of arbitrariness, the Government at that stage proposed that the new offence should apply to “undertakings”, which would include unincorporated as well as incorporated bodies. In the case law of the European Court of Human Rights, the public nature of a body’s function has not been regarded as a reason for excluding criminal liability, but on the contrary has been treated as a factor which strengthens the obligation to ensure that recourse to the criminal law is available. The obvious answer is to revert to the original proposal to apply the new offence to “undertakings”.
I very much welcome the extension of the Bill to apply to the Crown, as does the Human Rights Committee. However, my Committee considers that the restrictions, exemptions and exclusions in the Bill will preclude the possibility of prosecution for corporate manslaughter in precisely those contexts in which the positive obligation in article 2 is at its strongest, and in which a criminal prosecution should be brought: the use of lethal force by the police or army; deaths in custody; and deaths of vulnerable children who should be in care—to name just a few examples. This would mean that, in situations in which responsibility for the death lay with a management failure in a public body, rather than with any identifiable individual, recourse to the criminal law would not be possible.
In a sufficiently serious case, that would be likely to lead to the United Kingdom being found to be in breach of its positive obligation under article 2 to put in place an effective system of judicial remedies, including, in certain circumstances, recourse to the criminal law. In particular, this would apply to deaths in custody. It is not enough to say that there are extensive provisions to investigate these deaths already. So there are, too, for transport accidents, chemical plant explosions or the humble factory death. Individual prosecutions are not the answer either. There is no logical reason to exclude institutional operational failures, which may lead to a death in custody, from the provisions of the Bill.
In our report, the Committee gives an example to demonstrate this point. The Metropolitan Police Commissioner is currently being prosecuted under the Health and Safety at Work, etc. Act 1974 in respect of the shooting of Jean Charles de Menezes. If the Bill becomes law unamended, and if, hypothetically, there were clear evidence that a similar shooting was the result of gross negligence on the part of the senior management of the Metropolitan police, but was not attributable to one individual officer who could be described as the controlling mind of the organisation, it would not be possible for the Metropolitan police as a public authority to be prosecuted in respect of the death. It would still only be possible to bring proceedings against the Metropolitan police as a public authority under health and safety legislation, as now, for a much less serious offence. In such circumstances, there would be a strong likelihood that the United Kingdom would be found to be in breach of the positive obligation in article 2, because the criminal offences charged did not reflect the seriousness of the conduct which led to the death, and the judicial system in place was not adequate to secure the full accountability of state authorities for their role in the death.
Have my hon. Friend and his Committee had an opportunity to consider the Bill’s impact on the armed forces, in relation to which there is a series of wide-ranging exclusions? As I am sure he is aware, there have been several deaths in Army barracks in peacetime which have not been properly investigated by the police. Coroners’ courts have recorded open verdicts and expressed concern over the operation of the Army in the matter.
My hon. Friend is absolutely right, and the report touched on the issue. It is interesting to note that, while training is included, operational activities are not. That applies particularly to the emergency services. When I was in practice, I used to act on behalf of the Fire Brigades Union. A number of deaths were caused by serious management failures on the part of the fire service. As currently configured, the Bill would not include such management failure either.
I am concerned about the breadth of the general exclusion for public functions in relation to statutory inspections. Such inspections constitute a public safeguard against death and injury. Quis custodiet ipsos custodes? That requires clarification in the Bill. As I have said, I am pleased that the Government have provided some clarification in regard to emergency services, but it does not go far enough.
In relation to management failure, I believe that the Government have created a significant loophole by tying the offence to the actions of senior managers. While the comments of Mr. Justice Sheen in the Zeebrugge ferry disaster inquiry castigated the management throughout—which might just have meant a successful prosecution under the Bill—I am not sure whether the test would have worked at King’s Cross, for example, where the failures were further down the food chain, but institutional in the organisation of London Underground.
I believe that, in having to focus on the behaviour of senior managers, prosecutors will face disadvantages similar to those that they face under existing law, looking for individuals’ failures—albeit possibly aggregated—rather than corporate responsibility as a whole. The test would exclude prosecutions in cases in which death occurred in a discrete part of a business, geographically or sectorally. What of a large building site, one of many owned by a large developer, run by a major construction contractor? The person in charge of the site has a large say in how it is run, but may be a very small fish in a large multinational operation’s pond which sets the parameters within which he works, especially through finance and the deadlines required by the contract. The Government have indicated that the test will be reconsidered, but I believe that under the Bill as currently drafted, inadequate management practices and systems will escape—especially in large companies—exactly as they do under the existing laws.
The proposed remedial order power is very welcome, but I believe that it would be better backed up by a contempt of court power, like any other order of the courts. That would overcome the argument over whether the sanction for not complying with a remedial order was correct. But I think that we need to consider more imaginative penalties, too. As has been said, the sanction available is the same as exists under health and safety law. It is difficult to imagine that fines—currently multimillion-pound fines, in some cases—will be much higher, so it must be asked whether the Bill adds value to the existing position. I believe that the Government are right to say that they will consider more innovative sanctions in the light of the wider review of penalties for regulatory offences.
The Government have suggested that existing legislation allows the disqualification of directors if they have been convicted on indictment, but that response overlooks the fact that they cannot be so convicted, as there is no individual liability under the Bill. The opportunity must be taken to introduce a wider, more innovative range of penalties that are likely to provide a better deterrent to poor health and safety practices, and to deliver justice more effectively to bereaved families.
Does the hon. Gentleman agree that another possible consequence of the Bill is that it will depress fines imposed for deaths that are only prosecuted under the Health and Safety at Work, etc. Act? Might that not be an unintended consequence of the new framework?
The hon. Gentleman makes an important point. He also made an important point about the possibility that one prosecution would fail where another might succeed. Ultimately, however, the decision must be for the Crown Prosecution Service and the Director of Public Prosecutions, who must authorise prosecutions.
What is important is for us to look at a wider range of alternatives. A series of suggestions have been made. One is corporate probation, a supervision order imposed by the court on a company that has committed a criminal offence. A court can require a company, its officers or its directors to alter their conduct in a particular way. Those penalties have been used very successfully in, for example, the United States and Canada. Another option is the use of equity fines. They would reduce the value of shares in the company, clearly bringing home to shareholders—the owners of the company—the implications and effect of the criminal offence that their company had committed.
I think that the Bill’s main shortcoming is the lack of individual liability. In my view, that is one of the essential requirements of a successful reform of the law such as I proposed in my Bill. Since 2003, the Government have ruled out individual directors’ liability in criminal law, which I consider to be a tragic mistake. The strongest incentive for an individual director would be that he could stand in place of his company in the dock as a result of its failings, leading to the deaths of employees or members of the public. If company directors can face individual liability for offences committed by their companies under the Companies Act 1989, or frauds committed by their companies, it is so much more right that they should face prosecution if those companies kill.
Without that, the only option is prosecution for regulatory offences. However—this picks up a point raised by the hon. Member for Hertsmere (Mr. Clappison)—there is a strong argument that it is an abuse of process to charge a company with two offences, corporate manslaughter and breach of the Health and Safety at Work, etc. Act, arising from the same circumstances. But without a conviction under the Act, there can be no individual liability of directors or managers under section 37. We could end up with corporate manslaughter charges actually reducing the individual liability of directors in the most serious cases.
Given that clause 17 also excludes secondary offences, I believe that one of the main requirements of reform has been rejected. After all, the purpose of the Bill must be to act as a deterrent, which, without individual liability, it is far less likely to do.
Let me end with a short comment on jurisdiction. Much has been written about it, especially when the failures have been in England and Wales but the deaths have occurred in either Scotland or Northern Ireland. However, I am anxious that we should not rule out possible prosecutions when a death could be further afield.
It is well established that inquests can be held into deaths abroad—indeed, they may be required under human rights obligations. What if an inquest reveals facts that show that serious management failure in England led to a death overseas, but, owing to the Bill’s limited jurisdiction, those responsible cannot be prosecuted? Of course, ships and planes may be under our jurisdiction, but what of the package tourist killed on a far eastern holiday as a result of the substandard construction of his hotel, which the British-based tour company knew about and ignored, or killed by bandits or terrorists when the tour company had clear warnings but turned a blind eye in the interests of profit? I believe that we would face immediate calls for further change in the law, as has happened in relation to compensation for victims of crime abroad as a result of recent terrorist attacks.
Having said all that, I believe that the Government are to be congratulated on the way in which they have engaged with so many organisations in considering suggestions for improvement. However, given the Bill’s current drafting, I also believe that the answer to my original proposition “Will it be easier to prosecute companies that kill?” is a resounding “No”. While some obstacles have been overcome, other more serious obstacles have been created. I have highlighted just some of the shortcomings which I believe must be addressed in Committee, so that we can all welcome the Bill as a major improvement in health and safety in the workplace, in our transport system and in our public services, ensuring that our manifesto commitment for three elections is met in full.
Home Office Ministers will be pleased to know that, unlike the hon. Members for Beaconsfield (Mr. Grieve) and for Hendon (Mr. Dismore), I am neither a specialist in health and safety law nor a personal injury lawyer. However, like them, I am prepared to give the Bill a guarded welcome.
Introducing the legislation, the Home Secretary rightly drew attention to the need for it. Too many families look on the disasters that we have seen in this country over the past 20 years, and are suffering still. They feel that an injustice has occurred, in that the corporations and individuals who were responsible have not faced prosecution or fines as they believe they should have, primarily because of the difficulty of securing convictions under the existing law. What was known as the identification principle—the need to find individual responsibility before one could take the corporation to court—has been the main barrier to successful prosecutions and the Bill is supposed to put that right. To the extent that it goes some way to doing that, despite the criticisms that we have heard today, it is to be welcomed.
We need legislation that can give the justice that the families and wider society require and that ensures that there is a deterrent for the managers of corporations to make sure that they treat health and safety with the seriousness that it needs. There should be no leniency for those responsible for deaths in the work place or as a result of organisational activity.
One is left rather surprised that the Home Secretary did not give more of an apology in his opening remarks. The Bill has been long promised and long delayed. I have counted the number of promises that Ministers have made on the record since Labour came to power in 1997. There have been 12 over those years, beginning at the 1997 Labour party conference, when the right hon. Member for Blackburn (Mr. Straw) promised to introduce an offence of corporate killing. Nothing happened.
We had to wait until 2000, when a Home Office consultation paper promised action. Nothing happened. In the Queen’s Speech at the end of 2000, we were promised a Bill. Nothing happened. We were told in Labour’s 2001 manifesto that there would be action. Nothing happened. We were told that a draft Bill would be published in May 2003. Nothing happened.
I could go on with the list of promises. We were promised a Bill in the 2004 Session. A Bill was published, but did not go through in that Session. We are now the other side of the last election and we have had to wait a year between the publication of the Bill and the debate on the Floor of the House.
There have been a lot of delays, during which there has been a lot of watering-down of some of the promises made to the electorate in three manifestos. It is the duty of this House to ask serious questions about why the Government have U-turned on a number of issues and why the legislation, while welcome, still does not have the teeth it needs. There seems to have been an awful lot of lobbying from Whitehall and corporate interests to water down some of the proposals. I hope that, as the Bill goes through the House, we can put some teeth back into it.
It is right that we pay tribute to the Law Commission, to some of the officials, particularly those who worked on the earlier consultations, and to the Select Committees on Home Affairs and on Work and Pensions, which made real criticisms in their pre-legislative scrutiny of the Bill. My concern is that the Government responded to some harsh criticisms of the Bill by almost ignoring them.
The Home Secretary said that the Government had taken on board some of the criticisms. I see almost no sign of that and would be interested if the Minister could point to any areas of real significance where the Government have shifted from the draft Bill. Like the hon. Member for Beaconsfield (Mr. Grieve), I am concerned that public expectations that action is being taken are being raised but may well not be met in practice. We have a number of concerns and I want to focus on five.
I may not have time to answer the hon. Gentleman at the end of the debate, but the report made 57 recommendations. We rejected nine and accepted, or partially accepted, the remainder.
I may have been corrected immediately, but I guess that the Government have rejected the most serious and significant recommendations, while accepting a few drafting amendments.
Our first concern is with senior management failure. We heard from the Home Secretary that he may move on that issue but I wish to press that point, which is very significant. It is the issue that is supposed to move the legislation on. If we fail to deal with it, we are wasting our time tonight.
The issue of individual liability, referred to by the hon. Member for Hendon, is significant, not least because the Government have U-turned on the issue compared with the previous consultation. There is also the issue of Crown immunity. The Government are right to be proud that they are getting rid of Crown immunity in a number of areas, but many outside this place believe that the number of exemptions in the Bill is large and that they go extremely wide; they are not narrow, as Home Office Ministers sometimes would have us believe.
There is a real danger that a death caused by a public organisation will be put on a different level from a death caused by a private organisation. That seems to be completely wrong in principle and the Home Secretary used some weasel words to justify that discrimination. We should not accept them. If the Government are so keen on victims’ rights, those who are victims of gross negligence by a public organisation, and their families, should be able to seek justice against that organisation.
The fourth issue is the duty of care test, which is part of the core edifice on which the Bill is built. I am told that a number of examples showed corporate negligence at an appalling level where there was no duty of care. The duty of care test is relatively limited in the Bill and we are concerned that the test from civil law is somehow being planted into criminal law.
The fifth area on which I want to focus is sanctions. Others have mentioned the inadequacy of, and lack of imagination in, sanctions on corporate bodies, but what about public bodies? There is a real danger that fines imposed on a public body will simply result in extra allocations of resources to that public body to ensure that the public service that it provides is not hindered. We must think more imaginatively if we are to make sure that public organisations feel the heat of the guilty verdict.
My first set of remarks is on management failure. If the Government stick by their proposal or even change the wording of the Bill in a minor way, they will be storing up problems. The real problem is that the Government are giving an incentive to delegate health and safety issues outside the immediate realm of senior managers. According to surveys of businesses, that is already happening in anticipation of the Bill. Directors are passing down responsibility for health and safety matters to junior managers. They justify that by saying that every factory in the organisation is different, that a one-size-fits-all approach is not appropriate and that the local manager should decide the best way to deal with health and safety matters. It would be perverse if the measure were to reduce the importance of health and safety to corporations. That needs careful examination in Committee because we could end up with a far worse situation.
The hon. Member for Beaconsfield, in some detail, touched on the fact that the test for senior management failure could lead to extra complexity and add longevity to trials as one tries to decide whether there was a senior management failure or a failure of the wider organisation. I hope that, when we get the letter from the Home Secretary, we can have more detail and he will have moved significantly. If not, that will fatally undermine the Bill. We look forward to receiving the letter.
On individual liability, the Government could have approached the issue in a number of ways. The Home Secretary is right to say that it will still be possible to take an individual director to court on a charge of gross negligence. However, he started his remarks by saying how difficult that was, particularly in large organisations, so he was arguing against himself. Clause 17 deals with the idea of secondary liability, whereby if the corporation is found guilty of corporate manslaughter, the individual director
“cannot be guilty of aiding, abetting, counselling or procuring the commission of an offence”.
Striking that provision out of the Bill seems to us quite wrong. It could mean that while the corporate body is penalised, the court cannot deal with the senior level individual who was responsible. We hope that the Government will reflect on that point again in Committee. Justice must be seen to be done and there is a real danger that clause 17 will reduce the courts’ ability to find individuals guilty.
On Crown immunity, the Government’s movement is incredibly welcome. Although I would not use the Home Secretary’s term “historic”, the provisions represent an important move forward. We have seen too many examples in the past of Government Departments and agencies committing serious offences without being held to account for them. I worry that there are too many loopholes. The hon. Member for Hendon referred to loopholes in respect of offences under health and safety legislation. The Government said in their response to the Select Committee report that they would look at the issue again. They need to do so, because allowing such an exemption seems bizarre.
I am particularly worried by clause 4(4), which deals with the exclusion from Crown immunity of services that are “exclusively public function”. Some people believe, perhaps incorrectly, that the provision is so broad that it amounts to a catch-all phrase that would retain Crown immunity for a large number of organisations. We also want to test that argument out in Committee. Many believe that the provision will affect the custody of prisoners, either by the Prison Service or the police or in immigration detention centres. There is a danger of Crown immunity preventing prosecutions where deaths in custody have taken place. The Chairman of the Joint Committee on Human Rights—the hon. Member for Hendon—would probably confirm that his Committee was indeed worried about that point. Under the European convention on human rights, the authorities have a duty to protect prisoners and there is a danger of this exemption preventing the Government from meeting their obligations.
Do not those remarks underline the need for a robust and independent prisons inspector? The Government want to do away with that, but if we are going to retain the gobbledegook of clause 4(4), it strikes me that it is all the more necessary to resist the Government’s intentions on the abolition of the independent inspector of prisons.
The hon. and learned Gentleman is right, but what he said should not lead us to allow the provision to go through unamended. The Home Secretary tried to argue that public bodies were accountable in many other different ways. They might be accountable to the prisons inspectorate and, ultimately, to the electorate. However, there have been too many examples of public inquiries into deaths—as with the Victoria Climbié tragedy, for example—failing to result in anyone taking the wrap. We have also seen calls for public inquiries denied because of the extra costs involved. We therefore believe that the exemption really goes too far. There are also complications with respect to private prisons. As we understand it, such prisons are less accountable than was suggested by the mechanisms that the Home Secretary attempted to pray in aid for the exemption. That makes for an even stronger case for ensuring that Crown immunity does not apply in such cases.
I hope that the provisions on those exemptions can be amended. There is an important link with other points about the exemptions of different organisations being drawn too widely in the Bill. Some hon. Members have mentioned unincorporated organisations and partnerships, and I completely agree with what they said. It was mentioned earlier that the Government had argued that it was far too difficult to include unincorporated businesses into the legislation because they had no legal identity. Yet all those familiar with corporate law and the Companies Act 1985—my hon. Friend the Member for Cambridge (David Howarth), for example—know that such organisations can be taken to court and prosecuted.
I remain unsure, on the basis of what the hon. Gentleman says, whether the Liberal Democrats are supporting the Bill.
I made it clear in my opening remarks that we will support the Bill, for which we have waited many years. There is a real need to tighten the legislation in this sphere. We have already heard tonight that, as a result of parliamentary pressure, the Home Secretary is going to shift on one of the matters that I am most concerned about, so I hope that further parliamentary pressure—in tonight’s debate and in Committee—can get the Government to make further shifts. The hon. Gentleman should talk to his hon. Friends, many of whom share our concerns while wishing to support the Government in the Lobbies if there is a Division.
Surely all the criticisms are directed to further improving the Bill, so supporting Second Reading tonight will allow the House to make the improvements that have been outlined in the debate.
My hon. Friend is right.
Our fourth concern is with how the Bill is constructed, particularly with respect to the duty of care that corporations and organisations have to bestow on the victim before they can be accused of an offence. We believe that that unduly limits the new offence and that focusing on the civil law definition of duty of care rather than the law of negligence and criminal law amounts to a restriction. For example, one could imagine an organisation, especially if it is a public body, having a statutory duty under health and safety legislation, but no duty of care. Once again, that illustrates a problem with the approach. Surely every organisation owes a public duty not to kill a person by its gross negligence. It is a simple as that. Linking the issue only to duty of care tests under civil law does not go far enough.
Before my hon. Friend leaves this subject, I hope that he will return to the case of Regina v. Wacker, which he mentioned in an earlier intervention. It was a Court of Appeal case about the 58 deaths of illegal immigrants in the back of a lorry. In that case, the defendant said that there should be no liability in criminal law because there was no duty of care in civil law on the ground that all the parties were engaged in a common criminal enterprise. The Bill brings that defence back for corporations.
My hon. Friend is right and I was about to touch on that point. Because he has made it so well, there is no need for me to repeat it.
The final issue that I want to bring to the Minister’s attention is sanctions. The Home Secretary said, though he was not speaking very clearly, that the Government were reflecting on new sanctions for corporates and he mentioned a few of them. We know that there is a Home Office review, but I do not believe that it has yet been published. Perhaps the Minister will clarify the date of publication. A Whitehall review is taking place and it could be linked to the Bill to produce new types of sanctions on corporates, so it will be a real shame if it is not produced in time for the Bill’s passage. I am keen to hear the Minister’s guidance on that.
The hon. Gentleman mentions Professor Macrory and his review of the duties of directors, which is linked to several items of legislation, including the Companies Bill. We are not in control of when Professor Macrory delivers his recommendations but, when he does, we will be able to consider what he says about penalties and sanctions.
I hope that if Professor Macrory produces some proposals with which the Government agree, we will see a separate Bill to amend this Bill and other pieces of legislation to ensure that any new sanctions can be applied. Indeed, the Government may wish to leave it to Parliament to decide, as the Bill makes progress. Several proposals have been made. For example, the hon. Member for Hendon mentioned equity fines and the suggestion of corporate community service is also sensible. Disqualification has also been suggested, although for some reason the Government appear to want to rule that out in this Bill.
As I said earlier, it is a concern that, while the Government are getting rid of Crown immunity in several areas, they have not made any imaginative proposals for sanctions on public bodies, which do not feel any serious pain as a result of fines. The careers of individuals running those organisations might have a black mark set against them, but the organisation involved would doubtless simply put in an extra bid to the Treasury. I do not think that the victims and their families would be very impressed by that. The Government have not done any extra constructive thinking on that point.
I shall end with two minor points. The first concerns the Scottish question.
The Scottish question?
I am sure that the hon. Gentleman is aware of this point. Most people interested in the issue were of the view that the Scottish Executive would make its own proposals. That was the accepted view until relatively recently. An expert group was set up to consider the issue and make some proposals, which were, on the face of it, more radical and stronger than those in the Bill. Then the lawyers in Whitehall and Edinburgh got together and decided that it was a reserved matter. That was a late decision, given that it has taken nine years to get to this point.
The hon. Gentleman says that this issue was deemed a reserved matter. Did not the Liberal Democrats and others in the Scottish Parliament vote to Sewel this issue and make it a Westminster responsibility again, after it had been fully devolved all along?
It was the recommendation of the lawyers on both sides, and I hope that the hon. Gentleman is not suggesting that they would do something that was illegal. I hope that the Government will say why that decision was taken so late.
Scottish law has different penalties for such matters. As my right hon. Friend the Home Secretary clearly said—he spent some time on the issue—the expert group met and came to conclusions in its report in November. However, it wanted to move into the area of health and safety, which is clearly a reserved matter, not a devolved one. There is no confusion on the point.
As I understood it, the Minister’s point relates to criminal law, so I hope that he will be able to be clearer on the issue in Committee. Perhaps he could publish the legal advice.
The second concern is the limitation on private prosecutions. Under the Bill, one would have to obtain the permission of the Director of Public Prosecutions before one could take a private prosecution. I know that several business organisations prefer that, but it does require some explanation by the Government as it could limit access to justice in some of the serious offences.
I have been critical of elements of the Bill and rightly so, because many experts in the area share my concerns. However, we are at least making progress. It has taken a long time, but we want to ensure that the Bill receives a Second Reading tonight and that our proposals receive a fair hearing in Committee. I hope that the House will work at its best to strengthen the legislation.
Like the hon. Member for Kingston and Surbiton (Mr. Davey), I am not a lawyer, but I have to say that if he had not told me that he was not, I would not have known. He made a few valid points, some of which I agree with and some that I do not.
All my adult life, I have championed the cause of safety and health in the workplace. I was 23 years a miner, 14 of them as a union official and a workman’s inspector. Safety and health is an inspirational issue that has guided working class people in their trade unions and in their representation in Parliament for the best part of a century. I recognise the need for the Bill to be improved, but I welcome the fact that it will receive its Second Reading tonight.
The Government are fulfilling the promise that they made a few years ago. We would have preferred to have it sooner, but we should not forget the good work of my right hon. Friend the Deputy Prime Minister in 2000, after disasters on the railways such as Hatfield. He introduced culpable homicide legislation, and this is a further step on the way that we should welcome.
For a lad brought up in a mining community, the trauma of miners killed in pit disasters and gas explosions, and dying from mining diseases, was commonplace. As a young boy, I saw my father come home too many times from the pit to tell us that a workman had been killed. Sadly, mining communities knew how to respond in solidarity to the loss of one of their own, because it was all too common. Miners’ lives were a price that the coal owners thought was worth paying for the pittance in wages that miners got at the time.
On too many occasions as a mining union official, I had to go and tell a wife that her husband and father of her children would not be coming home. That personal experience influences everything that I have said and done in this place for 20 years. I know, in my heart of hearts, that had there been a law that told the director of the colliery where I worked that he could be held personally responsible for the loss of life, many of those mining disasters would have been averted and a lot of lives saved. So I do not make anything small of this important step. We will want to tweak and improve parts of the Bill, but it is an important step.
For those in other parties who are less enthusiastic in their support for the Bill, I shall end with a few words about the 1999 Larkhall gas explosion. On the evening of 22 December 1999, a mother and father and their two children went to bed, looking forward to Christmas. At 5.30 in the morning, their house was blown up in a gas explosion and their lives were extinguished. That family—Drew and Janette Findlay with their two children, Stacey, 13 years old and Daryl, 11 years old—was lost. The Home Secretary mentioned Transco, the corporation that was held responsible for the explosion.
Nothing that I had experienced prepared me for the trauma of that perplexing tragedy. It was not a workplace accident; it happened in the sanctuary of a young couple’s home. A family with everything to live for was taken from us by what we now know was a disaster that should not have happened and would not have happened were it not for Transco’s corporate negligence.
Transco was fined a record £15 million under health and safety legislation. It was not convicted under Scots law of culpable homicide—it got off on that. Fifteen million pounds is double the highest fine in England, which was £7.5 million, as was mentioned earlier. Although £15 million may sound a lot of money, Transco was found guilty and culpable of the deaths of the family in Larkhall because of its corporate negligence in not spending £350 million in renewing the pipelines that would have prevented the deaths of the Findlays. It is claimed that a fine of £15 million could be viewed as a deterrent, but it does not appear so when compared with the £350 million that the corporation did not spend. The only deterrent would be a law that holds someone responsible and influences such people’s decision making so that they know that, when they give an executive order, if lives are lost, the price is their freedom. They have to be accountable.
It is no comfort to families who have lost their loved ones to hear of fines to corporations. That would not give the Findlay family in Larkhall comfort. We need legislation that protects our families. That is just. I welcome Second Reading but my test in Committee and on Third Reading will be, “Are families safer because of the Bill?” Will families, such as the Findlays, who went to their beds looking forward to Christmas, be safer because of the legislation that we pass? I hope that the answer is yes.
It is a privilege to follow the hon. Member for Lanark and Hamilton, East (Mr. Hood), who made a moving speech.
Clearly, there is a case for action, but what sort of action? My hon. Friend the Member for Beaconsfield (Mr. Grieve) made a good case for amending the Health and Safety at Work, etc. Act 1974. However, I understand that there may be good reason not to do that. If a member of my family had been killed in a tragedy such as those that we are considering, I would find it insulting that the matter was covered by health and safety legislation. Equally, having met families affected by other tragedies, who are getting over a period of grief, I know that getting justice quickly is important. It worries me that introducing a new Bill rather than amending the Health and Safety at Work, etc. Act 1974 could increase the time for bringing about justice. If a prosecution under corporate manslaughter fails, there may be another two-year wait for a health and safety prosecution.
I am not a lawyer, but in reading around the Bill I kept reverting to a basic question. Why are we pushing the Bill forward? Is it to punish corporates or for the purpose of prevention? Although there is clearly a link between the two, the question is important because of the criteria for success when we look back in future. If we are trying to punish—there is good reason to punish some of those evil corporates—why do we predict only 10 or 13 prosecutions a year? Those are simply prosecutions, not necessarily successful ones.
Perhaps a punishment argument makes sense if it pump-primes change and makes more corporates think carefully about what they do. However, if that is the point of the Bill, the regulatory impact assessment would involve significant change and extra cost. I do not mean negative cost but cost such as the £350 million that could have saved lives, which was described earlier. If prevention is the key, perhaps that bolsters the case for amending the 1974 Act and examining corporate manslaughter through that prism rather than a new measure.
I was worried about the identification principle and trying to find a directing mind in an organisation. Clause 2, which defines “senior managers”, would effectively create the same problems that exist in current legislation. The Home Secretary started to reassure me and I believed that he had taken on board all the Select Committee’s comments. However, in Committee we must examine the wording in detail because, at the end of his contribution, the Home Secretary referred to some form of judgment about the majority of senior managers. He used the words that he had appeared to try to avoid. Like the Centre for Corporate Accountability, I am worried that health and safety will be relegated in an organisation to below the level of senior managers, to avoid overall prosecution. None of us supports that.
I congratulate the Government on the welcome removal of Crown indemnity. However, they can go several steps further. Perhaps they should not include all public bodies—there is a compelling case about emergency services and the armed forces—but several hon. Members mentioned the Prison Service. Pauline Day, a constituent of mine, had a son, Paul Day, who died in a segregation unit. That led to one of the longest death-in-custody inquests in the United Kingdom. It is difficult to explain why, in such cases, the Government are effectively looking at themselves. If something is right for the private sector, why is not it right for the public sector? That applies even more to privatised prisons. A benefit of providing a public service at a distance from Government should be that the Government have greater control and can exercise greater accountability over that prison. It is ludicrous that we can put services out to private prisons, but not gain the full benefits of doing that.
The Joint Committee, chaired ably, I am sure, by the hon. Member for Hendon (Mr. Dismore), said that exempting public bodies may even contravene article 14 of the European convention on human rights. We have looked at this matter for some 12 years and I am amazed that something so fundamental should have emerged only so recently. Clearly, there remains an awful lot of work to be done.
I turn now to the Bill’s impact on company structures. Does the Minister anticipate that they will change? Will companies contract out risk? For instance, will service industries that get involved in dirtier, more risky pursuits contract out the work to avoid the risk of prosecution? That might happen even with good companies, and even when the risk is quite small. Does the Minister agree that large corporates could set up shell companies to isolate the risk? Even good companies might do that to mitigate the health and safety risk.
What is the statute of limitations in these cases? What types of case could be prosecuted under the corporate manslaughter provisions? In the past, we have had cases involving asbestos, but what will be their equivalent in the future? Will corporates that promote smoking in new markets be prosecuted?
Will customers or employees waive their rights under this Bill? If I go bungee jumping, most people would accept that it is right for me to be able to waive some of my health and safety rights, but wrong to waive them all.
I am sorry to interrupt my hon. Friend, but the Bill extends the criminal law. By and large, companies and individuals cannot contract out of the criminal law.
I thank my hon. and learned Friend for that.
I turn now to the fines. The Select Committee suggested that they should be based on turnover, but that would be wholly inappropriate, as some companies produce high-margin goods, and others low-margin goods. It would be much better to hit shareholders and investors where it hurts, and change the dynamic by moving to prevention.
I am concerned about setting up victim funds. They are laudable, but they mix up the questions of reparation and punishment, which I believe should remain separate.
The impact assessment makes little mention of the cost of prosecution, but there is a significant gap in the expertise available to the Crown Prosecution Service and the police. The HSE says that it does not particularly want to be involved in prosecution, but it is the Minister’s responsibility to say that it is the Government body with the relevant expertise in these matters. He should therefore compel the HSE to be much more involved.
I could raise many more questions, but I am conscious that other hon. Members want to contribute to the debate so I shall draw to a close. It is clear that a number of issues remain unresolved, and that we should not push forward with the Bill as long as they remain unanswered.
I begin by saying that I disagree fundamentally with the final comments of the hon. Member for Rochford and Southend, East (James Duddridge), as I very much hope that we will push forward with the Bill. Of course, we must try to improve it, and I shall make some observations later about how I think that can be done. Indeed, I suspect that at some time in the future we will have to go beyond the current proposals, but first I want to return to what my right hon. Friend the Home Secretary said at the beginning of the debate when he paid tribute to a man called Maurice de Rohan, who died a few days ago.
I first met Maurice de Rohan in the context of the Herald of Free Enterprise disaster. He lost his daughter and son-in-law in the accident, but the marvellous thing about him as a human being was that he channelled his very real grief at the totally avoidable outrage committed against his family into a search for creative answers to the problems posed by the breaching of people’s rights under the existing health and safety framework. I continue to be inspired by the humanity that he displayed in that search.
There have been many incidents over the years, such as the Piper Alpha tragedy, the Herald of Free Enterprise disaster, various rail crashes and so on. We call them accidents, but really they happened as a result of gross and culpable negligence. Unfortunately, in many cases it was never possible to prove that culpability.
Lord Justice Sheen conducted the official inquiry into the Herald of Free Enterprise disaster. In his decision, he said that the capsizing of the vessel was partly caused or contributed to by serious negligence in the discharge of their duties by the captain, the chief officer and the assistant bosun, and partly caused or contributed to by the fault of Townsend Car Ferries Ltd., the owners. The court went on to suspend the certificates of the captain and the chief officer for varying periods, but no other penalties were imposed, even though 180 people died in a disaster that should never have happened.
My right hon. Friend the Home Secretary has already referred to Lord Justice Sheen’s description of P&O, but it is worth quoting again. Lord Justice Sheen said that from
“top to bottom the body corporate was infected with the disease of sloppiness”.
He added that management’s failure to give clear and proper directions was a contributory cause of the disaster.
That is a very serious charge. The House must consider what a difference this Bill would have made had its provisions been applicable to the Herald of Free Enterprise disaster, or to the various other disasters that have taken place. The prosecution of P&O was contemplated in the Herald of Free Enterprise case, but could not be pursued under the existing legislation. However, it would be possible under the terms of this Bill. I believe that it would be right and proper for a large company responsible for a disaster to be subject to salutary action and fines, as that would give expression to the genuine public outrage at the fact that any company could behave in that way.
However, this Bill is not likely to have the same impact in cases such as the King’s Cross disaster, to which my hon. Friend the Member for Hendon (Mr. Dismore) referred. It is worth asking whether the Bill goes far enough in terms of covering everything that Parliament should do on behalf of the people who lose family members in the many different types of disaster that occur.
I hope that my hon. Friend the Minister will look at some of the technical issues that arise from the Bill. It is certainly true that we need to look into the question of incorporated as opposed to non-incorporated bodies. The hon. Member for Beaconsfield (Mr. Grieve) made a good case when he explained why he thought it inappropriate to make that the operable distinction in these matters. In addition, the Committee must look in detail at the narrow definition of management. I hope that the Minister will consider extending that definition, and I know that he has already indicated that he is prepared to do so.
When the Minister winds up the debate, will he give specific guidance why clause 18 is needed? It abolishes the application of the common-law offence of manslaughter to corporations. I understand that lawyers are reluctant to have more than one offence covering any particular incident, but my right hon. Friend the Home Secretary earlier argued that the Bill would allow the prosecution, in the most serious cases, both of a corporation and of individuals. Clause 18 appears to weaken that power, and we need to consider whether it is wise to retain it.
I am most grateful to the hon. Gentleman for letting me intervene, because although it is not for me to respond for the Government, it seems to me that if the Bill has any merit at all it is that it gets rid of the confusion and difficulties caused by the need to find in a corporate manslaughter prosecution an individual or group of individuals who can be identified as the directing mind. Removing that confusion and replacing it with the measures in the Bill is sensible, because it relieves the court and the prosecution of that hurdle. I agree that the Home Secretary did not have full mastery of his Bill, but he was clear about this point, which he made a couple of times: the individual personal liability for manslaughter by gross negligence remains. If the Bill has merit, it is that of getting rid of the confusion that has led to many wasted prosecutions—wasted time, emotion and cost—chasing corporate defendants through the principle of identification, so I urge the hon. Gentleman to reconsider his criticism of clause 18.
I listened with care to the hon. Gentleman, but I ask him, too, to reflect. Although I understand the concept of getting rid of a test that has proved burdensome and has therefore prevented prosecutions, when it is clear that there actually is a controlling mind, which behaved inappropriately or, in some cases, outrageously, it does not seem inappropriate to maintain on the statute book the present manslaughter test that would allow prosecution of an individual as well as a corporation.
People will have to come to their own subjective view on the big questions about the point of the legislation. In the end, if the question is not really whether lawyers can define in court the right and proper way to judge a case before the judicial process, but something rather different—whether the legislation can help us to change the health and safety culture—we have to examine how the law can best help us to change the minds of employers or managers who are sometimes reckless, but sometimes simply indifferent.
To go back to the Herald of Free Enterprise case, it is almost inconceivable that we could go as far as saying that any of the senior people in P&O deliberately set out to kill passengers on the ferry. That would be a charge too much, even for me, as someone who has the lowest possible view of P&O management at the time—those sloppy managers who were unfit to manage a large company. However, in that context, was the law that applied to P&O at the time, which included the concept of potential corporate manslaughter—even though it was not possible to prosecute in that case—so clearly defined in the minds of management that they could take risks under that law that they would not take under the law that we propose to introduce? It would be incredible if there was such a fine degree of decision making among managers about the level of risk they were prepared to take in a given situation.
The problem with P&O was that the company was reckless not by deliberate action, but because health and safety did not figure strongly enough in its culture at the time. The company took no real action to drive through a health and safety regime.
I hope that the Government will continue to consider the need to make sure that those who should drive the health and safety case through companies have a specific responsibility. In the case of the Herald of Free Enterprise, that was not the captain, the chief officer or the bosun, but the most senior P&O managers who failed to make the safety case throughout their whole corporate structure and thus allowed such lax standards that 187 people died.
If we are to change that culture and to stop not only those who are deliberately indifferent, but—much more commonly—those who are simply casual in their view of their employees and the general public, there must be direct responsibility for health and safety. There must be named directors for health and safety—as there are for financial duties—whose role and responsibility is to drive through regulations about acceptable standards throughout the organisation. The health and safety directors would thus have an adequate defence if things went wrong, because they could show that there was due diligence in the company and a proper attempt to provide a healthy and safe working environment. If that was not so, the health and safety directors should end up in prison—as they should have done in the case of the Herald of Free Enterprise.
I strongly support the Bill, although I hope that we can improve it. I hope that we can go beyond its provisions and make the safety case that will drive through proper, safe working environments, not simply for those in the workplace but for those who use our places of work—ferries, trains and so on. We must make sure that in the future there will not be another Herald of Free Enterprise, and I shall not have to pay tribute to people whose humanity transcends personal tragedy because we shall have stopped the personal tragedies.
I start by agreeing with a sentiment that has been expressed by Members on both sides of the House during the debate: a great many bereaved families across the country have waited a long time for this gap in the law to be plugged. To that degree, I congratulate the Government on making an effort to do just that. I fear, however, that this Bill is not the legislation for which all those families have been waiting.
I want to deal with two problems, both of which other Members have touched on already. The first problem, which the Government have correctly identified, is with the original common-law offence of gross negligence manslaughter—the difficulty of identifying the directing mind. That is the right problem to focus on, but I fear that we have only a partial solution, because the Government have introduced a piece of legislation that deals with it only inasmuch as it narrows down the offence.
The Bill refers to senior managers and the need to identify negligence as being perpetrated by them as a group. I accept that that is better than trying to find an individual manager, but it is still not quite good enough. It will not avoid entirely the difficulty posed to the Crown Prosecution Service and juries by the original common-law offence—trying to find out who in particular was responsible. An element of that concept must be retained, because to determine that the people responsible were senior rather than junior managers, a degree of detective work is required by the CPS and a degree of judgment by the jury. That problem has not yet been resolved.
The more substantive problem, on which I want to focus specifically, is Crown immunity. Like other Members, I applaud the removal of Crown immunity in principle, but I suspect that through the lengthy, detailed and wide-ranging exemptions under clauses 4 to 8, that good move has been substantially undermined. The exemptions are far too wide.
The Government have set out to do something worth while and noble—to deliver a level playing field between public and private enterprises. Unfortunately, that is not what the Bill delivers. The excessive width of the exemptions is wrong for two reasons. They are needlessly and damagingly wide. I say damagingly, because the impression may be left in the mind of the public that the Government are trying to protect themselves from the things on which they are most vulnerable—the cases that are most likely to come to court under the Bill. It would be most unfortunate if that were the perception given by the Government, although I do not think for a moment that is their intention. However, unless that part of the Bill is amended, there is a distinct danger that that impression will be given.
We do not want it to appear that the Government are including in the exemptions all the cases that have appeared in the headlines in recent months and years and all the cases in which the public might think that the Government were most vulnerable to a prosecution in the public sector for corporate manslaughter. In respect of this Bill, the maxim remains true that hard cases make bad law—and that includes cases that are hard for the Government, just as it includes cases that are hard for everyone else.
I shall explain why such exemptions are needless. There seems to be insufficient trust in two important bodies in the criminal justice system. One is the CPS, on which we rely to choose which cases should be prosecuted and which should not, and the second, which is more important in many ways, consists of juries. We can rely, and we have relied, on juries to make a distinction between cases that genuinely involve corporate manslaughter on the basis of gross negligence and those that do not.
At this point I, too, should declare an interest: as a barrister, I have had quite a bit to do with juries in my time, and my judgment is that, generally speaking, juries exercise common sense and good judgment, and can tell the difference between what is gross negligence manslaughter and what is not. However, the Government have not given juries the opportunity to do so in relation to a vast swathe of public sector activity, and we should give them that opportunity.
The Government fear that the result will be convictions for gross negligence manslaughter in cases where, for example, the police are involved in a counter-terrorist activity, the emergency services are involved in a rescue or the armed forces are operating in a military situation. I do not believe that juries, properly directed by the judge, will reach those conclusions. So I think that we ought to trust juries, because that will enable us, as a legislature, to present the public at large, who, as other hon. Members have observed, have waited a very long time, with legislation that is fair and equitable across the board, and does not make exceptions where they should not be made.
Of course I accept that exceptions should be made in some cases—military operations in the theatre of conflict are a perfectly good example—but the exemptions in the Bill are too wide. The military exemptions do not just cover operations in the theatre of conflict. They could be interpreted to cover even basic training. That is too wide, and there is no reason why the Government should be concerned about narrowing those exemptions. I firmly believe, based on my experience, that juries are unlikely to reach the wrong conclusions in such cases.
I should like the Bill to be improved. I believe that its principles, aims and objectives are worth while, but it is not the Bill that it should be. It is not the Bill for which thousands of families across the country have waited so long, and it is not the Bill that they deserve, because it appears not to level the playing field between the public and private sectors, although it could do so far more effectively. It is crucial to ensure that the Government—the state—legislates for everyone, not just for everyone else. That is why the Bill needs to be improved. I hope that during its passage through the House it will be improved, and that we will produce the legislation for which we have all been waiting for a very long time.
I am very pleased to speak in this debate because health and safety at work is a matter in which I have a personal interest and a union concern, as a lifelong member of the Transport and General Workers Union. I believe the proposals before us represent a significant step forward. The Government propose to prosecute companies whose gross negligence leads to the death of employees or members of the public. If a company is found guilty of corporate manslaughter, the penalty will be an unlimited fine and a possible remedial order to address the cause of the fatality. Those provisions will cover most public sector and voluntary organisations. That is an extremely important change, but I hope that the Government will be persuaded to be bolder still and incorporate in the Bill measures regarding directors’ duties and custodial sentences for those found guilty of corporate manslaughter.
I will admit that, as a newly elected MP, when the then Home Secretary—my right hon. Friend the Member for Blackburn (Mr. Straw)—announced at a Labour party conference that in October 1997 Labour would introduce corporate manslaughter legislation, I was expecting the conventional nine-month gestation period before the delivery of the commitment, not the nine years that have come to pass.
Like many colleagues here, over the past nine years, I have regularly raised the matter in the House and written to Ministers, calling for the inclusion of corporate manslaughter in the next Queen’s Speech, and the next Queen’s Speech, and so on. So, today, I should like to place on record my appreciation for the work done by two ex-Members who are no longer full-time politicians, the first of whom is Ross Cranston, who introduced the Company Directors (Health and Safety) Bill in 2003, and the second is Lawrie Quinn, who introduced the Health and Safety at Work (Offences) Bill. Both men championed this cause with passion, skill and persistence.
We all accept that the key focus of policy regarding health and safety at work must be on the prevention of accidents and fatalities at work. The development of trade union health and safety representatives, working co-operatively and constructively with management, has a significant role to play in the workplace. Labour has long argued that being green is good for business—I note that the Conservatives have now joined us on that. We also say that good safety is good for business because it is an investment in a company’s most important resource—its work force. I look forward to support for that from Conservative Members today.
Some of the key figures show the extent of the problem that we face. In 2005, 212 workers were killed in work-related accidents. As data from the Health and Safety Executive reveal, the deterrents in place under existing health and safety legislation are, in my view, woefully inadequate. For example, in 2003-04, the average fine for a company where health and safety offences resulted in a death was just over £43,000. The average fine for health and safety breaches by individual managers and directors was just about £3,300 for each offence. It cannot be argued with any credibility that the current rules act as a deterrent.
I am sure that many Members have been supplied with tragic examples of death at work. One such example brought to my attention was that of a 15-year-old boy who died after being caught in a crushing machine, while working at a waste-recycling site in 2001. In the court case that followed, it was revealed that the crushing machine had been left ticking over while a blockage was removed, when it should have been switched off. Furthermore, the protective guards that should have prevented workers from climbing on to the machinery had been removed. The company was fined £32,000 for breaching health and safety law. The boy lost his life. No directing mind and no company director was convicted of manslaughter.
I understand that, according to the HSE, 70 per cent. of workplace fatalities are the result of management failures. It should be noted that only seven small companies have been prosecuted under the current legislation. It is unacceptable that we have seen 11 major national disasters from the King’s Cross fire to the Potters Bar rail crash, resulting in about 671 deaths, and not one prosecution with a custodial sentence for corporate manslaughter under the current legislation. That is why we need effective corporate manslaughter legislation and why we welcome and must improve the Bill. I believe therefore that, when accidents happen, workers and indeed the public at large have a legitimate expectation that the company, in corporate terms, will be brought to account and that the consequences will be serious, not minor or trivial.
In 2001, the former head of the CBI, Sir Digby Jones, said, when commenting on proposals put forward by the Health and Safety Commission as a draft code of practice, that he welcomed the elevation of this subject to the same level of consciousness in the boardroom as sales and finance. I hope that the Minister hears my point that Labour’s legislation must ensure the same level of consciousness and, most important, the same level of responsibility.
No individuals in a company are more important to ensuring safety in the workplace than directors. They decide the level of investment and priority given to health and safety. They decide whether their company is subject to proper health and safety audits and they encourage recognition of unsafe practices and their remedies. Other areas of legislation recognise the need to impose a custodial sentence, so this Bill must be seen to be closing an anomalous loophole or, more appropriately, putting a wrong right. I will return to that point later.
I and my union, the TGWU, supported the Health and Safety (Directors’ Duties) Bill introduced by my hon. Friend the Member for Jarrow (Mr. Hepburn) that sadly fell foul of the parliamentary timetable in 2005. The Bill sought to introduce positive health and safety obligations on directors. I believe a corporate manslaughter Bill will be fully effective only if there is also a specific duty on directors.
I know that there are concerns about the definition of senior management in the Bill, a point that some of my colleagues have raised today. The definition raises some important questions. Will it include regional or sectoral managers if they do not play a significant role in the company? In large companies, will it be less likely that an individual manager will be deemed to play a significant role? Who is responsible when a large company subcontracts its work? All these matters need to be satisfactorily resolved.
The other issue that I would like to address is that of penalties for flouting the proposed new law. I have considerable sympathy for those who argue that if directors can be given a custodial sentence for fraud or for breaking environmental or food safety laws, that should be an option for the punishment of corporate manslaughter. How can it be right that an identified director can receive a custodial sentence for fraud or the breach of environmental or food laws but, should the Bill become an Act of Parliament, no one is to be punished by custodial sentence when corporate manslaughter is proven and a human being has lost their life?
I ask the Secretary of State to consider reviewing the liabilities test in the Bill. The weakness of this test has been part of the problem in getting convictions under the current law and it needs strengthening. Will he also look at the Canadian system of corporate probation and consider tabling amendments to include such provisions at a later stage in the Bill? I note that Families Against Corporate Killers, which has sent a briefing to all Members of Parliament, is calling for a voice in sentencing for the families of those involved in work-related deaths that is equal to the voice of families of other manslaughter or murder victims. That proposal merits serious consideration.
If anyone is in any doubt that the Bill is needed as a priority, I ask them to look at the TUC research published last month that shows that nearly 4,500 young people are seriously injured or killed at work, which is 20 per cent. more than five years ago. One person under 25 dies every month in a workplace accident. We have a duty to offer the best protection to all workers but, for those who have a full working life ahead of them, our responsibilities are critical.
I see that my hon. Friend is reaching the end of his contribution and I do not disagree with anything that he has said. I fully support the concept of corporate probation, but the issue is not only about the punishment of those who are responsible for something that has gone wrong. Accidents and incidents happen, so does he agree that every bit as important is the idea of changing the culture, the procedures and organisational activity that take place within the workplace?
I agree wholeheartedly. The key is in the quote from Sir Digby Jones. The issue is about raising the consciousness of the directing minds of the company so that it equates and is equal to their concern to exercise their duties properly and responsibly under fraud and other legislation for which they can be given a custodial sentence if they fail to exercise their duties.
It has been interesting to see the reasoned approach of those on the official Opposition Front Bench. That amounts to an understanding that this measure is not about the nanny state and needless red tape. Health and safety at work is, as the Chancellor of the Exchequer has said,
“the mark of a civilised society”.
This Bill is welcome; in fact, it is very welcome. It has been a long time in the oven but I do not believe that it is fully formed or ready for the table yet. I hope that the Government will correct the directors’ duties omission and resolve the other concerns that I have highlighted so that we have a Bill on Third Reading that gives every possible protection to the working people of this country. With the commonality of effort described by the Secretary of State earlier in the debate, I am sure that we can do that.
I endorse the comments of the hon. Member for Eccles (Ian Stewart) about the reasoned debate that we have had. We all share the concern to try to find a resolution to the problem and to make improvements to ensure that fatalities do not happen in the future and that people receive proper justice when incidents have unfortunately occurred and when culpability can be pointed in the direction of a particular corporate.
The points that have arisen this evening are about how best we can achieve that and whether the Bill is able to seek the punishment of those responsible for deaths of members of the public and, most important, employees just going about their daily work. Will it be able to bring about a change in the culture and the mindset of companies and the directors of organisations to ensure that we have a step change in the climate and the approach governing health and safety so that accidents and incidents can be prevented in future? As other hon. Members have said, however, the Bill falls short in a number of respects. I note that this point was reflected fairly in the Home Secretary’s speech, at least on one issue. I certainly look forward to seeing the amendments to judge the extent to which those concerns are adequately and properly addressed.
The first issue I want to consider is that of identification and of how we move on from the current requirement in common law for a controlling or directing mind. My concern, as has been expressed by others, is that the Bill appears to exchange one identification test for another—that of the senior manager. The issue has been raised by stakeholders and the Association of Personal Injury Lawyers has said that the current wording
“will have the effect of fatally undermining the Bill from the outset and will result in negligent companies and directors escaping punishment through technical defences. Victims’ families will, once again, be denied the justice to which they are entitled.”
I note that the Home Secretary has said that this specific issue will be focused on, but we cannot lose sight of such a fundamental and trenchant criticism of the structure if we are to have a law that will help to provide the sense of justice that we want to achieve.
On the concept of senior management and senior management failure, it is interesting to think of what will happen in practice and what the courts will consider in testing that when this law comes before them. Travers Smith, a City law firm, said in one of its briefing notes:
“This will be a question of fact and will vary from company to company. There are several hurdles in this definition. The term ‘significant’ is intended to capture only those whose role is decisive or influential. The reference to the company ‘as a whole or a substantial part of it’ means that divisional, regional or sectoral managers will only be caught if the operations for which they are responsible represent a substantial part of the company’s operations as a whole. Clearly, the larger the organisation, the less likely it is that individual managers will be deemed to be responsible for a ‘substantial’ part of the activities of the organisation.”
In many ways, that builds on some of the comments from the hon. Member for Eccles. Clearly, the view that some lawyers seem to be forming is that if one is looking at large organisations, things will be much more difficult to pin down.
Leading on from that is how companies operate and organise themselves. For example, there may be one very large corporate concern, but it is likely to have a holding company at the top, a plc, a listed company and, underneath that, lots of operating subsidiaries. I am not clear how the test will operate in that context. To use a lawyer’s jargon, does it pierce the corporate veil or not? Ultimately, managers at a local level could be responding to directions or a general approach from a more senior aspect within the structure of the company, at the top. Is it possible to look up through the corporate structure to see who is ultimately responsible? Which corporate are we talking about? Is it the subsidiary, the intermediate holding company, the other intermediate holding company, or the top company? We need to be clear about the practical implications of how large organisations organise themselves. In many respects, one of the problems in the past has been that the existing manslaughter law seems to enable us to pin responsibility down in the case of small organisations, small companies and small businesses, where one can look at the structure that is in place, but perhaps not in the case of larger organisations, where, judging from the examples we have heard this afternoon, it has been difficult to establish that identification principle.
The hon. Gentleman articulates this complex issue well, but does he agree that if it is possible in the case of fraud, for example, to make the link between the point of the problem and the controlling mind, that should also be possible under the Bill?
The hon. Gentleman makes an interesting point that, in many respects, cuts to the heart of the argument. One of the interesting things in the context of what the Bill provides is the interrelationship with existing health and safety legislation, where that personal liability exists. That connection between the two things concerns me in terms of ensuring that, if an action is brought against the corporate as a consequence of the Bill, that does not in some way cut across or undermine any other actions that might lie against the directors personally in the context of health and safety legislation. There is a clear interrelationship that we need to look at. I listened carefully to the Home Secretary and he seemed to say quite clearly, “No. You could have an action that would rely on this Bill and that would not impact on separate potential actions that could lie against managers or directors in relation to health and safety legislation.” That is a key aspect. It is the connection between the two things that, for me, provides the solution. As the Bill proceeds, we need to test whether that works in practice.
On the other aspects, we need to consider where we are in terms of whom one can bring the claim against. This evening, we have discussed the issue of Crown immunity and the waiver of Crown immunity in certain circumstances. However, that is hemmed in by various exemptions that appear to draw distinctions in relation to factors that appear to apply equally to private sector organisations, as well as public bodies. We heard a moving and clear example of that type of case from the hon. Member for Lanark and Hamilton, East (Mr. Hood), who is no longer in his place. He talked about an investment that he said that Transco had not undertaken and said that that had resulted in loss of life.
Clearly, the same arguments could be set out in relation to public bodies as well as private bodies. The Centre for Corporate Accountability, which has highlighted that as a concern or reservation, says:
“It is important to note that such issues of resource allocation and competing interests are not unusual in the management of safety in commercial and industrial contexts—and so we do not accept that such a substantial exemption should be given to public bodies.”
It is its view that
“this exclusion sends out entirely the wrong message to public bodies and the way in which they make decisions involving the safety of the public.”
We need to examine that further. There are issues in relation to the extent to which Crown immunity applies that are right and proper. Liberty has suggested that,
“The Government seems to have drawn up a list of all the circumstance in which its gross negligence could cause death and has asked its lawyers to provide a get-out clause for every one of them.”
Although I understand the point that is being made in that quite direct assertion, I do not think that things have gone that far. However, we need to analyse carefully where exemption lies and whether it is right to draw a distinction between public authorities on the one hand and private concerns on the other. We should be trying to achieve justice for individuals, as well as ensuring that a climate of safety is promulgated and that fewer incidents occur.
We need to effect this cultural change. In relation to the assessment of cost arising from the introduction of the Bill, it is interesting to note that it is suggested that the cost may not be that large. The explanatory notes on the financial effects of the Bill say that
“because the offence is aimed at the sort of behaviour which would already be subject to prosecution (either under the existing law of corporate manslaughter or health and safety law), not all of the costs of”
£2 million to £2.5 million, and court costs of £0.1 million to £0.2 million, are likely to be
“in addition to costs currently incurred both by defendants and the Crown.”
The interesting point in that context is the extent to which we are facilitating change. There is the question whether the Bill will result in the step change that I have been talking about and whether it will ensure that we do not have further deaths, or that we limit the situation as much as possible by changing the sense of culture. We may run the risk of seeing companies or organisations that already comply either over-complying or being concerned about doing things that may well be lawful for them to do. But we may not necessarily get at those organisations that do not comply at all with health and safety legislation. In that respect, the Bill may not change that situation. It is a question of looking at enforcement and toughening up the regime for those who do not care about the application of existing health and safety law and therefore will probably ignore the Bill, however carefully we craft it and define it. But it is clear that the stated desire of providing
“an added incentive to organisations with very poor safety standards to improve”
is the right one; it is the one that we must look for.
The Bill is complex. I should declare at this stage that I am a lawyer—a non-practising one, I hasten to add, so I do not have any direct personal interest in the outcome—and as a lawyer I find the Bill complicated and difficult, which is why it has taken so long to get to this stage. That said, I welcome the fact that it has got this far and that we are putting this issue on the agenda.
Ultimately, however, we have to go back to the fundamental starting point. I refer to article 2.1 of the European convention on human rights, which states:
“Everyone’s right to life shall be protected by law.”
Protecting by law is our guiding principle, and I hope that the Bill will achieve that. At the moment, it does not, but I hope that, with the will of this House and through the changes made in Committee, we can create a statute that will fulfil the aspirations set out clearly by many Members in all parts of the House tonight, and that we provide a form of protection that provides justice, as well as improvements in health and safety.
Order. As a guide to the House, we have about 70 minutes before the wind-ups and 10 hon. Members are seeking to catch my eye. I leave it to hon. Members to do the maths.
I join in the general welcome for the Bill’s publication, despite the fact that it has shortcomings. It is the 10th anniversary of the original Law Commission report and it is time that we had some progress.
To put the issue in context, earlier today I met a delegation of people from India who work in the ship-breaking industry, in which workers are extremely casualised. In India, they get a dollar a day in wages. They take approximately 100 tonnes of asbestos out of a ship with their bare hands, and they have no medical or physical protection. Some 9,000 people are dying each year. Sometimes, we need to reflect on just how far we in this country have progressed.
Sadly, my co-Chairman on the Joint Committee that undertook the pre-legislative scrutiny, my right hon. Friend the Member for Southampton, Itchen (Mr. Denham), cannot be with us tonight because he is on jury service; there is an irony in that. But I am glad that, to judge by the comments made, virtually everybody has read the Committee’s report. Several Members have misquoted it, but at least they read it in the first place, which is helpful. Despite the suggestion from the hon. Member for Kingston and Surbiton (Mr. Davey), I welcome the Government’s response, particularly on corporate culture, remedial orders and removing the profit multiplication factor, which was a negative aspect of the original Bill.
I also welcome the Home Secretary’s comments on the definition of “senior manager”, which is an issue that we addressed at great length in our report. He said that he would write to Opposition Front Benchers, and I wonder whether he will extend that offer to members of the Joint Committee, because we took a great interest in that issue.
I am very grateful to my colleague and fellow MP for Bradford for giving way. I am happy to make sure that the Committee gets a copy of the amendments, as well.
That is probably the only thing that I will get all night.
Like many others who have spoken in this debate, I remain absolutely convinced that we will not make progress in this arena until we have individual liability of directors. This is not about revenge or prosecution; it is about changing the culture of the boardroom and changing behaviour. The day that the first person goes to jail is the day that we will really see a change in attitude. If we fail to get this provision into the Bill, the Government will have to return to the issue. It will come back to haunt them if they do not bite the bullet and include such a provision, before the Bill finishes its progress through the House.
The Committee received lots of evidence, but perhaps the most telling was from Alan Ritchie, general secretary of the Union of Construction, Allied Trades and Technicians. He gave us some horrendous tales of instructions given down the telephone by a senior manager to a site manager to do work that was downright dangerous. The following quote sums it up. Alan Ritchie said that
“if you want to murder someone in this country, the best thing to do is to employ them in the construction industry: get them as a subcontractor and kill them and you would face a fine of £7,000.”
That is where we are at. The whole history of the construction industry sums up why we are in the mess that we are in some circumstances.
The Engineering Employers’ Federation was very much in favour of individual liability. Its argument was that the good companies and directors have nothing to fear from legislation; it is the bad people who we want. This is about not chasing people needlessly, but extinguishing the bad practices and addressing the bad individuals that kill people and cause the massive accidents that have taken place.
When the Committee took evidence from representatives of the Home Office, I pressed them in particular on whether the Bill would have resulted in any change in the failure to prosecute for the major disasters that have taken place over the past 10 or 15 years. The answer was no. No matter how horrendous those incidents were—we have heard the comments of judges today—the Bill would have made no difference because no company or individual would have been prosecuted.
I appreciate the point that the hon. Gentleman is making, but there have been prosecutions—not for corporate manslaughter or manslaughter, but under the Health and Safety at Work, etc. Act 1974. Although I am sure that this is not what he intended, it would be misleading to give the House the impression that no action was taken against those companies at all. The HSE is pretty proactive in that respect.
I am trying to make two points. First, there would have been no convictions for corporate manslaughter. Secondly, it is so difficult to mount a prosecution for the existing offence of gross negligence manslaughter for individuals that no one gets convicted. That is why the legislation needs to be extended to include individual liability. There would be the same protections that exist under section 37 of the 1974 Act because the conviction of a company would be needed before an individual could be convicted. However, there are cases when the public demand that someone should at least be brought before the courts so that the case can be tested before a jury makes a decision.
Workers are killed in most such disasters, but many members of the public are also killed. The trade unions have a fantastic record of fighting for such legislation, speaking up for their members when accidents happen, representing them and giving them a voice. However, the innocent members of the public who are victims have no voice—no one stands up for them.
The evidence taken by the Committee from Disaster Action, especially that from people from the Marchioness, was powerful. The Bill provides that private prosecutions may not be brought without the prior consent of the Director of Public Prosecutions, but hon. Members should read the evidence of the people from the Marchioness and about the obstructions that were put in their way by legislative bodies, Law Officers and the legal system, which denied them any opportunity of justice, and then ask themselves whether such a provision is absolutely necessary. We need to reflect on the fact that the DPP does not have a very good track record on the issue. As I said, this is about not revenge, but justice for victims and their families.
The Committee made extensive reference to “exclusively public functions”, which is a curious phrase in the Bill. There is an arbitrary divide between government as a provider and a supplier of a service, because a prosecution can take place in one case, but not the other. The definition is difficult to follow. If the private and voluntary sectors are increasingly going to be involved in the provision of public services, the divide will become extremely grey. Frankly, it would be better if the provision were taken out of the Bill altogether. Deaths in custody are still a highly emotive issue with regard to the police force and the Prison Service. Under the definition, I think that a private prison could be prosecuted, but a public prison could not. This serious issue has caused trauma and distress to far too many people, yet no one is ever held accountable at present and it appears that the exemption will be maintained.
There has been mention of whether the penalties should be related to turnover. I welcome the Government’s commitment to consulting the Sentencing Guidelines Council, but if it is fair enough in the context of the Competition Commission that people can be fined up to 10 per cent. of turnover, something of that nature might be appropriate. I accept that in the Bill the fines are unlimited, but relating them to turnover in general terms is a reasonable approach. There is a danger of penalising shareholders. Ultimately, it is not the company that pays—it is always someone else. Most shareholders are pension funds, so penalising shareholders for the actions of individual directors is, in effect, robbing pension funds. We must be careful about that.
My final point is on cases involving companies that are foreign owned, as is increasingly the case, and the difficulty of finding the senior management who take the decisions that lead to the action on the ground. Their being abroad can result in no prosecution being possible. A corollary of that, as we have seen far too often in the past, is cases in which a company is found guilty and is hit with a massive fine, and immediately ships its assets abroad.
We raised with the Minister the possibility of creating the ability to seize assets—not to seize assets automatically, but to do it when there was a suspicion or fear that something untoward might happen. I am sorry that there is nothing about that in the Bill. The Minister will remember the classic example—I will not name the company involved in case I should not, but it is the asbestos case that arose in Armley in Leeds. It took 23 years for the residents and workers to get justice, but the day they won their victory the company shifted everything to either the Bahamas or the Cayman Islands and the people got not a penny. We would be remiss if we did not remain aware of that possibility and try to deal with it in the legislation.
I welcome the Bill, despite its deficiencies. For too long, too many people have paid the ultimate price and too many people have escaped justice. We need to take the legislation a step further to include individual liability, but I hope we will make progress on that in Committee.
The Liberal Democrat spokesman, the hon. Member for Kingston and Surbiton (Mr. Davey), mentioned Scotland in his speech. It is worth reminding the House how Scotland ended up being in the scope of the Bill. The Centre for Corporate Accountability, which other hon. Members have mentioned, summed up the position rather well:
“Ever since the Law Commission first discussed reform of the law of manslaughter in 1994, it has always been assumed that there would…be separate legislation for Scotland. The sudden decision to include Scotland in this Bill”—
the Bill before the House today—
“raises the question of how the Westminster Parliament can now legislate on corporate homicide, clearly a criminal law issue, where Scotland has long had separate laws and process from England and Wales. For this reason, CCA questions the soundness of the decision to include Scotland in the scope of the Bill.”
Let me recap the chronology up to the present point. In 2005, the Scottish Executive published a report on corporate homicide by their expert group. The report was welcomed by the Labour-Liberal Executive and by the whole Scottish Parliament, yet the Executive took no action. Instead, they deferred to the UK Government in support of the then draft Corporate Manslaughter and Corporate Homicide Bill, which did not amend Scottish common law.
In June this year, the Labour MSP Karen Gillon introduced, with all-party support, the Culpable Homicide (Scotland) Bill, which set out the criteria by which an individual may be guilty of culpable homicide, what offences were considered to constitute culpable homicide and how an organisation may be held liable for those offences. She revised the Bill in early September, but then withdrew it on 29 September, only a short time ago.
It is worth pointing out that the Scottish Bill enjoyed extensive support among unions in Scotland and in the rest of the UK. At that time, they felt that the Bill before us—referred to as “the English Bill”—did not go far enough in creating a deterrent against endangering workers and citizens alike. Indeed, the Transport and General Workers Union, to which a number of Labour Members have referred, says that it
“firmly believes that the Scottish Parliament should support legislation which will hold negligent employers and the individuals who hide behind the corporate veil to account.”
However, we are where we are and this is not a Scottish criminal Bill, but a UK health and safety Bill. I have listened to all the comments made by Members on both sides of the Chamber, and although there is unhappiness about some of the wording, there is genuine relief that we have something with which to work.
There are concerns that are common to Members on both sides of the Chamber. One is the lack of personal liability—the hon. Member for Lanark and Hamilton, East (Mr. Hood) made that point best. Other Members spoke about the difference between private organisations and some public bodies. There is the issue of the legal arguments about the fact that there is still a requirement for a duty of care. The hon. Member for Eccles (Ian Stewart) put it best when he described the inconsistency whereby individual directors were charged, prosecuted and convicted under certain claims, but not under corporate homicide, when the death of an individual or individuals occurred.
I shall briefly discuss the Scottish position, before commenting on the issue of senior managers, as I suspect that that will form the basis of the most significant debates in Committee and on Report. In Scotland, it is possible to convict a company of a common law crime if the prosecution can identify an individual or a group of individuals who were the “controlling mind” of a company—that is, whose acts and state of mind could be said to be that of the company itself—and who were guilty of that crime.
The new Bill certainly removes the need to prosecute an individual before prosecuting an organisation, which is welcome, and it bases an offence on the way in which organisations are managed and organised. However, for the new offence to be committed, it is not sufficient that the death was caused by a gross breach in the way in which an organisation was organised and managed; the failure must have been, or must be, at a senior manager level. The senior manager is defined as a person who
“plays a significant role in…the making of decisions about how the whole or a substantial part of”
“activities are to be managed or organised, or…the actual management or organising of the whole or a substantial part of those activities.”
In effect, that means that under the Bill only failures made by the most senior managers of a company would result in a company being prosecuted for corporate homicide. It means, too, that however serious the failures outside the management circle, the company may well escape prosecution under the legislation. That poses a danger because while small and family businesses and businesses with simple management structures may be easily subject to the new law, as they were with previous measures, large companies with complicated management structures may well escape prosecution. Actions taken on their behalf by junior managers—perhaps by foremen, particularly on building sites—that lead to the death of individuals could result in a company escaping prosecution.
Earlier today, the Home Secretary stated that individual directors could still be prosecuted under the common law offence of manslaughter, but the hon. Gentleman may be aware that in Scotland the offence of culpable homicide in common law does not include a definition of gross negligence. Does he accept that the common law position in Scotland needs to be revised, too, so that we can achieve some degree of equivalence?
I certainly do. Whether or not the law is passed, either as it is or amended, we will have to revisit the position in Scotland, if not to achieve an absolutely comparable position, certainly to ensure that there are no loopholes in the Scottish common law position. I certainly agree to that extent.
I want a good law, as does everyone in the Chamber, which adds to the protection for workers and customers, and does not unnecessarily chase, harass, or penalise directors, but forces a change in culture so that that is no longer necessary. As other Members have said, I suspect that the Bill as drafted does not address all our concerns. I hope that the Minister can give us some comfort in his summing up, and I very much look forward to amendments that will be tabled, both in Committee and during further proceedings on the Bill.
This Bill has been a long time coming, as many of my hon. Friends and other Members have said. I am sure that it is clear to the Minister that it does not meet the aspirations of many of us who have argued over many years for the creation of a statutory offence of corporate killing. For all that, I welcome the Bill and congratulate my hon. Friend on securing it. It is important that we have established the principle and can move on from there.
For many of us who speak in today’s debate, this is not just an intellectual or even ideological issue. Our motivation comes from practical experience, as was well exemplified by my hon. Friend the Member for Lanark and Hamilton, East (Mr. Hood). In my case, as a young solicitor in the north-east of Scotland, I dealt with many personal injury cases, a high proportion of which came from the North sea oil and gas industry. I remember one particular case in which an oil worker had been seriously injured on a drill floor. The circumstances of the case and the way in which he was treated after the incident were horrifying but not unusual. I was negotiating damages on the worker’s behalf with a representative of an American insurance company. After we had gone through the nitty-gritty of the case and done our bargaining, I asked him why his company tolerated its client’s behaviour and the lack of a proper safety system. His response was fairly blunt and shocking. He told me that it was cheaper for oil companies to pay out higher premiums than it was to stop production or to interfere with processes.
I am glad to say that that situation has changed. That incident happened at a time when the North sea oil and gas industry was being opened up and there was a Klondike mentality. The consequences were obvious in the number of serious injuries and deaths but, while the deaths were limited to individual incidents, the lack of a safety culture was tolerated, not only by the insurance companies and their clients but by the then Government.
My second practical lesson concerned the inevitable consequence of that lack of safety culture: a major disaster in the North sea. In July 1988, the Piper Alpha oil production platform exploded and 167 men were killed. That is still the worst ever disaster in the oil and gas industry anywhere in the world. The then Government ordered an inquiry under Lord Cullen. As expected, he discovered a very poor safety culture and his detailed report showed failings around a wide range of operations and functions on the platform.
When I look back at that difficult period in the immediate aftermath of the disaster, I can remember that many people in the oil and gas industry were stunned that the platforms that they had built—even one on the scale of Piper—were not capable of withstanding an explosion. What is more shocking now than anything else, though, is the complete lack of surprise that we all had about just how poor safety in the North sea oil and gas industry was. It was common currency that the disaster could have happened on any one of a number of platforms. I think that we all just accepted that it came with the territory.
It was not only the operating company, Occidental, that was at fault. The Cullen report revealed that in June 1987, a year before the disaster, there had been a fatality on Piper Alpha. Department of Energy inspectors—the inspectorate at the time—inspected the platform and pointed out a catalogue of deficiencies. In June 1988, they inspected it again to follow up their original inspection. It is clear from Lord Cullen’s report that none of the deficiencies pointed out in the earlier inspections, which had led to the death of a worker, had been remedied and that there had been no improvement. Less than a month after that last inspection, Piper Alpha exploded.
There were serious failings in the operator safety systems and even more serious failings in the Department of Energy and the regulators’ inspections. There should have been prosecutions for corporate killing against the oil company operators and against the Department of Energy. The Lord Advocate of Scotland decided not to prosecute Occidental and there was no possibility of a prosecution against the Department of Energy because of Crown immunity. Both could have been prosecuted under the Bill. It is welcome to remedy those failures alone, particularly in the sense that it removes Crown immunity, in circumstances that are of course limited, but important.
I should like to refer to several points of detail. Some have already been mentioned and I shall rattle through them fairly quickly. Mindful of the comments made by the hon. Member for Dundee, East (Stewart Hosie), I welcome the fact that we have a UK Bill that recognises that there are different legal systems that provide a common set of principles and approach. Company law, employment law and health and safety at work law operate across the whole of the UK, and that approach allows us to have some consistency. There are points of detail relating to the Scottish legal system that will have to be addressed and I hope that the Minister will be able to deal with them in Committee.
On senior managers, I welcome the comments that the Home Secretary made earlier and hope that the Government will be able to deal with the many points that have been raised on this issue on both sides of the House. The last thing that we want is a Bill that provides loopholes to companies that will make it even more difficult to get a prosecution. This is an important issue, and I look forward to hearing the results of the Minister’s deliberations.
The most difficult issue, and probably the most contentious, is that of individual liability. I listened carefully to the Home Secretary earlier and I accept that it is important to focus on corporate responsibility. However, I find it difficult to understand why the Bill is drafted as it is, when individual directors and managers can be prosecuted under section 37 of the Health and Safety at Work, etc. Act 1974 in circumstances in which corporate responsibility is also relevant. It is important that Ministers should listen to the strong points that have been raised on this issue today.
There is also the question of the extent of liability and the exclusion of non-incorporated bodies and I know that my hon. Friend the Member for Glasgow, North (Ann McKechin) wants to make an issue of that in relation to the difference between partnership law in Scotland and England. That provision creates a particular problem, because the building and construction industry has one of the highest rates of industrial injuries and deaths, and a large proportion of the contractors and sub-contractors in that industry are not incorporated bodies. We must look at the issue very carefully.
The Bill provides for only two penalties: fines and remedial orders. I shall be interested to hear how the Minister expects clause 10 to operate in this respect. It is unfortunate that the Government have not taken the opportunity to be more imaginative in regard to the way in which penalties could be applied. I know that representations have been made by the TUC, among others, about extending the range of penalties available. For example, it has proposed a penalty of corporate probation, which is quite a novel idea that I had not heard of before the TUC raised it with me. I have now been given an extremely interesting paper on it. The disqualification of directors, among other measures, could also provide incentives to ensure that companies take the legislation seriously and make a real commitment to improving their safety culture.
I think that I am the only person to raise this next issue. I practised law for the last time nearly 20 years ago, so I am rusty, but I was a wee bit worried when I read clause 22(2), which provides:
“Section 1 does not apply in relation to anything done or omitted before the commencement of that section.”
I understand the principle that legislation should not be retrospective. However, that subsection seems to provide a defence to a company that had procedures in place before the commencement of the Act that resulted in the death of one of its employees after its commencement. I might be misreading that provision—as I said, I am very rusty in the legal area—but I hope that a court would not use it as a basis on which to acquit if a company had done nothing since the establishment of its procedures until the death of the worker in those circumstances. If there is a fundamental weakness in a safety system, or a decision that leads to a death, that is a continuing matter until it is changed or until there are consequences. I would not want to rely on the ingenuity of the judiciary to make that decision for me and I would be grateful if the Minister could examine that subsection again.
For many of us who have had experience of a death at work caused by criminal negligence, including the families and survivor friends, there is a great deal of unfinished business. We cannot turn back the clock, but the Bill will help many people to find some closure and I support it wholeheartedly.
The hon. Member for Eccles (Ian Stewart) said that this was not nanny state legislation. I agreed with the generality of his remarks and with that particular remark. In recent years, we have had perhaps several nurseries-full of nanny state legislation, but this is not nanny state legislation. This is an important area of the law, in which we need improvement on present practice and it is right for both Front Benches to look for a consensus in the search for that improvement.
It was also the hon. Member for Eccles who underlined the seriousness of what is at stake by mentioning a number of tragic incidents. He mentioned Hatfield, which is close to my constituency, and Potter’s Bar, which is in my constituency. I strongly sympathise with all who have complained about the delay in the resolution of such tragic incidents. Three and a half years after the Potter’s Bar rail crash, my constituents are still waiting for an inquiry that would give them answers to their questions. The family of my constituent, Agnes Quinlevan, who lost her life, are waiting for recognition of the value of that life.
I also agree with the approach of my hon. Friend the Member for Beaconsfield (Mr. Grieve). He took a very reasonable and well-informed view. We need to see how we can improve this legislation. The first thing that strikes me as being in need of improvement is the complexity. We can improve the Bill through simplification. It deals with a complex area of the law and, as the debate has shown, it is not without complication itself. We must remember that it will have to be implemented by the courts and understood by juries, whether or not they benefit from the services of the Chairman of the Home Affairs Committee. They need to understand the legislation, and there needs to be as little room as possible for escape through the loopholes that complexity inevitably brings.
The Bill also needs to establish effective deterrents. We are talking about a very serious crime, with the most serious of all consequences. Of course the vast majority of employers are responsible and caring people, but a small minority are unscrupulous and irresponsible, and in some cases criminally negligent.
The issues at stake are profound. Serving on the Joint Committee of the Home Affairs and Work and Pensions Committees, which looked into the Bill, I was struck by the evidence that we heard from groups and individuals. It brought home to me—if it needed to be brought home—just how profound the issues are, and just how tragic the consequences can be. There was, for instance, the evidence from the mother of Simon Jones, on behalf of the Simon Jones memorial campaign. The Home Secretary mentioned that lady in his speech, and his quotation from her words was apt.
Let me briefly remind the House of the background to the case. Simon Jones was a 24-year-old university student taking a year out in 1998 who signed on at an employment agency to obtain work. One morning, without prior knowledge of where he was being sent, he was put in a taxi and sent to Shoreham docks. Within two hours of his arrival, he was dead. I am sure that all of us who heard the evidence from that lady before our Committee, and that of many other groups—including evidence on the Marchioness case—were moved, and understood the need to establish effective deterrents to try and safeguard employees and members of the public as much as possible.
We need to view the Bill according to the criteria set out by my hon. Friend the Member for Beaconsfield. We need to ask what difference it makes and what, in practical terms, it adds to the existing law. We hope that it will make a difference, but I have one slight reservation on which I should like the Minister to comment. I have some idea of the extent of the problem, and it must be emphasised that we are talking about a very small minority of employers, but all the indications are that there is a problem that needs to be addressed.
According to the explanatory notes, it is estimated that between 10 and 13 additional cases of corporate manslaughter will arise following the implementation of the new offence. Does that figure do full justice to the extent of the problem?
As for penalties, I agree with my hon. Friend the Member for Beaconsfield about the level of fines. We must have appropriate levels that create a deterrent. Let us look at innovative penalties for the offence, bearing in mind the obvious restrictions on the type of penalty that there are for corporate bodies. In its evidence the CBI said that it was fully prepared to accept the proposal as a good basis to explore, taking a responsible and enlightened approach. There is a consensus on effective deterrents and on an effective and simplified law. That consensus exists across responsible employers, employees, trade unions and members of the public. We need to do justice to their concerns and to that consensus.
I believe in free enterprise and the freedom to innovate, but not in employers having the freedom to be criminally negligent. We must crack down on that. Let us work together so that we have a Bill that achieves that end.
I am grateful for the opportunity to put on record my support for the Bill, so far as it goes. As we have heard many times today, we have waited for a long time for the Bill. Many on this side of the House and in the wider Labour and trade union movement—as well as those who have been directly affected by incidents, particularly in the workplace—have campaigned long and hard for legislation that will protect all those in the workplace. We wanted a Bill that would cover all employing organisations, whether public, private, voluntary, incorporated or unincorporated, and the individuals who own and manage them. The Bill must hold all of them accountable under the law.
Clearly, the Bill in its current form does not go as far as that. We have heard many times from Members on both sides of the House about how it could be improved to provide more protection for more people. The reality is that the Bill will help some people.
We heard a number of powerful examples from hon. Members, such as my hon. Friend the Member for Aberdeen, North (Mr. Doran), of situations where the Bill might provide great assistance. We know that, every year, more than 200 people die in the workplace. Last year, 384 members of the public died in the workplace as a result of negligent employers. We know that 1,000 other people died in road traffic incidents related to the workplace. Many other incidents are not recorded, including incidents that happen at sea but not logged.
We are told that 70 per cent. of those incidents result from health and safety failures and negligence by management. We are aware of the scale of the problem and of the human tragedies that are involved. I met with my constituent Dorothy Wright earlier today, whose 37-year-old son Mark was killed last year in a workplace incident. She said that it was “a mother’s worst nightmare.” Her son was incinerated at work as a result of failures in health and safety in the workplace as well as failures in legal practices. That was also a tragedy for his wife and two young children.
The reality is that many of those affected are young people and they are most at risk, which makes it an even greater tragedy if there is an incident. It is vital that we make sure that we have a legal regime that provides effective sanctions to ensure that management are not willing to take risks with the health and safety of their employees. We know that we do not have that now and we know that Scottish law on culpable homicide and English law on gross negligence and manslaughter have been completely inadequate to deal with those issues. I thus ask the Minister to look again at the legislation and perhaps to reflect on finding other ways of dealing with these problems.
Many hon. Members have expressed strong views about the need for individual directors to have individual responsibility and to be liable for any lapses in their legal responsibility for health and safety at work. I ask Ministers to take the strength of those views into account and to reflect further on the Bill. Labour Members are certainly well aware of the strength of feeling on this issue up and down the country. We saw it at the Trades Union Congress last month, when policy decisions were taken to seek to strengthen the Bill, and we saw it overwhelmingly again at the Labour party conference, where the importance of effective individual sanctions and the responsibility of directors was emphasised. As we move through the process, I hope that those issues will be looked at again, so that we move forward from what is already good legislation to make it even more effective in certain circumstances. We want to ensure that the legislation is even better, dealing with a far wider range of circumstances.
The reality is that hundreds of people are affected every year. Some cases may not be preventable, but the cases that we are talking about—cases of gross negligence, for example—are avoidable and preventable. Those cases should be subject to the criminal law and the individuals affected should get justice in the same way that others who have crimes committed against them get access to the justice system.
I am conscious of the time, so I shall confine my remarks to issues that have not been raised in the generality of today’s debate, which has been extremely constructive. I welcome the Bill. I was privileged to serve on the Joint Committee that conducted pre-legislative scrutiny. The consensus was remarkable, except for one issue that I shall touch on in a few moments. On that, I am with the Government rather than with my Committee.
We received some moving testimony from victims’ groups, which brought home to me the depth of feeling about these personal tragedies, particularly about the lack of ability to right the wrong. People in those groups faced many years of anguish, mainly because of the lack of ability to bring successful prosecutions at the corporate level. Employers’ groups have also welcomed the Bill, recognising the importance of having it on the statute book to help companies that are indulging in best practice corporate governance in their health and safety regimes. They are doing the right thing and only the bad apples will get caught.
Somewhat against the flow of debate but in common with Conservative Front Benchers, I believe that individual liability provisions should not be built into the Bill. Speaking as chairman of the all-party group on corporate governance, my concern about going down the individual liability route is that we might find ourselves tying up major corporates in an excessive amount of red tape and weighing them down with an obsession with seeking to protect themselves from risks that they are already dealing with in most cases—[Interruption.] The hon. Member for Barnsley, West and Penistone (Mr. Clapham) takes issue with that—
The hon. Gentleman has already heard from various contributions that only a small minority of corporation managers fail to follow proper safety practices. If the Bill included provisions on named directors, I believe that it would lead to a much better safety culture, which would result in fewer accidents down the line at work. It is not simply a matter of revenge, but of how we stimulate a whole safety culture.
I hear what the hon. Gentleman says, but we already have the legislative framework that allows us to pursue directors who are grossly negligent. The downside to the benefit of providing an umbrella and blanket approach is the burden that it would place on all the good companies that conduct themselves properly. That is a serious consideration about which the Government and directors’ groups are concerned. I was about to cite a previous Home Secretary who felt that such a provision
“would increase regulatory burdens, stifle entrepreneurial activity or create a risk averse culture”.
That would drive good directors out of high risk companies and, potentially, good companies out of this country.
Will the hon. Gentleman give way?
No, I am afraid that my time is very limited.
The Bill needs to be improved in four areas. We have touched on the scope of the Bill, and the contradictions were well illustrated by my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright). Partial immunity for the public sector is a matter of degree, and the Select Committee debated the question of the emergency services having some immunity for some of their actions, as otherwise some people might not be rescued because the members of the emergency service had been instructed not to save lives. That would be a dotty state of affairs and the Government have got that right.
However, the Government have introduced several other exemptions that are illogical and nonsensical. Why should those responsible for statutory inspections, such as the Food Standards Agency, be exempted from the provisions in the Bill? Why should those responsible for inspecting child protection institutions be exempted? Why should the probation service be exempted from the provisions? I urge hon. Members to consider those points in Committee.
The issue of undertakings has been raised by other Members. In particular, the hon. Member for Bradford, North (Mr. Rooney) talked about subcontractors. It is wrong that unincorporated bodies will not be covered by this legislation in the same way as corporate bodies will be. I speak as a partner in a farming business that is unincorporated. If we had a health and safety issue, I should be capable of being sued in the same way as if the business were incorporated.
We have heard much debate on the senior manager test. I suspect that much of the discussion in Committee will be on that issue and how one defines it, in this complicated corporate world of global companies in which decisions are taken at many levels.
On the issue of territoriality, we have touched on the question of Scotland, but we have not mentioned territoriality beyond the British Isles. The Select Committee raised that issue, because several British companies operate offshore and outside British territorial waters. We have heard about the fishing industry, for example, and we should be able to pursue corporates if a negligent incident happens there. We should also consider whether the Bill should extend to British companies operating in the EU. I commend consideration of that point to the Committee.
Like several of my hon. Friends, I welcome the Bill. I also agree with some of the comments that have been made about the senior management test, and I am pleased that my right hon. Friend the Home Secretary has indicated that he is prepared to reconsider the issue. The issues of penalties and corporate probation periods are also important.
I shall concentrate on the issues pertaining to Scots law. As my hon. Friend the Minister is aware, the addition of Scotland to the Bill was a last minute call. As a result, Scotland has not benefited from the wide consultation on the Bill that has happened in England and Wales or the scrutiny of the Select Committee. That places a greater onus on the Government to try as hard as possible to ensure that the Bill works for Scotland as much as it does for the rest of the United Kingdom.
I say that because the Stockline factory explosion occurred two and a half years ago in my constituency, killing nine people. As many other hon. Members have mentioned today, the human cost of death at work affects so many families in this country. In the past 10 years, the rate of fatal injury in Scotland has, with the exception of only one year, remained significantly higher than that in the UK as a whole. Similar differences are evident in the figures for major injuries.
Scotland has a different legal environment for enforcement. Prosecutions must be made through the Procurator Fiscal Service rather than taken directly to court by the Health and Safety Executive. The Procurator Fiscal Office faces great challenges in its work load and it is perhaps unsurprising that few members have great experience in the health and safety aspect of the law.
Sadly, the courts in Scotland tend to fine much lower amounts than those in the rest of the UK. In 2004-05, the average fine per conviction was £4,846—a decrease on the previous year of £8,191. We need a much better partnership between the Health and Safety Executive, the Procurator Fiscal Service and judges if we are to stop being the poor relation in the UK when it comes to health and safety.
That is why I accept that Scotland cannot afford to lag behind the rest of the UK and why we should have legislation that covers the whole of the UK. However, as I said to the hon. Member for Dundee, East (Stewart Hosie) earlier, there is a fundamental difference in the common law position.
The purpose of the Bill, as stated on page 3 of the explanatory notes, is to try to cover the
“key aspects of the current common law offence of gross negligence manslaughter in England, Wales and Northern Ireland”.
It is trying to create equivalence in the law, regardless of the legal structure of the body that causes the death.
That follows the common law definition of manslaughter by gross negligence in the Adomako case in 1997. It based its description on the civil law interpretation of a breach of a duty of care. However, the definition is the exact opposite in Scotland, where, in the Transco case, which my hon. Friend the Member for Lanark and Hamilton, East (Mr. Hood) mentioned, Lord Osbourne commented:
“However, it is quite clear to me that the two definitions are fundamentally different…The Scottish definition contains no counterpart”.
If the Bill is enacted, it would not provide equivalence for Scotland but create a definition of a crime that would apply only to corporations and specific Crown bodies and not to individuals and other organisations that the measure does not cover. I do not propose that the Home Office start interfering with Scots criminal law—my hon. Friend the Under-Secretary can rest assured about that—but I hope that he will engage in urgent consultation with the Scottish Executive as well as specific institutions such as the Scottish Law Commission on the best legislative route to ensure coherence for the victims of the crimes that we are considering.
Partnerships are excluded from the Bill on the basis that, in England, they are not a separate legal entity. However, the opposite is the case in Scotland. Partnerships are a separate legal entity and it could be argued that it would be logical to include them in the Bill.
Pages 25 and 26 of the Joint Committee report recommended that the Government provide certainty on the law of causation by including the Law Commission’s original provision in the Bill. The Government rejected that, based on several recent English legal cases, on page 8 of their response. Will my hon. Friend the Under-Secretary confirm whether the Department has taken specific advice on the matter as it relates to Scots law? If so, what were the conclusions?
Clause 16 refers to prosecutions only by the public authorities, but for some odd reason it does not refer to Scotland and I therefore presume that private prosecutions in Scotland would be permitted under the Bill as it stands. Special constables are covered in only England and Wales. I am sure that we shall try to iron out those points in Committee.
Like many other hon. Members, I welcome the Bill. More needs to be done to strengthen it to ensure that it works and I look forward such progress in Committee.
Like many other hon. Members, I support the Bill. It goes a long way towards tackling the many anomalies that have occurred over the years. However, the Committee that considers it will have a difficult job.
Unlike many hon. Members who have spoken, I do not have a legal background. However, I have a partly trade union background. I cannot claim, like the hon. Member for Eccles (Ian Stewart), to have been born a trade union member, but I was a member of the Fire Brigades Union for many years, and I am proud to have been a member.
In that regard, I want to stress that one difficulty in the Bill has to do with Crown immunity. There is a difficult line to be drawn. I am sure that everyone in the House is proud of our firefighters and emergency services, but if we are not careful the people involved will think twice before they respond to an incident, such as rescuing someone from the ice, for example. They might not be worried about their own safety so much as about the safety of the officers who follow, because they might be held responsible in a court case if something goes wrong.
That is one example of how Crown immunity could cause a real problem, but the House will recall the explosion at the Buncefield facility in my constituency on 11 December last year. The HSE had inspected the depot two weeks before the explosion took place. I accept the many stories that we have heard today about how bad employers and companies did not do the work recommended after health and safety inspections, with the result that accidents happened and lives were lost, yet that is not true of Buncefield. I shall not pre-empt Lord Newton’s inquiry, but the evidence is that the HSE inspection found everything at the depot to be safe. Even so, two weeks later, every safety device there failed.
I am not a lawyer and have no legal background, but I am pretty sure that the Bill means that the HSE would be exempt from prosecution if it were found to be negligent. This afternoon, I asked the House of Commons Library to confirm that. It is a brilliant organisation, and it very quickly produced a document for me.
In its first paragraph, the document from the Library states that schedule 1 of the Bill would mean that the HSE would be liable to prosecution, but the next paragraph makes it clear that a judge would determine whether it owed a duty of care. This House should make such decisions: as we have heard already today, it is very dangerous to leave them to judges.
I welcome the Bill very much, on behalf of all workers and members of the public. However, the Minister and other hon. Members face a very difficult job in taking it through the House. The exemptions for Crown immunity go too far, especially as they apply to the Ministry of Defence—another subject about which I have a little knowledge, although I do not have time to go into detail now. On the other hand, we must be careful not to damage the ability of firefighters and the members of the other emergency services to do their jobs in the way that makes us all so proud.
I wish the Minister and the Committee luck. I look forward to seeing the Bill come back to the House.
In the few minutes available to me, I want to concentrate on just two issues—the need to act to reduce the number of fatalities at work, and the question of directors’ duties.
My hon. Friend the Member for Eccles (Ian Stewart) said that 212 people had died in workplace accidents in 2005-06. He also highlighted why we need to set out directors’ duties, but the number of fatalities seems to have reached a plateau over the past few years, even though the health and safety code was revised in 2000. I welcome this Bill, as it will help to create a health and safety culture that will allow progress to be made.
Of the total of 212 accidents in 2005-06, 92 occurred in just two industries—construction, and agriculture, forestry and fisheries. Moreover, 54 per cent. of the total number of fatalities were caused by only three types of accident. The first type involves moving vehicles or moving objects, especially on construction sites; the second is people falling from heights and the third is falling objects. Those fatalities could be prevented. In fact, the Health and Safety Executive says that 70 per cent. of such accidents are preventable, so the important thing is to take action to prevent them.
The Bill will stimulate a change in culture. The measure needs strengthening. Being able to identify directors will give us the opportunity to move the safety culture forward, because the board of directors—the boardroom—decides on the allocation of resources for health and safety. That is why it is important that we can identify directors. It would not mean that we were taking revenge on companies—the point I took up with the hon. Member for Ludlow (Mr. Dunne).
We need to stimulate a safety culture that results in a change that reduces accidents. The legislation is important in that respect. We need to be able to identify the director because that would ensure that resources are put into dealing with health and safety. We would be able to create a different culture and move the plateau for injuries and fatalities in industry, which we have been unable to do since 2000.
My right hon. Friend the Home Secretary said that he was looking at the issue of directors. I urge him to ensure that there are powers to identify directors. That would strengthen the Bill; it would change the health and safety culture and move us forward.
It is with great pleasure that I welcome the Bill as the fulfilment of a manifesto pledge and an indication that the Government intend further to extend the protection of its citizens and the recognition of human rights. The Bill is broadly supported—although with some caveats—by the trade union movement. I am a member of the Transport and General Workers Union and refer to my entry in the Register of Members’ Interests.
I shall not repeat the wide-ranging comments made by earlier speakers. I agree entirely with their emphasis that we should do everything possible to avoid the ghastly tragedies of the past. This is our opportunity to do so.
I want to focus narrowly on how the Bill will affect members of our armed forces. I am chair of the all-party army deaths group, which focuses on peacetime non-combat deaths. It also helps to support the Deepcut and Beyond families group in drawing attention to their needs and campaigning for truth, justice and change.
I pay tribute to the Government for avoiding the easy option of allowing Crown immunity to remain and for ensuring that the protection of the legislation will be available to members of the armed forces and individuals who suffer through unlawful actions. The Bill provides further recognition that human rights do not stop at the factory gate, the entrance to the barracks or the gangway of the naval vessel.
The Bill would benefit from clarification and strengthening in several respects. First, the law should be fair to those who may be charged with offences under its provisions, but it must also be robust, to enable enforcement agencies to hold to account those responsible for the offences.
Secondly, with special regard to the armed forces, we must ensure that the curtain of military silence and cap-badge loyalty that falls over fatal incidents cannot be a barrier to effective investigation. We need to ensure that the soldier who speaks out is protected. The whistleblower plays a vital role in the prevention of all corporate crime.
Thirdly, we need to recognise the right of victims and to give bereaved families a clearer role in the process. Victims have a right to expect justice. We should be looking for ways in which their involvement and participation in the investigation and prosecution may be enhanced. The involvement of bereaved families would serve the interests of justice and assist the effective prosecution of offenders.
I have set out my hopes for the Bill, but I have concerns, which have been expressed by other hon. Members, about the possible exemptions created for activities that are not a “relevant duty of care”. As a member of the Select Committee on Work and Pensions, I note the concern expressed in the joint report on the draft Corporate Manslaughter Bill that preparation for combat operations might encompass routine training. I note especially that, in response to recommendation 37, the Government said that they would provide further clarification. In fact, the Bill extends the exemptions to include training of a hazardous nature.
All hon. Members recognise that the military are in a unique situation. Of course, combat must not be included in the Bill’s parameters, but other areas should be included. I should like the Minister to clarify exactly how the Bill will help members of the armed forces to find redress if they are asked to carry out tasks that are unnecessarily hazardous and have no reasonable military purpose, yet are stated by the military command to be in preparation for an operation.
I am sure that my hon. Friend the Minister is aware of research by Dr. Alan Porter into exertional heat illness. For the record, the reference is Porter AMW, “Collapse from Exertional Heat Illness: implications and subsequent decisions”. He has spent 15 years researching that illness, yet soldiers still die from it and he cannot find any example of where the activities involved have been of any use whatever in any campaign. That is exactly the sort of issue that needs to be addressed.
If the Government insist on including acts of preparation as an exemption under the law, can they define how far back in time or the line of causation that preparation can stretch? In May 2003, a soldier who was previously stationed at Catterick barracks died while loading tanks bound for transport by sea to Iraq. Would such activities be considered part of combat operations? Will people in garages on military bases be included in the legislation?
There has been some discussion about whether the Bill should apply overseas. Will it extend to military barracks overseas? Again, there have been such deaths overseas: 20-year-old Private David Shipley died in Germany in 2002, as a result of drowning in a pool that should have been emptied. The English coroner remarked that the account of Army witnesses bore all the hallmarks of a concocted story. The jury’s verdict was one of unlawful killing.
I could give many more examples of unfortunate deaths that have involved coroners’ inquests and where serious doubts have been expressed about what happened. Coroners and the Health and Safety Executive have found—for example, in the case of Corporal Jason Pears—that there was a corporate responsibility behind such deaths, yet no one has been prosecuted. We cannot continue to allow that to happen. The Bill gives us the opportunity to address the concerns of Army families throughout the country, where there is a clear indication of corporate responsibility in such deaths, and I look forward to the successful passage of this legislation.
The hon. Member for Blackpool, North and Fleetwood (Mrs. Humble) was the 20th contributor to the debate, and the House can congratulate itself on that. We started late, for perfectly understandable reasons, but I will be the 21st and the Minister will be the 22nd contributor. The debate has been good-tempered and well informed, and the House should also congratulate itself on that. I hope that I do not take us off that line as I sum up on behalf of the official Opposition.
As everyone has said, this Bill is hugely well intentioned. There cannot be anyone in the House who wants to see people being killed at work, and there cannot be anyone who runs a company, undertaking or public service who goes into work saying that he or she looks forward to increasing the number of avoidable fatalities at work. We come at this issue by agreeing that 212 deaths—or whatever the figure may be—are too many and that it is worth attempting to do what we can to reduce the number.
The Bill has been questioned or welcomed in a guarded fashion by Members on both sides. As my hon. Friend the Member for Beaconsfield (Mr. Grieve) succinctly pointed out, it will have to stand comparison with the Health and Safety at Work, etc. Act 1974 despite the concerns about individual prosecutions and the fact mentioned by Members on both sides that the average penalty has been small in relation to the hideous consequences of an accident or gross negligence that causes death.
I fear that the Bill may not do what we want it to do. As my hon. Friend the Member for Hertsmere (Mr. Clappison) said, this is a complex area of law and the fact that it is complex means that things may need to be improved over time, or that there are issues that the Select Committees dealing with the work of the Department for Work and Pensions and the Home Office or the Joint Committee on Human Rights, chaired by the hon. Member for Hendon (Mr. Dismore), might wish to consider once the Bill becomes law.
Whichever side of the House we sit, and whatever our professional or other background, there is a consensus that we need somehow or other to engender a culture in the workplace so that managers and employees feel safe and can go to work knowing that if something goes wrong, a system is in place that will provide justice for their families.
I appreciate the perfectly natural and human desire that we all share. Several hon. Members have mentioned constituency cases. The hon. Member for Lanark and Hamilton, East (Mr. Hood) mentioned the Larkhall gas disaster, the hon. Member for Aberdeen, North (Mr. Doran) referred to Piper Alpha, my hon. Friend the Member for Hertsmere mentioned the Potters Bar railway crash in his constituency, and the hon. Member for Hendon referred to the King’s Cross disaster, which affected him as a practising solicitor. Members have been able to draw on their personal or constituency experiences to the benefit of the debate, and they have reflected the public’s need to see somebody held responsible for terrible accidents.
Some of those accidents have led to the deaths of perhaps one or two people, and some, like the Herald of Free Enterprise at Zeebrugge, which was mentioned by one of the Labour Members with shipping or maritime experience—[Interruption.] The hon. Member for Dover (Gwyn Prosser) is not in his place at the moment. In the Herald of Free Enterprise disaster, as in King’s Cross and some of the other railway disasters, huge numbers of people lost their lives. So, what do we do about that? What do we do that is sensible and practical?
Of course, every fatality is a terrible thing for the family involved. For example, most people who have had a loved one killed in a car accident, as a result of careless driving or of someone at the wheel being well over the limit, want something to mark the appalling tragedy that has hit their family. Often, the victims’ families leave court feeling that they have not had their genuine concerns assuaged. Parliament must do what is right, of course, but it must also limit itself to doing what is possible. We must not over-promise and we must not increase expectations to a level at which they cannot be met, and thus decrease public confidence in the justice system or the law-making system as a whole.
As people have discussed the Bill, concerns have been expressed about the meaning of “senior manager” and about the decision by the Government to give the judge the power to decide whether the relevant duty of care exists in a particular case. Concerns have been expressed about the way in which Crown immunity should touch on the armed forces and the emergency services. There have been some interesting discussions about the way in which the penalties and the remedies that the Bill provides should operate. There is room, certainly under the clause 10 remedies, for some quite imaginative thinking. There was concern, for example, that company directors could not be disqualified under the Bill. Well, who knows? Perhaps a thoughtful Minister at the Home Office might come up with a draft set of guidelines that would, for example, lead to amendments to the Bill that would allow for one of the remedies to be that a particular individual should no longer be allowed to serve as a company director, either for ever or for some period of time. The Committee ought to focus its mind on that sort of thing. I am sure that the Government, with all the assistance that they have at their disposal, will be willing to consider that.
I dare say that the Home Secretary, in his opening remarks, did not display his usual mastery of his brief. He may have been distracted by what was going on in the other place, where I fear the Government suffered a serious defeat on the proposal to abolish the prisons inspectorate. However, he was able to take on board the fact that there is an area of concern about the liability of unincorporated bodies. We may well see more of that in Committee.
I have only a very little time left to sum up, which I do not mind at all because that has made it possible for 20 speakers to get in ahead of me. I am pleased to say that during the debate broad themes have emerged. First, there is the need for the Bill to work. Secondly, there is the need for the Bill to have UK applicability. That point has been made by Scottish Members, as well as English Members. There is also a need to make sure that the remedies and the penalties fit the crime. Above all, we want to ensure that when the Bill comes into law, as it no doubt will, it does so in a fashion that does not allow anybody to say that it was but a gesture Bill that was not designed to improve, or to change the culture of, safety in the workplace, and that the only important bit about it was its name.
The words “corporate manslaughter and corporate homicide” ring loudly across this Chamber, but we need to be sure that the Bill’s title is not the best part of it. It is the guts of it—the body—that is so important, and this Parliament, including the Standing Committee, need to concentrate very carefully on the detail of these proposals. A Bill that sounds good but does no good is no Bill at all.
Nobody in this Chamber could be more proud than I am to wind up this debate on corporate manslaughter. I am a member of the trade union Amicus, and I was proud to be a full-time trade union officer before coming into this House 12 years ago. The idea of corporate manslaughter and of corporate killing has always been with me, given my experiences as a full-time trade union officer in the printing industry. The impact of the deaths caused by corporate manslaughter has been expressed tonight in contributions from Members in all parts of the House. I was particularly pleased to hear the contribution from my hon. Friend the Member for Lanark and Hamilton, East (Mr. Hood). He made a moving speech about the death of a constituent of his and its impact on the family.
The Bill is not here by accident—it has not simply come along without a great deal of thought. As all Members have said, the issues that we have to face are clearly complex. Yes, the Bill has been a long time coming, but it is here—a Bill introduced by a Labour Government, and I am proud of that fact.
I welcome the Bill and I am very proud to be associated with it, but surely the real meaning behind it is not that we want to punish those who have killed people, but that we want to prevent them from killing people in the first place. We believe very strongly that if individuals are not named, that will be hard to achieve.
I am grateful to my hon. Friend for his intervention. It is clear that there are issues that we need to debate further, and I look forward to discussing them in greater detail in Committee.
As my right hon. Friend the Home Secretary said when he outlined the Bill this afternoon, there are differences between us, but we should not lose sight of the nature of what we are trying to achieve in respect of corporate manslaughter. The Bill builds on the health and safety legislation that Labour Governments have introduced over many years, and which we are very proud of, particularly the Health and Safety at Work, etc. Act 1974.
The Bill is a short one but, as we have heard today, the debate that it has generated is not without contention; there are complex issues that we have to face. However, there is no real argument as to whether the current law of corporate manslaughter is working: it clearly is not. It does not provide justice and it does not apply fairly to organisations. As has been said, this is about trying to bring about a culture change within organisations.
As the hon. and learned Member for Harborough (Mr. Garnier) said, the winding-up time has been limited because of the need to ensure that Members were able to contribute to the debate. Many issues have been raised and I shall try to deal with as many as possible; I shall write to Members on those with which I am unable to deal. As the Home Secretary said, we will let Members know about the amendments that we want make, particularly on the liability test.
The hon. Member for Beaconsfield (Mr. Grieve) expressed the concern that the Bill might not add anything to the existing health and safety legislation. For the families of those killed through the abject failure of organisations to meet their health and safety responsibilities, the Bill is far from pointless. It is important that culpable behaviour be properly labelled, especially to the relatives of those who have died.
Several Members raised the question of individual liability. In answering my hon. Friend the Member for Dover (Gwyn Prosser), my right hon. Friend the Home Secretary may at one point have suggested that the Bill might deal with this issue, but he was then very clear and at pains to say that it does not.
The problem with the law is that corporate liability is contingent on individual liability. That does not work because the nature of decision making in complex organisations is such that responsibility can rarely be laid at the door of a specific individual, which has made it difficult to prosecute large organisations for manslaughter. The Bill tackles that specific problem. It establishes a new basis for liability that shifts the focus from the conduct of individuals and places it on the management of systems and processes. The Bill is concerned with creating an effective corporate offence, not individual liability.
We have heard concern from hon. Members on both sides of the House about the senior manager test. We have taken seriously the points made about the test during consultation on and scrutiny of the draft Bill. Our intention is to make corporations liable when the organisation as a whole has utterly inadequate practices or systems for managing health and safety. We introduced the concept of failure at a senior level to provide reassurance and clarity on the fact that the offence should not capture failures at just a junior level. The measure was widely misinterpreted as reintroducing a form of liability that was reliant on finding individuals who could be taken to represent an organisation guilty of manslaughter.
As my right hon. Friend the Home Secretary said, we will bring forward a new test in Committee that will achieve our aims in a way that does not risk the reintroduction of an identification obstacle. We will make the amendment available to the Chairs of the Work and Pensions Committee, the Home Affairs Committee and the Joint Committee on Human Rights, which have played a crucial and central part in what we have tried to achieve with the Bill.
Our debate also touched on the position of public bodies and activities not covered by the Bill. It is quite wrong to say that the way in which we have approached this effectively brings Crown immunity in through the back door. The existing law of corporate manslaughter has no application to the Crown at all. We have lifted Crown immunity for the new offence because the Government believe that it is right that the offence applies equally to the public and private sectors when they are engaged in similar activities. It is right that Crown workers are protected by the Bill.
The Bill comprehensively covers the Crown’s duties to provide safe systems of work for employees and in the workplace. Enabling the judicial scrutiny of breaches of those duties in the context of manslaughter is an unprecedented step. This is not about applying criminal law to the way in which core Government or public functions are carried out. Carrying out such functions involves fundamental public matters, such as the allocation of limited public resources and protecting the public from harm that is often created by others.
My hon. Friend the Member for Bradford, North (Mr. Rooney) asked whether public and private prisons would be treated differently. As far as the Bill is concerned, they are both in for employer duties and the safety of premises, but they will both be out for dealings related to operational prison activities.
The debate also touched on deaths in custody and the police. My right hon. Friend the Home Secretary made it clear that there are independent inspectorates: the police have the Independent Police Complaints Commission and we also have the police and probations ombudsman.
I am grateful to my hon. Friend the Member for Hendon (Mr. Dismore), who chairs the Joint Committee on Human Rights, the report of which came out this morning. We will have to take some time to consider the issues raised by the Committee, but we will examine them closely. We believe that the Bill is compliant with the European convention on human rights, but we will read in great detail what has been said.
The hon. Member for Hertsmere (Mr. Clappison) asked whether 10 to 13 cases would be enough. That is not a limit, but what we suspect that the number of cases will be. Several hon. Members asked about the Macrory report, which is about corporate sanctions, rather than duties on directors. In Committee, we need to examine the duty of care, directors’ duties and disqualification. However, we believe that they are all affected by other aspects of Government policy, notably the Companies Bill and issues affecting the Department for Work and Pensions. I hope that we have given clarification on points raised about Scotland.
The UK has a safety record of which it can be proud, but too many people are dying at work. I commend the Bill to the House.
Question put and agreed to.
Bill accordingly read a Second time.