As amended in the Standing Committee, considered.
[Relevant documents: the First Joint Report from the Home Affairs and Work and Pensions Committees, Session 2005-06, on the Draft Corporate Manslaughter Bill, HC 540-1, and the Government’s response thereto, Cm 6755.]
New Clause 1
Individual officers’ liability
‘(1) An officer of an organisation is guilty of corporate manslaughter or corporate homicide if—
(a) that organisation is guilty of an offence under section 1; and
(b) that officer’s conduct by way of act or omission contributed to its breach referred to in section 1(1).
(2) In this section, “officer” means the chairman, managing director, chief executive or secretary of the organisation.’.—[Mr. Dismore.]
Brought up, and read the First time.
With this it will be convenient to discuss the following: New clause 2—Individual officers’ liability: penalties—
‘An officer of an organisation who is guilty of corporate manslaughter or corporate homicide under section [Individual officers’ liability] is liable on conviction to a term of imprisonment or a fine.’.
New clause 4—Members of senior management liable to disqualification as company directors—
‘Where an offence under section 1 committed by an organisation to which that section applies is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any member of the senior management of the organisation who is a director of a company, section 2(1) of the Company Directors Disqualification Act 1986 (c. 46) (disqualification on conviction of indictable offence) shall apply to him as if he had been convicted of an offence falling within that subsection.’.
New clause 6—Offence by senior manager—
‘(1) A senior manager of an organisation is guilty of an offence if by his acts or omissions which amounted to a gross breach of his duty he could have prevented an offence under section 1.
(2) For the purposes of this section a person is a “senior manager” of an organisation if he plays a significant role in the making of decisions about how the activities of the organisation are managed or organised and includes the chairman, managing director, chief executive, secretary or other director of the organisation.
(3) A person guilty of an offence under subsection (1) is liable on conviction on indictment to—
(a) imprisonment for a term not exceeding 6 months, or
(b) a fine not exceeding the statutory maximum,
or to both.’.
New clause 7—Aiding and abetting—
‘Any company director or senior manager who is found to have aided, abetted, counselled or procured the commission of an offence of corporate manslaughter or corporate homicide shall be liable to imprisonment for a period not exceeding seven years.’.
Amendment No. 40, in page 11, line 19, leave out clause 16.
Amendment No. 7, in clause 16, line 20, leave out ‘cannot’ and insert ‘can’.
Amendment No. 8, in line 22 leave out ‘cannot’ and insert ‘can’.
New clause 1 deals with one of the most fundamental points in any reform of corporate manslaughter—the need for individual liability, in respect of which there is a lacuna in the Bill. It is, in my view, one of the essential requirements of a successful reform of the law, as I proposed in my Corporate Homicide Bill. In the summer of 2003, however, the Government ruled out individual director liability in criminal law. I believe that to be a mistake.
The strongest incentive on a director would be the thought that he could stand in the dock to answer for his company’s failings that led to the deaths of employees or members of the public. Organisations can kill people, as identified in the Bill, but it is the actions and omissions of people in organisations that cumulatively cause death. Directors and senior managers should be held to account for their actions. Nothing in the Bill will ensure that directors who make decisions that lead to a death will be held liable.
Although the Bill might therefore make it easier to bring corporations to justice after a fatality, it will not increase the pressure on those who run organisations to take the necessary preventive measures to ensure that such deaths do not occur in the first place. If anything, the Bill should be about prevention, rather than prosecution. It should be intended to encourage people to ensure that there are no deaths, rather than to prosecute those who are responsible afterwards. Unfortunately, the Bill will not achieve that without new clause 1.
We shall achieve such a preventive system only when those who make the decisions that lead to workers or the public being killed are held responsible for their actions or inaction. If company directors can face individual liability for offences under the companies Acts or frauds committed by their companies, it is right that they should face prosecution if those companies kill.
Under the Bill, the only option is to prosecute for regulatory offences, but there is a strong argument that it is an abuse of process to charge a company with two offences—corporate manslaughter under the Bill and a breach of the Health and Safety at Work, etc. Act 1974—that arise from the same circumstances. But without such a prosecution and, ultimately, a conviction under the 1974 Act, directors or managers cannot be liable under section 37. Corporate manslaughter charges could, therefore, reduce the individual liability of directors in the most serious cases. With clause 16 also excluding secondary offences, one of the main requirements of reform has been rejected. After all, the purpose of the Bill must be to act as a deterrent, and without individual liability it is far less likely to do so.
New clause 1 would go some way to meet the Government’s concerns about the relationship between corporate and individual liability by referring to the conduct of the company officer concerned—it is limited to the senior, top, directors—as contributing to the breach that gives rise to the offence of corporate manslaughter. The linkage between new clause 1 and the Bill is not dissimilar to the linkage between section 37 of the 1974 Act and a substantive offence by a corporate body under that Act that can make a director liable, under section 37, for the offence of the company if it is attributable to that director’s neglect, consent or connivance.
I am not making a drafting point—I recognise that that can be dealt with elsewhere—but I should like to ask the hon. Gentleman what he has in mind by using the word “contribute”, which can refer either to a major cause or to a slight cause. I hope that he is not saying that the officer of the company should be liable for corporate manslaughter if the contribution to the breach of duty is very slight.
I deliberately dealt with that issue in that way for precisely the reasons raised by the right hon. and learned Gentleman. Ultimately, such questions would be for the jury and the good sense of the prosecution. I realise that the wording might not be as precise as the formulation in, for example, section 37 of the 1974 Act—indeed, such an option will be put before the House in other amendments—but the degree of contribution, although not particularly high, should be sufficient. My objective is to produce an offence whereby the director stands in the dock alongside the vacant chair that represents the company.
Amendments Nos. 7 and 8 deal with the problem in clause 16 by reversing it, so that individuals can be guilty of aiding, abetting, counselling or procuring the corporate offence. That provides an alternative formulation within the corporate nature of the offence, as opposed to the individual liability to which I have referred.
New clause 2 provides for the penalty for a director on conviction to be either a fine or imprisonment. That clear deterrent is needed to concentrate the mind of the senior managers on their obligations not just to run their companies within the requirements of the companies Acts to ensure financial probity, but to ensure that they are run safely too.
I understand from discussions that the Government might be considering an amendment to the 1974 Act to create a new statutory duty on directors to take reasonable steps to comply with health and safety requirements—I await the Minister’s views on that with interest—but I wonder whether that would add anything to section 37, which already provides for an offence by a director if the company is convicted. However the 1974 Act is amended, it would be a poor substitute for creating a clear offence of corporate manslaughter for which a director could be held liable, as I propose in new clause 1.
With the amendment from the hon. Member for Hendon (Mr. Dismore), we return to the issue that exercised us in Committee: the extent to which there should be personal liability on directors arising out of a company’s conviction for corporate manslaughter. I listened carefully to what he had to say and thought that he made one telling point, with which I have some sympathy. He indicated that one of the consequences of introducing a corporate manslaughter offence might be—I emphasise “might”; it would depend how prosecutors wanted to deal with the matter—that fewer directors were convicted under section 37 of the Health and Safety at Work, etc. Act if there were a serious case of death. That is because the prosecution would go for corporate manslaughter and there would be no means, in those circumstances, of implicating the directors of the company. That seems a fairly compelling point, although it could be addressed by also charging companies under the Health and Safety at Work, etc. Act. However, it is certainly a complicating feature.
Although I do not wish to revisit territory that we covered in Committee, that is why I think that the approach that we have adopted to corporate manslaughter may not be correct and why I tried to tempt the Committee into having an aggravated offence under the Health and Safety at Work, etc. Act, which would attract higher financial penalties on corporations and could attract higher financial penalties on directors if there were to be a conviction. However, I accept that that did not commend itself to the Government and I have not sought to revisit that issue in these debates, because the Government have clearly nailed their colours to the mast. They have said that they wish to have an offence of corporate manslaughter to act—this is not meant in any way pejoratively, I hope—symbolically so as to attach a particular stigma to corporations that transgress in cases of gross negligence.
The problem is that once one has established that principle, to start converting it by saying that, if the corporation is guilty, it would be right to lock up its directors, is, in principle, utterly wrong, as I have said before. Of course, there may be evidence in individual cases that means that the directors of a corporation, or indeed senior managers, might be individually charged with the offence of manslaughter through gross negligence. That must remain a possibility. I would be completely satisfied if prosecutors were to adopt a robust approach to such issues. If the evidence is there, people should be prosecuted.
We cannot, however, get away from the fact that the offence of corporate manslaughter, as we are creating it here, is different in a number of key particulars from the offence of manslaughter generally, which could be charged against corporations and/or individuals and which existed previously. To take away somebody’s liberty, which is what is being proposed, on the basis of a corporate manslaughter conviction, under the test that is clearly implicit and explicit in new clause 1, appears quite wrong.
The point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) has some force. What is the extent of the participation or contribution that would be sufficient to fix the director, senior manager or officer of a company with liability that would lead to his facing an unlimited term of imprisonment or an unlimited fine? The House should not embark on such a route lightly. In this country, we have always been reluctant to criminalise people to the point of imprisoning them for negligent acts. There are exceptions, and manslaughter is one of them. However, corporate manslaughter and manslaughter will be two different offences, in a number of subtle, but important ways.
This debate also took place in Committee, but it is worth placing it on the record that, by definition, the offence of corporate manslaughter amounts to the causing of a person’s death where there is a “gross breach” of
“a relevant duty of care”.
We are not talking about a trivial matter of negligence. As the hon. Gentleman knows better than I do, a gross breach is a strong test before the courts. It would be necessary to prove both the corporate manslaughter and the corporate nature of that manslaughter before any individual would be caught within the realms of new clause 1 or, as I will explain later, new clause 6. We might disagree about whether people should be imprisoned, but the powers will never be used for a trivial matter and the court will have to apply a strong test.
As the hon. Gentleman will be aware, one of the reasons corporate manslaughter prosecutions have been so difficult to bring under existing law is that the rule under which one must find a directing mind of the company that one fixes with gross negligence, which can then involve the company itself. That is why cases such as the Herald of Free Enterprise and others never led to convictions. Therein lies the source of the problem, because in those cases individuals clearly could not be fixed with gross negligence at a directing mind level, and thus the company could not be convicted.
The hon. Member for Hendon proposes to reverse the process and to have an offence of corporate manslaughter that will enable us to convict corporations without looking at directing minds, which I welcome, and, hey presto, to catch the directors even though no directing mind is involved. That is where the injustice might arise and why, as a matter of principle, I am unwilling to go down that road, even though I can see the temptation.
The right hon. Member for Southampton, Itchen (Mr. Denham) has an alternative approach. His new clause 4 envisages a non-custodial penalty—disqualification of the directors—and I dare say that we shall hear more from him later in the debate.
I am much more agreeably inclined toward that course of action because it does not involve imprisoning people, but I should simply make two points. First, the power already exists to disqualify company directors; it would be astonishing if they were not to face possible disqualification proceedings in a clear case where there was a prosecution. Secondly, the mechanism that the right hon. Gentleman envisages is very ponderous. It is a sledgehammer to crack a nut, because one would have to drag all the directors into the principal prosecution of the corporation merely to disqualify them under his proposals.
The hon. Gentleman makes the point that the law on disqualification already exists. Perhaps one of the problems has been the interpretation of its provisions or a lack of will to deliver on disqualifications. I am aware that the Health and Safety Commission is issuing guidelines to its inspectors so that they examine this more seriously than perhaps they have done.
I am grateful to the Minister for those comments, because I entirely endorse that approach. Some cases—even those involving corporate manslaughter, as opposed to breaches of the 1974 Act—might not justify disqualifying directors. There might also still be clear cases for prosecuting individuals with manslaughter itself. As I have said, I do not disagree with that approach.
Given that the hon. Gentleman indicated his attraction to the approach in new clause 4, does he accept that if such a provision were available to courts, they found an individual director guilty and the director then did not comply with the decision of the courts, that director could be sent to prison? If so, in the light of the learned gentleman’s knowledge, why cannot such a person be sent to prison for wilfully creating a situation on behalf of a company in which someone loses their life?
For the reasons I gave before. Someone who had been involved in the way the hon. Gentleman describes would be liable for conviction for manslaughter, and that is what they should be prosecuted for.
The point about new clause 4, which I found interesting in some ways, is that it provides a mechanism for the direct disqualification of directors, but to disqualify them one has to show that the offence was committed with their “consent or connivance”, which means that they will have to be in the dock during the trial. That is just a muddling feature, given that the same outcome can be achieved without all the paraphernalia and extra cost of holding disqualification proceedings thereafter; that was my simple point.
To come back to the key issue, if somebody commits a killing by gross negligence through their direct, personal involvement, they should be prosecuted for manslaughter under existing law, but they should not be dragged into prison because they are associated with a corporation convicted of corporate manslaughter, because there injustice lies.
I understand the hon. Gentleman’s point, but the difficulty is that such prosecutions have not happened. There are many examples, particularly among the cases of the 1980s with which we are all familiar. However, there is another incentive to consider. I do not know which of the many mechanisms before us would be the preferred course, but I put my name to new clause 6. It strikes me that the aim of the Bill—and not just the new clauses that we are discussing—is not to ensure that there is a queue of company directors adding to the overcrowding at Pentonville, but to act as an incentive to improve safety and safety culture. I do not think that existing legislation will be affected much by the Bill, but unless we introduce some form of personal liability, the culture will not improve. People will find other ways of ducking and weaving to avoid liability. It is the culture that we need to attack.
I do not disagree with the hon. Gentleman about attacking the culture. Having spent a lot of my professional life prosecuting for the Health and Safety Executive, I am perfectly conscious that one can come across examples of very bad safety culture, pervading even the director’s office, and not just the lower managerial levels; I accept all that. It may be that prosecutors were insufficiently proactive in the past, but I hazard the suggestion that the reason there have not been many convictions among company directors for manslaughter through gross negligence is that, in truth, there was no evidence on which to convict them. Although they may have been culpable of negligence, they were not culpable of gross negligence.
Of course, there are one or two cases in which such directors were convicted, and the Lyme bay tragedy is an example. However, the hon. Gentleman must accept that it may be harsh to make such a judgment when something goes wrong, particularly in large organisations, in which directors cannot necessarily know what goes on, day to day, at the bottom of the organisation—although, from the point of view of safety culture, they must make it their business to endeavour to do so.
One could tell a director that there were negligent structures in their company, but to say that the situation was so bad that the director was grossly negligent is going a step further. If the evidence exists, they should be prosecuted for manslaughter, regardless of whether they are the director of a massive public company or not; we should prosecute in such cases. However, we should not say that if a corporation is convicted under the new law, it follows that a director can be sent to prison, if negligence can be shown. Really, that is all we are saying. A contribution to negligence is all that the hon. Member for Hendon requires. A mere contribution would be sufficient to send a director to prison. I do not know about the queue of directors going to Pentonville prison, but the danger is that if we introduce such a measure, there will be a very long queue of people who do not want to be directors of public companies.
One must take a realistic view of the situation. My view is that the Bill may make a contribution to improving safety culture by shaming companies, and some of the provisions for dealing with remedies, which we shall come to later, may help, too. I am pleased that the Government have introduced further amendments on that subject. However, the proposal before us drives a coach and horses through perfectly clear and established legal principles. For those reasons, I really cannot support it.
My problem with the hon. Gentleman’s argument is that he tries to present the issue as being black and white. Surely there may be directors who are not guilty of individual gross negligent manslaughter, but who have contributed to a death by their failure in other ways. What offence does he think should be available to the courts to enable them to prosecute those directors?
Section 37 of the Health and Safety at Work etc. Act allows such prosecutions. If the hon. Member for Hendon is right that the measure will prevents health and safety at work prosecutions under that Act, I accept that there could be a problem. The key point, however, is that someone convicted under section 37 cannot be sent to prison, just as they cannot be sent to prison for careless driving. Carelessness and gross negligence are not the same thing. The amendments, with the exception of the new clause tabled by the right hon. Member for Southampton, Itchen (Mr. Denham), would create imprisonable offences. I must draw the line at that, so I do not support the hon. Member for Hendon.
I am aware of that but, equally, may I point out that I have represented a director who was successfully prosecuted? In fairness, he pleaded guilty to the offence, but there are examples of such cases. The Health and Safety Executive may have to become more proactive, but the material is available. I do not wish to take up too much of the House’s time, so I shall draw my remarks to a close. The proposals are interesting, but the official Opposition’s view remains that it is fundamentally wrong to criminalise individuals under corporate manslaughter provisions, so we do not support them.
Most right hon. and hon. Members who are taking part in this debate recently participated in an intensive programme of discussion in Committee, but I am returning to these matters after a gap. It was a year since the draft Bill was scrutinised by the Home Affairs Committee, which I chair, and the Work and Pensions Committee, so I am rusty on the finer points of law. However, my overwhelming memory is of the public’s expectations that Parliament should legislate on corporate manslaughter. We took evidence from a wide range of organisations, including well-known ones such as Disaster Action, the Simon Jones memorial campaign, the Marchioness contact group and a number of trade unions, whose officers deal directly with the families of people killed in workplace accidents.
It was clear that the job would be only half done if we were able to hold companies to account but not the individuals whose negligence contributed to the problems that resulted in those companies being brought to court. I fear that if we do not amend the Bill as it proceeds through Parliament, we, or our successors, will have to come to the House in a few years’ time to address the issue again. It is easy to anticipate circumstances in which companies that have escaped prosecution under the common law offence are successfully brought to book under the corporate manslaughter provisions that we are discussing. No individual, however, will be held to account for their part in the death, so the provision will be regarded as unsatisfactory law. It will be better than current provisions—without doubt, it will be a step forward—but it does not go as far as it could.
New clause 4 has a modest aim. I should make it clear that the Committees that scrutinised the Bill called for secondary prosecution under criminal law. To be fair, however, that was one of the few issues on which we divided, and the vote was split. We pointed out that several pieces of legislation, including health and safety legislation and the Terrorism Act 2000, provide a legal structure for secondary prosecution of individuals when companies are found guilty of an offence. My modest new clause aims simply to clarify the proposal that once a company is found guilty of corporate manslaughter, at the very least its directors, who share responsibility, as the new clause sets out, should be disqualified from serving as company directors.
As the hon. Member for Beaconsfield (Mr. Grieve) says, there might not be any need for that. I make two qualifications. First, if it requires a separate prosecution under health and safety legislation to achieve that outcome, that would not be satisfactory. Secondly, even at the slight risk of over-egging the pudding, there is an advantage in making it clear in the Bill that the House had an expectation at the very least that disqualification would follow. Personally, I would prefer to see a secondary prosecution, but we may not be able to achieve that as the Bill goes through Parliament.
The amendment suggests to the Minister some action that could be taken. He may say that every legal measure already exists, and that if corporate manslaughter becomes a criminal offence as proposed, directors will be liable for disqualification without hesitation or obstacle. That would be a satisfactory response from the Minister, but if not, the Bill should be amended here or in another place to make it clear that we can offer at least that consequence to the families whom we heard represented in front of our Joint Committee and whom we all know we will meet in the future.
I thank my right hon. Friend for the work that his Committee and the Work and Pensions Committee did in scrutinising the original Bill. I have met the families, and today I met Families against Corporate Killing, who support the principle of the Bill and want it to be enacted. They have concerns about individual liability, but they believe we are moving in the right direction. I hope my right hon. Friend will acknowledge that.
Of course. My hon. Friend has spent a great deal of time talking to a wide range of interests about the Bill, and I know he has a deep personal interest in it. That is why I am confident that, as the Bill proceeds, if there should be any doubt about the ability to disqualify directors—the issue that I raised this afternoon—he will want to ensure that it is explicit by the time the Bill completes its passage through Parliament.
When we debated the matter in Committee, I learned a great deal about the relevant laws, particularly from the hon. Member for Beaconsfield (Mr. Grieve), who served as free counsel to the Committee. There was, I am delighted to say, no remuneration from members of the Committee. It became clear to me that there is a gap in the law, and amendments Nos. 7 and 8 tabled by the hon. Member for Hendon (Mr. Dismore), which we supported, would fill the gap by creating an offence of secondary liability to the offence of corporate manslaughter. I do not support the hon. Gentleman’s new clauses, which I think go too far, but I support amendments Nos. 7 and 8. Let me explain.
As the hon. Member for Beaconsfield made clear, particularly in response to my interventions, there are at present two offences of individual liability. There is the offence of individual gross negligence for manslaughter, although that is rarely prosecuted, and there are prosecutions of a secondary party to a health and safety at work offence. Those, as I pointed out to the hon. Gentleman, are equally rare in their prosecution. The figures that I saw in the House of Commons Library brief suggested that there have been only eight prosecutions in 20 years. Whether those offences correspond exactly to the categories to which the hon. Gentleman was referring, I do not know.
May I take the hon. Gentleman back? He says he supports amendments Nos. 7 and 8, but all they appear to do is to leave open the possibility that an individual can be convicted. They do not deal with what will happen to the individual on conviction. Am I to take it that the hon. Gentleman thinks those should be imprisonable offences, which is what new clause 1 and the other new clauses are about? I saw those as linked as a package.
The hon. Gentleman will know that under the procedures of this House they are not linked as a package; that is why I signed up only to amendments Nos. 7 and 8. We do not seek to make such offences imprisonable—that is a separate debate. However, there should be a separate offence of this nature because of the difficulty of prosecuting individual gross negligence manslaughter and the rarity in previous years—although perhaps the guidance would change that—of prosecuting a secondary party as a health and safety at work offence. That is why amendments Nos. 7 and 8 are necessary.
A director who is guilty of aiding, abetting, counselling or procuring the commission of an offence of corporate manslaughter should be prosecuted for that.
The right hon. and learned Gentleman is right. There is a gap because, as the hon. Member for Beaconsfield said, acts of omission should be caught under the 1974 Act. However, there is something between the offence of individual gross negligence manslaughter, which will remain and can be acted on, and an offence under the 1974 Act. I am grateful to the right hon. and learned Gentleman for strengthening my argument.
The hon. Member for Beaconsfield also made my case when he talked about an aggravated offence under the 1974 Act. There is a gap whereby directors who have behaved very badly and should be brought to book are escaping because the threshold is too high or the prosecution of the offence is not serious enough to satisfy the understandable desire for justice on the part of relatives, victims and the general public at large.
I am listening to the hon. Gentleman with care, and I understand where he is coming from. The fact remains, however, that the Bill deals with corporate manslaughter attracting a sentence of imprisonment. Is he saying that he wants a fining regime against directors who may be linked to such corporate manslaughter if they are in some way culpable? If so, I remind him that that provision already exists in the 1974 Act. The sentencing guidelines under section 37 for cases where death has been involved could go some way towards meeting his objectives without ending up with the rather strange hybrid suggested in amendments Nos. 7 and 8, to which he has signed up without working through the logical consequence of imprisoning directors, which does not commend itself to him.
Under the Bill, the offence of corporate manslaughter is punishable by an unlimited fine. It does not sanction an imprisonable offence, as the hon. Gentleman wrongly infers. His argument today and in Committee that this is complex, difficult and illogical holds no water. As the Committee chaired by the right hon. Member for Southampton, Itchen (Mr. Denham) recommended, in a case where a corporation is being prosecuted under the new legislation, it would make great sense to be able to prosecute individual directors at the same time if they are guilty of aiding, abetting, counselling or procuring, which is a proactive involvement, not an act of omission.
Someone who aids, abets, counsels or procures a manslaughter has committed manslaughter, which is an imprisonable offence. The hon. Gentleman is diminishing the gravity of that by saying that it could be visited with a fine. If that was a fine on directors or officers of a company for failures that may have contributed to a death, it would be much better to do it under the 1974 Act.
I strongly disagree with the hon. Gentleman. Let us remember what has brought us to the point that we have reached. Individuals have not been prosecuted because it is sometimes exceedingly difficult to show that an individual is individually responsible. That is why a provision for a secondary nature, which is not being allowed in clause 17, would help greatly. Although I appreciate that the learned hon. Member for Beaconsfield was a great legal adviser to the Committee, we have received legal advice from many other learned people, who take issue with his view. They include not only the hon. Member for Hendon (Mr. Dismore) but members of the Joint Committee, which examined the matter in detail, and some of their legal advisers. It is a fine point and reasonable people can disagree about it. However, as someone speaking from the common person’s perspective who is not a legal expert, I believe that there is a gap in the law and that the amendments would fill it.
We are reverting to a point that we debated at length in Committee. I was grateful for the legal advice then and I am grateful for it now. We are discussing a key point, which the hon. Gentleman is genuinely pursuing, but I believe that his proposal would lower the threshold. The hon. Member for Beaconsfield (Mr. Grieve) is right to say that, under the Health and Safety at Work, etc. Act 1974, somebody could be prosecuted for gross negligence but that under the proposal for a fine, the threshold would be diminished.
To some extent, the Minister is right. I want the threshold to be lower than that required for individual gross negligence manslaughter because I want a gap between that offence and being a secondary party to an offence under the 1974 Act. The Minister needs to reconsider the gap or support amendments Nos. 7 and 8 when he replies to the debate.
I support new clauses 6 and 7 but I do not support the amendments tabled by my hon. Friend the Member for Hendon (Mr. Dismore) or the hon. Member for Beaconsfield (Mr. Grieve).
The issue can be approached from several perspectives. The hon. Member for Beaconsfield has given us the benefit of his learned, professional approach in Committee and in the House. However, I approach the matter as a practitioner. My background in the trade union movement of representing workers who suffered health and safety accidents at work—some families’ loved ones lost their lives in such accidents—means that my approach is much more practical. However, I accept that both approaches should be designed to ensure that such accidents do not happen in the first place.
The hon. Member for Beaconsfield and I have a difference, which will determine whether the Bill is a significant or a very significant step forward. The hon. Gentleman has questioned whether the measure achieves anything and I take a different view. I believe that, with the new provisions, it represents a significant step forward and I hope that some more developments will occur, if the Minister has the will, but it is not yet a very significant step forward.
My hon. Friend refers to issues that I hope we shall discuss later, including corporate probation and remedial or rehabilitation orders. I am happy to assure him that we are considering those matters, even if we do not reach the relevant amendments in the debate.
There may be a telepathic link between the Minister and me because he answers my questions before I even ask them. Let me make the point anyway.
We have all acknowledged that the issues are complex. To be frank, Opposition Members have taken different approaches, as the contributions of the hon. Member for Hornchurch (James Brokenshire) and some Conservative Back Benchers highlighted in Committee. However, if we are to consider new clauses 6 and 7 in as straightforward a way as possible, the first thing that we must ask is why there is a Bill in the first place. The hon. Member for Beaconsfield highlighted why we needed the Bill, by saying that there was very little chance of a successful conviction in previous court cases, even under the existing legislation. Therefore, it was necessary to establish the concept of corporate manslaughter. My belief is that the Bill will establish such a concept in law, which is to be welcomed. The second aspect of the debate is whether the duties and penalties will be appropriate once that concept is established in law. I and others have argued that the Bill does not go as far as is necessary.
I understand the Minister’s restrictions, and we have pressed him on just those issues, to which he tried to allude earlier, in a pre-emptive strike. We have sought the implementation of the concept of corporate probation. We hope that we have sufficiently impressed upon his mind, in Committee and since then, the need for such a provision, and we hope to hear about that today. We wish to see the development of what we originally called remedial orders, whereby we could beef up the court’s ability to remedy the circumstances. We wanted to implement what the Conservatives would refer to as naming and shaming—that is, to identify and record where a guilty verdict has been given, in order to ensure that shareholders, the public and other relevant bodies understand that such a verdict has been given against a company.
On that point, I want to ensure that my hon. Friend knows that I am actively considering the opportunities for filing the fact that a company has been found guilty at Companies House, and also for including that in the reports and accounts. Naming and shaming is a major step forward.
I am glad that the Minister agrees with me. However, I would counsel him to let me finish, or he might not get the whole story and might therefore give a partial answer, and I want to hear the full answer.
The difference between the hon. Member for Beaconsfield and me is about whether there should be a named director if we move to the implementation of the concept of corporate manslaughter. I and others have argued in Committee and elsewhere that if it is appropriate under other legislation for, say, a director of finance who commits a wilful act of fraud to find him or herself sent to prison by a court, why would it not be relevant where the concept of corporate manslaughter had been enshrined in legislation to do the same where a manager, director or other significant person in a company had wilfully taken decisions on behalf of the company which created circumstances under which an avoidable death occurred?
Much has been made of the advice that the hon. Member for Beaconsfield has given. It has been suggested that if directors are held responsible for fatalities of people in a company, there would be a dearth of people volunteering to become such directors. Before my hon. Friend leaves the question of director responsibilities, will he clarify whether there has been any evidence anywhere, either in Committee or anywhere else, that that would happen to a finance director?
I am not aware of such evidence—though others may be—and that is the thrust of my argument in relation to the comparative responsibilities and appropriate penalties in different pieces of legislation. Actually, I have yet to agree with the hon. Member for Beaconsfield on any of his points. I understand—and have sympathy with—the background information that he has presented at every stage, but it would be wrong to accept that, because we agree on the nature of the issue, that means that we agree on the remedy. As in other legislation, some person must be identified as the responsible director or significant person on behalf of the company.
I have listened to the hon. Gentleman’s comments on his proposed offence in new clause 6. Can he conceive, however, of circumstances in which a senior manager of an organisation, as defined in new clause 6(1), could commit the sort of wilful, gross breach of duty described and not be guilty of gross negligence manslaughter under existing law?
When we move to the conclusion of the Bill and it becomes, I hope, an Act of Parliament, we move to a different place in which two different offences exist. I would certainly not argue that we should get rid of the individual offence of gross negligence manslaughter; it must stay. If the Bill progresses, however, we will have an Act that identifies a corporate responsibility. In the past, collectively, we have argued about a corporate responsibility without there being anyone responsible on behalf of the corporation.
If the hon. Member for Beaconsfield is going to seek to minimise the problem and, through sophistry, give the impression that there are no bad directors or significant people in companies who wilfully create a circumstance in which people are killed, he and I will disagree again.
I am a little disappointed, having spent time with the hon. Gentleman in Committee, that he should think that I would commit such sophistry. I hope that I have made clear my view that some directors richly merit being prosecuted for gross negligence manslaughter personally or being disqualified from office under the Health and Safety at Work, etc. Act 1974. I was going to make a suggestion to him, which might also be of interest to the Minister.
The hon. Gentleman wants a responsible individual within the corporation to be identified. He might wish to consider the issue of procedure, as it is not clear to me whether a conviction for corporate manslaughter immediately fixes a company with convictions under the Health and Safety at Work, etc. Act, and there is a strong argument that it should do so. If it does so, one can have a prosecution for corporate manslaughter, alternative charges under the Health and Safety at Work, etc. Act and the culpable director present in the dock on a section 37 prosecution, all rolled into one. That might go some way to answering his concern.
I believe that the hon. Gentleman is now trying to mirror the Minister’s approach and take the words out of our mouths. He knows full well that if we are not successful—I hope that we are—and the Minister, for his own reasons, cannot move to directors’ duties and penalties in this Bill, we have proposed changes to the Health and Safety at Work, etc. Act. In Committee, we discussed consensus over that direction.
We intend to push these concepts to the boundaries, and to push the Minister as far as we can to do the best that is possible in the Bill. If the Minister wishes us not to pursue the directors’ duties and the spectrum of penalties that we would like to see, I hope he will give us some reassurance that he will support us in trying to open a door—whether it be the Health and Safety at Work, etc. Act or any other relevant legislation—to allow us to achieve what we seek to achieve.
Is not one of the problems with the approach advocated by the hon. Member for Beaconsfield (Mr. Grieve) the fact that section 37 of the Act makes no provision for a custodial sentence? Perhaps it would be better to amend it to provide for such a sentence.
Far be it from me, as a humble trade unionist, to come between two learned gentlemen in this place, but my position—and that of those who support the new clauses and amendment that I tabled along with my hon. Friend the Member for Manchester, Central (Tony Lloyd) and others—has been clearly understood and consistent since Second Reading and our detailed discussions in Committee. We believe that the issue of duties and penalties has not been dealt with adequately in the Bill.
We welcome what the Minister has already said, but we wish to hear more about the other issues that I have raised. I hope that the Minister will be able to tell us what we want to hear.
The Chairman is probably quite used to being challenged over how amendments are selected, but I want to record my congratulations on how these new clauses and amendments were selected. There are technical arguments to be had over whether they conform with the Bill’s long title, but I am delighted that it was decided that they do, because I believe it is in the interests of parliamentary democracy and of the public for us to debate one of the most fundamental principles involved in the concept of corporate manslaughter and its operation.
Mention has been made of a number of the major tragedies of the 1980s. One of the most formative of those disasters for me was the sinking of the Herald of Free Enterprise, partly because, as an Opposition Front Bencher, I had some responsibility for merchant shipping at the time. It was an outrage that that vessel was allowed to sink.
Most of us here have probably been on ferries. Perhaps we have taken our children on holiday on them, and, as we know, the excitement of young kids going off on the ferry is part of the holiday package. For a ferry to go down in that way, with such an enormous loss of life, was not simply a casual mistake; it struck at the very heart of the question whether—not just in the context of merchant shipping, but in our industries and services generally—we operate a health and safety regime that guarantees that health and safety is at the centre of all that we do.
As my hon. Friend the Member for Aberdeen, North (Mr. Doran) said, the Bill’s main objective is not to bring people before the courts and ensure that more directors go to prison, although I would not be unhappy if individuals were brought before the courts. My hon. Friend the Member for Paisley and Renfrewshire, North (Jim Sheridan) made a similar point when he said that imposing a regime of financial prudence on directors does not necessarily mean that we want financial directors to appear in court.
What we are saying, in the context of company fines and especially—in the case of those of us with a background in the subject—in the context of health and safety, is that we want to create a culture in Britain and British companies in which health and safety is automatic and central to all that is done by every member of an organisation, including directors.
Does my hon. Friend agree that that is the core of the issue? Does not current legislation allow a large company to be fined a couple of hundred thousand pounds where its actions have led to the avoidable death of an individual? Is not it right that real justice should allow a court a spectrum of choices about what sentence should be passed?
That is an interesting concept, because I have not written it yet.
We want to ensure that the courts have a range of powers and penalties. More importantly, we want to ensure that not simply the prosecuting authorities but the authorities generally—the Health and Safety Commission, the Health and Safety Executive and others—have a range of powers that allow them to begin to look at the question of how to change the safety culture.
The reality of many of the famous disasters—the railway disasters, the Herald of Free Enterprise disaster—is that in the end no one suffered any individual penalty. In individual cases, whether the individual should be so penalised may always be an arguable point. The hon. Member for Beaconsfield (Mr. Grieve) is right to say, and I agree wholeheartedly, that there are circumstances where gross negligence by an individual in the corporate setting would lead to the charge of manslaughter under existing common law. That is not a matter of dispute; it is right and proper that that should be the case.
What we are talking about here, however, is whether, as part of driving forward safety, we need to introduce not simply the Bill, but new clauses 6 and 7, and indeed new clauses 1 and 4. The profound argument is that we need exactly that change, because we have not been able to prosecute either companies or, in practice, individuals through the route of the common crime of manslaughter. The public—this is why it is not a legal issue; it is about common sense—and the families most directly affected by those tragedies demand of Parliament that we introduce something better than the current law. It is in that context that I advance my argument today.
The test of the prosecution case of corporate manslaughter has been very high; it has been gross neglect on the part of companies. However, it has also been necessary to prove that there has been individual gross neglect by directors to trigger the laying of the corporate manslaughter charge. That chain of causality is almost entirely the wrong way round. The hon. Member for Beaconsfield and I will disagree on that, but we will be able to prove under the Bill that corporate manslaughter took place as a corporate event. If the gross neglect is by the corporate body, that of itself should lead to that body appearing before the court to face the charge of corporate manslaughter. That is right and proper.
Normally for an incorporated body, we look at the sanction of a fine, although it is appropriate to look at sanctions against directors of the kind that my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) mentioned. Disqualification of directors is a kind of corporate naming and shaming, although it is more specific than naming and shaming because it will prevent them from operating as directors elsewhere. It is appealing because, as we know, the former head of Railtrack is facing no sanction whatever for the catastrophes that Railtrack led individuals into. He is cheerfully ensconced elsewhere making a lot of money as a senior corporate officer of another company. That does not make sense to an awful lot of ordinary people. The idea of disqualification is a sensible way forward for those who are not caught in the stronger trap of individual liability of a custodial variety.
My hon. Friend has just made the point that I wish to make—that there is a set of individuals for whom disqualification will probably be a greater punishment than a custodial sentence. A custodial sentence might last for months, but for someone such as a FTSE 100 director the effect of disqualification will be much more severe, so we should not dismiss it as a light punishment if we can achieve it.
My right hon. Friend is correct: it might not be a light punishment, although even in the golf clubs of the home counties, while disqualification from being a company director might be thought quite severe, spending some months in prison might be considered an even more severe social sanction.
Our discussion highlights why the courts should have a range of options. Ironically, in some circumstances—for former gangsters gone honest, for example—the penalty of a custodial sentence might not be found too troubling, but we might instead find that the Al Capone route of disqualification from serving as a director is a very effective penalty. Therefore, I support the concept that my right hon. Friend puts forward in his new clause.
There are several reasons why it is necessary to have individual liability. First among them is that, in the end, this is not about vengeance; it is about what the public expect for those who are grossly negligent in a way that leads to the death of innocent people. [Interruption.] As my hon. Friend the Member for Eccles reminds me, such cases almost always involve avoidable death; that is why we are talking about gross neglect. Those deaths are not just unfortunate—they are not deaths that just unhappily happen. They are deaths that occur because there is gross neglect on the part of people within an organisation. When that happens, there is a strong expectation that those most directly responsible should bear specific and direct cost for that, and in many cases the most appropriate direct cost is imprisonment.
Interestingly, there is probably not a huge gap between Members’ views on this matter—even between those of the hon. Member for Beaconsfield and those of Members who argue for custodial sentences. We are talking about what the driver should be for such custodial sentences. In fact, that is the only point of difference dividing Members involved in the debate. I should add to that statement: that is subject to what my hon. Friend the Minister says, because he is the only Member who has not yet spoken. However, without wishing to anticipate his comments, I know what his views are and his position is probably very similar to that of the hon. Member for Beaconsfield—so we have another Front-Bench conspiracy.
We are not divided on this issue over a matter of absolute principle. Every Member agrees that where there is gross neglect by individuals, corporations or non-incorporated bodies—I am anticipating future amendments and matters that we might debate later—the public demand that certain actions be taken, and we in this Parliament ought to ensure that we provide the mechanisms whereby that demand is met.
The demand is that those responsible for such events should receive the most severe penalty that our society offers, which is imprisonment. Therefore, it is right and proper that for the most extreme cases we try to weave in the normalcy of having the most extreme penalties for those culpable of causing death by gross negligence, reckless action and so forth. Therefore, this first group of amendments drives at the very heart of what we are trying to achieve in terms of changing the culture. It also perhaps drives at the very heart of the differences between the various mechanisms by which we might achieve that.
I should say to the hon. Member for Beaconsfield that there is a difficulty with quite a lot of health and safety at work legislation. Although it was suggested earlier—I think to my hon. Friend the Member for Eccles—that section 37 might be a good thing to link with the charge of corporate manslaughter, as my hon. Friend the Member for Hendon (Mr. Dismore) pointed out, the problem with section 37 is that it cannot carry custodial sentences.
We could look into amending that, but I hope we all accept what might happen if I were to say to my hon. Friend the Minister, “Please can we begin to go through the rather tortuous parliamentary route of saying in principle that we would want to couple section 37 of the Health and Safety at Work, etc. Act 1974 to the corporate manslaughter legislation and then go on to having interdepartmental negotiations in keeping with all our joined-up government.” Perhaps after I have been long retired from Parliament, I might witness our successors beginning to debate this matter seriously.
To make the position clear, my suggestion about the link-up was simply that it would allow the entire issue to be brought before one court if there was any doubt about it. That would go some way toward meeting the need for a director who was found culpable of a health and safety at work offence to be present in court at the same time that the conviction for corporate manslaughter might be recorded against the corporation. That could have a significant impact in terms of adverse publicity, for example. However, I cannot support turning the 1974 Act into an offence that attracts imprisonment for individuals: it is about carelessness, not gross negligence, and in my view to do so would be philosophically wrong. Similarly, and coming back to the old theme, if somebody is culpable of gross negligence, let them be prosecuted and charged for manslaughter under the existing law.
That was a very helpful intervention, in that it brings me to my final and central point, which is precisely the one on which we disagree.
The fundamental problem with the existing law is that although there are circumstances in which those responsible for the most serious acts of gross neglect—those that lead to the death of others—can be charged under existing law, that simply does not happen in reality. I want the kind of regime with which my hon. Friend the Member for Paisley and Renfrewshire, North drew a comparison, in terms of directors’ financial duties. We know that directors who are grossly negligent in their handling of corporate finances can in some circumstances be brought before the courts, and if they are found guilty they can rightly end up with custodial sentences. It is not too much to demand that those responsible for an organisation’s health and safety culture should be in the same position.
If we are going to alter the culture, it is not enough to say that we will adopt such an approach where we can demonstrate that there is individual recklessness. There was individual recklessness in the case of the sinking of the Herald of Free Enterprise, but the recklessness of the most senior controlling minds at P&O at that time was that they took no steps whatever to create a safe and healthy working environment. They were simply indifferent to the health and safety of their own employees, the customers and the public. That is why, in the end, the existing law—even the 1974 Act and other legislation—is not adequate for the job that we want it to do.
In the case of the Herald of Free Enterprise, there are extra-territoriality issues, but that is a different matter. Sticking simply to what happened, prosecution would almost certainly have been impossible under existing law. The controlling minds—those who allowed sloppiness and who did not care—would still have escaped the full impact of the law, because they would not have been indictable under the charge of manslaughter, or even under parts of the 1974 Act. We must change that, because it was obvious to anybody that those controlling minds were responsible for all those deaths. Because they failed to make the safety case in that company, they should have been indictable.
The way to change the health and safety culture is to tell those at the very top of such organisations that they have an inescapable health and safety duty, and that gross breach of that duty—not simply failing to demonstrate that there was a change in individual circumstances, but failing to make the safety case, thereby allowing a regime that did not prevent such deaths—will lead, of itself, under corporate manslaughter legislation, to their being culpable and finding themselves before the courts.
Under the regime that new clauses 6 and 7 would put in place—I will not go into the technical nuances of the latter—we would begin to impact on the health and safety culture. As a result, we would no longer see the corporate manslaughters and deaths of the innocent that have been such a feature of British society, and such a blot on our workplaces and the places where our public travel.
Like my hon. Friends the Members for Manchester, Central (Tony Lloyd) and for Eccles (Ian Stewart), I, too, support new clauses 6 and 7. Today’s theme, both in this debate and in the earlier statement, is deterrence and what constitutes an effective deterrent. We are not talking about how we can put more people into jail, but about how we can prevent disasters from occurring and people from losing their lives. As we mentioned in Committee, and has been said today, we need an appropriate range of penalties available to the courts if we are effectively to address the issue of deterrence.
We have made much progress by introducing an offence of corporate manslaughter, or culpable homicide as it will be called in Scots law, but we need to ensure that it works on the ground. Everyone who has spoken today has referred to the complexity of many of the cases in which such incidents occur. It is in light of those complexities, the length of time that it takes to build up a prosecution case and the very difficult decisions that have to be made by prosecutors—often on a narrow point about whether they have sufficient evidence to justify a prosecution in terms of the statutory offence or common law offences—that we begin to realise the difficulty of ensuring that we have sufficient deterrence.
Other hon. Members have mentioned the common law offence of manslaughter. I shall address the Scottish legal position on the definition of culpable homicide—a common law offence—because it is materially different, and it is more difficult in those complex cases to mount a successful individual prosecution in common law. We need to look back at the different definitions in both the English and the Scottish courts to realise how wide the chasm is.
In the Adomako case in 1997, the leading case in English law, the former Lord Chancellor, Lord Mackay of Clashfern—ironically, as he is an eminent member of the Scottish Bar—defined manslaughter as follows:
“On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died.”
However, the legal definition in Scotland is radically different, as I pointed out in Committee. The leading case is that involving Transco following the Larkhall explosion, which killed a family as a result of negligence. Originally, the prosecuting authorities brought a case under the common law offence of culpable homicide against the company. That prosecution failed and the defendants were subsequently convicted under statute. In that case, Lord Osborne commented on the common law offence of culpable homicide:
“However it is quite clear to me that the two definitions are fundamentally different. The Scottish definition contains no counterpart to that…”—
the English definition—
“As I would see it, there is no reliance on elements of the Scottish civil law of delict…Furthermore the Scottish formulation implies clearly, to my mind, a certain state of mind on the part of the perpetrator, that is to say, mens rea, in accordance with the basic principles of Scots criminal law.”
The result is that a very high test of recklessness is applied in cases of culpable homicide in Scots law. It is therefore difficult to perceive when a company director in Scotland would be tried for an offence that would involve a custodial sentence. That would be much more difficult to achieve than in England, and that very point was made by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham). We need proper options for secondary liability if we are to provide adequate deterrence.
When my right hon. Friend’s Committee scrutinised the draft Bill, their examination applied, unfortunately, only to England and Wales; there has been no such detailed examination of Scots law. There has been an inquiry, instructed by the Scottish Executive, whose report concluded that as such matters applied to corporations they were reserved and, accordingly, we are now dealing with them at Westminster. However, an unsatisfactory position has resulted in that there is a much higher test in the common law offence than in the definition that applies in the Bill.
Under the Bill, there will not be equivalence in the legal position in Scotland, in terms of who perpetrates such offences—whether individuals or a corporation. I have spoken to a number of people in the Scottish Parliament and it is clear that the weight of business on their shoulders is considerable, so a change in the law of culpable homicide in Scotland is unlikely in the short to medium term. I hope that that day will come, but it is important that the Scottish Executive take time to consider the change, and I appreciate the real burden for them of legislative proposals at present. In Committee, I referred to the Sentencing Commission. It is reporting and I hope that its members will take the opportunity to consider the discrepancy that will result from the Bill.
My hon. Friend the Member for Manchester, Central made a good point about the controlling-mind question, which in part illustrates the distinction between the definition in new clause 6 and that which applies in the common law offence. The statutory definition does not require a controlling mind, but in common law cases—certainly in Scotland—not only gross recklessness but the controlling-mind principle must be established. That is a high test to achieve, which is why in practice few cases are taken at common law.
There is a need for an offence where the penalty is higher than simply imposing a fine, but lower than that which applies to a common law offence. There is a place for such a distinction and new clause 6 limits the level of the custodial sentence to six months. That is a serious marker of the nature of the offence, but it does not go as far as for a common law offence—certainly by a long mark in Scotland. The sanction that we are establishing by creating the offence of corporate homicide needs to be reflected in the secondary penalties that we hope the Government will consider imposing under the Bill.
We have made some progress on naming and shaming and I was pleased to hear what the Minister said today. It is important to keep a record in the companies register. Given that larger companies, in particular, are trying to attract investment and contracts, a statement of their liability and prosecution under such an offence would be a serious warning to potential investors and people who wanted to do business with them. If the circumstances of companies’ operations were known, many people might prefer not to do business with them.
In Committee, I mentioned a company in my constituency that was successfully convicted of the manufacture of weapons of torture—electric batons that it sold in the middle east—but there was no naming and shaming in the companies register. Many major household names were clients of that company and did business with it, yet the prosecution was not noted in the register. Doing that would have a salutary effect, even more so when a company had caused death by negligence.
I am mindful that we have a lot to get through, but my hon. Friend makes a key point about naming and shaming. It is important that we change the culture, and naming and shaming will go a long way towards that, certainly in the way that companies market themselves. My hon. Friend’s point about the company in her constituency is echoed in other cases: companies are prosecuted and convicted yet continue to make all sorts of claims about products they sell that were involved in the conviction. I give my hon. Friend a commitment that we are genuinely looking at naming and shaming.
I thank my hon. Friend for his assurances. I know that he tries to be as productive as possible and that he listened to our comments in Committee on that issue.
Disqualification from company directorships is another important issue. In Committee, the hon. Member for Hornchurch (James Brokenshire) referred to the complexity of companies nowadays; many of them have holding or offshore companies, and the nature of corporations is changing rapidly and becoming ever more complex. As my hon. Friend the Member for Manchester, Central said, disqualification from being a company director could be as much of a penalty as a custodial sentence, because it would affect the person’s livelihood—their ability to make profits and to make contracts would be seriously affected. Their disqualification would also have an effect on the company itself.
We need to make sure that the range of penalties available to the courts will provide sufficient deterrents in practice. We should realise how difficult it is for any prosecutor when considering whether to proceed with a charge, for the common-law offence of murder or for culpable homicide. Determining whether the evidence is sufficient is difficult, but there are cases where negligence falls just short of a common-law offence—which is easier in Scotland—yet is of such seriousness and consequence to victims and their families that it is appropriate for the court to have the option of imposing a custodial sentence.
It is interesting to note the behaviour of FTSE 100 companies at present, given the threat of legal action in America that could result in custodial sentences. The latest case involves banking relationships in Iran. Although I do not agree with the American authorities about such actions, when people start arresting directors and talking about custodial sentences—as happened recently in respect of online gambling—it is amazing how quickly behaviour changes. When matters affect the top of the board of directors, each director manages to be extremely well informed. We need to be equally decisive in determining penalties for health and safety offences that involve people’s lives and welfare.
My hon. Friend raises some interesting points. Although the cases to which she refers certainly concentrated minds, is there any evidence that people who saw the opportunity to make huge profits were deterred from taking on directorships by the fact that custodial sentences had been given, or did they simply raise their game as we might have expected?
My hon. Friend makes an interesting point. Companies changed their practices rapidly when people were arrested. I was reading in the weekend papers about the banking situation in Iran; urgent discussions are being held with major bankers, some of whom have already withdrawn from that country. The threat of a custodial sentence can be a strong deterrent and can change behaviour; it can concentrate minds in small, medium and large companies. I do not necessarily agree about the basis for that legislation, but a custodial sentence can be an effective deterrent and can change corporate behaviour.
Most companies try hard on health and safety, but we all know that there is a small percentage of rogue companies. We probably all have one in our constituencies and can point to cases where a company’s behaviour falls very much below what we would normally expect. We need to address such behaviour fully. That also helps to keep health and safety issues at the front of the minds of other companies that may think that on the whole they do a good job on health and safety.
I recently travelled around with a health inspector for a day. We visited one factory that certainly seemed slack on a number of issues. It is not as if the company had not thought about health and safety; it just had not thought about it hard or systematically enough. It is often the systematic failures that build up over a period of time. In the Transco case, it was not a matter of a bad decision taken one night leading to an explosion the next morning. Rather, it occurred as a result of a series of decisions over a long period, the cumulative effect of which was utterly disastrous.
We need to attack the rogue elements in business and attack sloppiness. We need a range of deterrents that adequately address all those particular concerns. At the end of the day, people’s lives are at stake. As the TUC said in its submission, it is not organisations that kill people, but the actions of the people in those organisations that result in death. That has to be the kernel of our decision today.
I had not intended to contribute to this part of the debate, but I believe that our discussion has been extremely important and it has helped me to focus on what I think are the key issues. I listened particularly to the contribution of the hon. Member for Beaconsfield (Mr. Grieve), but there is one fundamental weakness in his argument, as we would not be here today unless the common law had failed. The whole point of the Bill and statute generally is to fill the gaps or remedy the defects of the common law.
We need to reflect on the history of why we are here now and recall the disasters of the 1980s and 1990s—King’s Cross, the Herald of Free Enterprise, Bradford, Ladbroke Grove, Hatfield, Piper Alpha; I just scribbled down a few of the names. There was a common theme in every one of those cases: the failure to invest in health and safety, whether it be through technology, training, maintenance or whatever.
The case I know best is the Piper Alpha disaster, in which 167 men were killed offshore. Anyone looking at the report of Lord Cullen would see that it recorded negligence on that platform on a grand scale. If that operation had been the responsibility of and carried out by a single individual, there would have been a prosecution. However, we face a situation in our corporate culture today that makes it easy for people to hide behind the cloak of the company in respect of financial decisions to cut maintenance expenditure or a refusal to invest in safety training or whatever. My support, enthusiasm and campaigning for the Bill is intended to get behind that cloak. I firmly believe, as I said earlier, that unless we have some form of personal liability, we will fail. To be honest, I do not really care whether it is done through imprisonment or through the companies register, as suggested earlier by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham).
To be clear, the idea put forward by the right hon. Member for Southampton, Itchen (Mr. Denham) is achievable by the mechanism of section 37. It may require some tweaking—the Minister may tell me that it does not require very much tweaking—of the rules of procedure for bringing prosecutions. It would be possible to end trials with the actual disqualifications of directors. I firmly believe that that is feasible and I would have no objection to it at all. However, it requires a breach of section 37 rather than some half-way house between that and manslaughter.
I accept the hon. Gentleman’s point, but the fundamental point for me, having worked with the survivors and relatives of victims of a major disaster, is that those people feel very strongly that the directors of the company responsible for what happened to them have never been properly punished. Criminal law today, quite rightly, gives pride of place to the views, feelings and consequences for victims, but we are not achieving that if we fail to include individual liability in the Bill. It is important to place responsibility directly on directors to take safety much more seriously.
The best companies have a safety strategy and a safety assessment is made in respect of every decision that the company makes. I have sat in on board and other company meetings and seen that happen. It is important to say that we want to see that culture adopted throughout every company in the country. They should be forced to do that; and they are likely to do so only if they are forced.
Reflecting on the marriage of section 37 with the Bill rather than the approach favoured by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham), does my hon. Friend the Member for Aberdeen, North (Mr. Doran) agree that where the prosecuting authorities—the Crown Prosecution Service in England—are involved, there is a fairly good chance that they would look into the substantive propositions to disqualify directors as part of the prosecution package? Frankly, the problem with the Health and Safety Executive is that it is often quite reluctant to move down a penal route; it prefers a more conciliatory route. That may be right in some circumstances, but there is a genuine cultural problem, which is why I urge my hon. Friend to resist going down the section 37 route.
That is an important point and I understand how the Health and Safety Executive operates. Its relationship with employers is important, but it does not take us away from the point that we need to find a way of applying pressure and enforcing the principle that a safety culture is essential inside every company. My hon. Friend the Member for Glasgow, North (Ann McKechin) made a very important point about the response of individual companies to gambling. I recall a similar type of experience many years ago when one of my constituents was imprisoned in America, even though what he did from the UK—trading with Libya—was legitimate in the UK. As soon as he set foot in America, he was arrested, convicted and imprisoned. That changed the culture of a lot of companies that operated in this country: they did not go to Libya any more. They got the message, even though it was perfectly legitimate in the UK for them to deal with Libya.
We live in a financial culture nowadays in which it is commonplace for directors to reward themselves even for failure in their companies. If we expect them to introduce the safety culture without having the sort of incentives that have been discussed, I believe that we are fooling ourselves. As I said in my earlier intervention on the hon. Member for Beaconsfield, I genuinely do not want to see prosecutions. If we have a string of prosecutions, we will have failed. It has to be about changing the safety culture, but unless we have the right tools and the right pressure, we will fail.
The hon. Gentleman started his remarks by saying that we would not be discussing the Bill if the existing law had worked well. In that, he is, of course, right, but does he accept that what went wrong in the past was the fact that it was difficult to establish the responsibility of companies because of the controlling mind principle? That was the problem that the Bill was designed to deal with, and I believe that it is doing it rather well. Is not the danger of the approach favoured by the hon. Gentleman and other Labour Members that we forget that a criminal sanction has to be applied to an individual and that the standard of proof to which those individual must be held ought properly to be very high; otherwise, we will find ourselves in very dangerous territory? Is not the hon. Gentleman’s approach effectively addressing the wrong problem with the wrong solution?
If the hon. Gentleman assures me that he is prepared to read it, I will send him a copy of the Cullen report. If he looked at the negligence of the company, Occidental, that was responsible for the tragedy, he would see a trail of responsibility. The hon. Gentleman is right that the fault could not be fixed on any one individual. I understand that; it is part of the problem of getting underneath the processes. I do not know whether even including criminal liability in the Bill would succeed in that respect, but I am looking for an incentive. We may not be able to target the directing mind, but we will be able to develop principles from the legislation that will encourage what I want to see—the development of a safety culture. I agree that the highest standards of proof should be applied, but when a company decides to slash its maintenance budget and the decision is taken without any regard to the consequences, that, to me, is a significant sign of the culture within that company.
Does my hon. Friend agree that Labour Members have been attempting to establish that there is a corporate aspect—it is now established in the Bill—and that a full spectrum of penalties should be available to the courts, so that they can decide the impact or the implication of any action of a significant manager in such circumstances? I have no legal background, but does he agree that we need to enshrine all that in a single piece of legislation, so that it can be more easily presented at court than if those involved had to consider a number of pieces of legislation? If so, does he not also agree that, if we cannot to do that in the Bill—I hope that we can—we must do so in another piece of legislation?
I think that I agree with my hon. Friend, but I am not sure. However, I think that the point that he is making is absolutely right, and it is a fairly simple one: we either introduce legislation to enforce a safety culture that meets all our aspirations, or we leave loopholes and gaps. I do not suggest that there are loopholes and gaps in the Bill, but there is a glaring omission in respect of the individual responsibility of directors. Given every Labour Member’s contribution that I have heard at every stage of the Bill’s progress, I believe that that is certainly something that we want to address.
At half-past 4, I was speaking for the Children’s Society, and I apologise for not being here when new clause 1 was moved. When I was chairman of the Church of England Children’s Society in 1983, one of the children in our care died avoidably. We did not know at the time that it was avoidable, but we do now. I suspect that that is not the kind of issue covered by the Bill, which relates far more to the Piper Alpha example, where the exact train of circumstances cannot be found.
My knowledge of such things comes, first, from working in industrial relations and personnel at the British Steel Corporation in the late 1960s. In 1984, I became the Minister at the Department of Employment responsible for the Health and Safety Commission, and I therefore indirectly had an interest in the Health and Safety Executive. My last commercial job before first coming to the House of Commons was running a small electrical contracting business that put neon lights outside cinemas and theatres in the west end. That involved high voltage electricity, heights, working in curious circumstances and trying to ensure that people were both trained and knew when they could say no.
The point about trying to fill whatever gap there is in relation to corporate manslaughter and corporate homicide is that people ought to know when things are going wrong, and if they do not know and someone else notices what is wrong, the people in charge ought to pay a great deal of attention when they are told. To my mind, that gap is worth filling.
I, too, have been out with health and safety inspectors. I reflect now on the welcome that they got in garment-making workshops in the midlands and the east end of London. About 90 per cent. of the time, those inspectors give advice. Sometimes people do not have a choice about whether to take that advice—it must be taken—but giving advice is normally better than prosecuting, especially with smaller firms. If someone went into a garment shop where the boiler had not been checked for three years and where there was a chain on the fire exit and people would be trapped if there was a fire near the entrance in the way that people have been trapped in night clubs, for example, when emergency exits have been blocked, there clearly would not just be a health and safety prosecution but a more major direct prosecution.
Sometimes, we can look back and not quite understand what happened. Let us take, for example, the King’s Cross disaster. I was present when people were still being brought out alive and dead. The accumulation of litter was the problem. It was similar to the Bradford stadium fire. Afterwards, that was dealt with by spending £400 million on removing every wooden escalator tread in London. That saved no lives at all. An enormous amount of money was spent for no real purpose.
We must ensure that we get people to take practical measures, and I rely on the greatest strength of the British approach to health and safety—the tripartite approach. When I was a Minister, I had to go to Europe to resist parts of the social charter and all the rest of it, which those involved were trying to manipulate the rules to introduce. The reason why I resisted it was that we already had a tripartite structure that worked—not perfectly, but to the extent that our levels of death and serious injury, although too high, were the lowest on most comparative league tables. We involved the unions and their members and those who were not members; we involved the companies; and, in effect, we involved outside experts.
I have been listening to most of the debate and my mind has been changing on a number of the issues. If it were a longer debate or if I had had the chance to serve on the Committee, we could have considered some of the issues raised by Liberty about the gap in respect of unincorporated organisations and partnerships. However, those are the sort of things on which I do not have a clear view.
I will not repeat the issues that I raised when considering the Charities Bill, but I hope that the provisions passed in relation to this group of amendments—this is the kernel of the thing; the rest is detail—will not make people fear prosecution. They ought to understand that it might follow, and as has been illustrated by many of the contributions made today, they ought to try to build on what works and implement it. If they have not noticed a problem themselves, they should take it seriously when someone tells them about it.
Does the hon. Gentleman agree that, if the thrust of all our contributions is about deterrence and if the debate revolves around the great big corporations—the Piper Alpha issues and so on—we can miss the relevance of the avoidable loss of an individual life? Does he also agree that, when there is no deterrence of any note, corporations will take decisions to try to save money and time that could render a situation dangerous perhaps for a large group of people or an individual—for example, the instruction to leave a guard off a machine?
In part, yes, but that would be covered anyway. There is no difficulty in bringing a prosecution for that kind of event.
I do not want to extend the issue—many different debates need to take place this evening—but I shall give an example that worries me. One of my brothers-in-law used to run trains to Edinburgh. We used to argue that people fell from moving trains because they were drunk. So we said, “Take the handles off the inside of the trains.” They then used to open the windows and open the doors with the handles on the outside. We then introduced regulations to ensure that bolts were fitted so that train doors could not be opened when trains were moving. I do not know at what point not taking such action becomes gross negligence, but we have a constantly changing problem. I do not believe strongly in deterrence; I believe in it occasionally. I believe most strongly in trying to get people to set standards. If they will not set the standards themselves, they should accept the standards that are laid down by others and be encouraged to adopt them.
I am grateful to hon. Members on both sides of the House for their contributions. I said on Second Reading and in Committee that the motivation of all right hon. and hon. Members is to try to find a workable solution on an issue about which we all care passionately. We all know of examples from our own constituencies, and a number of examples have been mentioned in the debate.
I understand the scepticism that may exist. I do not accuse him of that, but my right hon. Friend the Member for Southampton, Itchen (Mr. Denham), who is the Chairman of the Home Affairs Committee, talked about discussing the issue more than 12 months ago. In fact, such issues have been around for over nine years, and we have been trying to address them. As the hon. Member for Worthing, West (Peter Bottomley) said, it is important that we get this right and change the culture in a practical way.
As we consider the various new clauses that are relevant to the debate, we need to consider the attitude of some of the organisations and bodies that are responsible for implementing the legislation—the Health and Safety Commission and the inspectors, the police and the Crown Prosecution Service.
In meetings that I have had—not only today, but in the past—with the relatives of victims, and most notably Families Against Corporate Killers, I have been struck by what they say about how they were treated as individuals and individual families. They felt deprived of justice and that they were not supported as individuals. Listening to those families, it struck me as a Home Office Minister responsible for considering road traffic accidents and related issues that families who are victims of road traffic accidents feel that they are dealt with differently from the victims of a criminal violent act. We all saw the outcome of the trial for the murder of the lawyer outside his home, and how people were horrified about that and how the system dealt with that. I want the same to apply to corporate killing, where it can be avoided. I also want to make sure that victims and their families are treated responsibly.
I fully understand the emotion that is involved, but it is important that we do not let emotion run away with us and that we make sure that what we try to achieve will be workable and meets requirements. People have come at the issue as lawyers, individual Members of the House and trade unionists. Some of the language that has been used is not appropriate or helpful. What is important is that we give the issue of individual liability a real airing, and we have done that this afternoon, as we did in Committee.
The driving force behind the Bill is the fact that the current law of corporate manslaughter is based on too narrow a definition of corporate liability. The law works reasonably well for small organisations, but it does not reflect the reality of decision making in large or complex organisations, where failures in the management chain can rarely be laid at the door of a senior individual manager. It is important to understand that point, because it underpins the Government’s approach. I want to give an outline of the failings that led up to the sinking of the Herald of Free Enterprise, an issue that my hon. Friend the Member for Manchester, Central (Tony Lloyd) raised.
This is a summary prepared by the Law Commission:
“The ferry set sail from Zeebrugge inner harbour and capsized four minutes after crossing the outer mole, with the loss of 150 passengers and 38 crew members. The immediate cause of the capsize was that the ferry had set sail with her inner and outer bow doors open. The responsibility for shutting the doors lay with the assistant bosun, who had fallen asleep in his cabin, thereby missing the ‘Harbour Stations’ call and failing to shut the doors. The Chief Officer was under a duty as loading officer of the G deck to ensure that the bow doors were closed, but he interpreted this as a duty to ensure that the assistant bosun was at the controls. Subsequently, the report of the inquiry by Mr Justice Sheen into the disaster (‘the Sheen Report’) said of the Chief Officer’s failure to ensure that the doors were closed that, of all the many faults which combined to lead directly or indirectly to this tragic disaster, his was the most immediate.”
That is perhaps a very germane point. If the focus is to be on individual responsibility, we need to be careful about shifting the finger of blame from the organisation to the front-line position.
The report continues:
“The Chief Officer could in theory have remained on the G deck until the doors were closed before going to his harbour station on the bridge. However, although this would have taken less than three minutes, loading officers always felt under such pressure to leave the berth immediately that this was not done.
“The Master of the ferry on the day in question was responsible for the safety of the ship and those on board. The inquiry therefore found that in setting out to sea with the doors open he was responsible for the loss of the ship. The Master, however, had followed the system approved by the Senior Master, and no reference was made in the company’s ‘Ship’s Standing Orders’ to the closing of the doors. Moreover, this was not the first occasion on which the company’s ships had gone to sea with doors open, and the management had not acted upon reports of the earlier incidents.
“The Senior Master’s functions included the function of acting as co-ordinator between all the Masters who commanded the Herald and their officers, in order to achieve uniformity in the practices adopted on board by the different crews. He failed to enforce such orders as had been issued, and also failed to issue orders relating to the closing of the bow doors on G deck. The Sheen Report found that he ‘should have introduced a fail-safe system’.”
There were therefore demonstrably a number of serious failings in the way in which the company set about managing the sailing of its ships. But these were not just failures on board. The Sheen report picks up the story:
“A full investigation into the circumstances of the disaster leads inexorably to the conclusion that the underlying or cardinal faults lay higher up in the Company”
than the master, the chief officer, the assistant bosun and the senior master. The report continues:
“The Board of Directors did not appreciate their responsibility for the safe management of their ships. They did not apply their minds to the question: What orders should be given for the safety of our ships? The directors did not have any proper comprehension of what their duties were. There appears to have been a lack of thought about the way in which the Herald ought to have been organised for the Dover/Zeebrugge run. All concerned in management, from the members of the Board of Directors down to the junior superintendents, were guilty of fault in that all must be regarded as sharing responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness…The failure on the part of the shore management to give proper and clear directions was a contributory cause of the disaster.”
However, in the same circumstances, the judge directed the jury that, as a matter of law, there was no evidence on which they could properly convict the individuals concerned of manslaughter.
There are two points to make. One can be made quite quickly, but it is worth dwelling on. The people who came in for the most blame were, in corporate terms, relatively junior, although the bosun and the master are not so junior. They were operating a system that was enshrined by customer practice. It happened to be astonishingly dangerous but, nevertheless, it was enshrined by customer practice, because there was no higher safety case. The other thing that came out in the report was the pressure—one could say for profit, but, in any case, to manage corporate objectives and turn the ships round with no loss of time—was so intense that the safety case was not able to be made relative to those other objectives. That was what went wrong and that was why there was not the safety culture. Those other cultures drove the safety culture out.
I am grateful for that. It is good of my hon. Friend to agree with me.
It is important to emphasise the Government’s thoughts in terms of the corporate nature of the offence. A similar situation arose in the Hatfield case. Again, the trial judge, Mr. Justice Mackay, ruled that there was insufficient evidence for prosecutions to be pursued against individuals. However, in sentencing Balfour Beatty for breaches of health and safety legislation, he commented:
“I have to say that I regard the failures of Balfour Beatty...as the worst example of sustained, industrial negligence in a high risk industry that I have seen.”
Those two examples make a compelling case for saying that it is not enough to rely on individual liability to address corporate failures. There is a need for some wider form of liability for holding companies to account. The Bill addresses that problem by shifting the focus—
This is a Second Reading speech.
It goes to the heart of what we are trying to achieve. The hon. Gentleman did not have the benefit of being in Committee. It is important to put on the record the driving force behind what we are trying to achieve. The Bill is about shifting the focus of corporate liability away from the acts and omissions of individuals and basing it instead on gross failures in the management and organisation of activities. In future, juries will be able to consider the overall picture of how an organisation’s activities were managed or organised, instead of focusing on the actions of one individual.
I think that my hon. Friend is suggesting that if a case such as the Herald of Free Enterprise were to happen now, a successful prosecution might be more likely. I do not wish to pre-empt a later debate, but has he considered the thrust of my amendment No. 11 on jurisdiction? If the vessel in question was foreign flagged, which is frequently the case, such a prosecution would still not be possible under the Bill.
I am grateful to my hon. Friend. If we get the opportunity to discuss amendment No. 11, I shall give him my response.
I am trying to make the important point, albeit laboriously, that the Government’s motivation is to ensure that this is not just about holding individuals to account. Individual criminal liability must rest on the individual conduct or omissions of that person. As the law stands, individuals can be convicted of gross negligence manslaughter, which has a maximum sentence of life imprisonment, if, by their own acts or omissions, they cause a person’s death. The new offence does not alter that. Individuals can also be convicted of a range of health and safety offences, which also carry the possibility of imprisonment for certain offences in very serious cases.
We are interested in widening the range of offences under health and safety legislation for which imprisonment is available, and would offer our support to any hon. Member who was successful in the private Member’s ballot and wished to take that forward. The Department for Work and Pensions has declared its intention to support an opportunity to make section 37 amendments. I hope that the discussions that my hon. Friends the Members for Manchester, Central and for—
I want to press the Minister on an important point. It would clearly be possible to prosecute a company for corporate manslaughter and at the same time for breaches of the 1974 Act, and to have a director in the dock for a breach of section 37. However, would the jury be required to deliver separate verdicts? As he will be aware, unless there is a conviction for a breach of the 1974 Act, there cannot be a breach of section 37.
This is a more than academic issue, because in the event of a conviction for corporate manslaughter the judge would not normally ask for a verdict against the company for breaches of the 1974 Act. The matter might require attention. I might be wrong, but I flag it up to the Minister.
I am grateful for that intervention. I was trying to remember the constituency of my hon. Friend the Member for Eccles (Ian Stewart).
The hon. Member for Beaconsfield (Mr. Grieve) makes a pertinent point about taking the offences at the same time. I have some sympathy with it and do not see a problem with what he suggests. He is right on the procedural point. I hope that the House acknowledges my commitment to look at this further to see what we could do procedurally to improve the situation so that we do not get into confusion. I see no problem with things being taken alongside each other.
I will, I hope, assist my hon. Friend towards the end of my contribution by rounding off my view on each of the new clauses and amendments by stating what we will try to do.
The aim of the group of amendments is to redefine the circumstances in which individuals will be guilty of an offence in the first place, or will be liable to some sanction. In our view, new clause 1 would lower the threshold for convicting a person of an offence of homicide by a very substantial degree, as has been mentioned. Under the proposal an individual could be convicted of corporate manslaughter and sent to prison for a term of up to a life sentence on the grounds of a mere contribution to the corporate offence. The new offence is intended to be set at the high threshold of gross negligence to ensure that it is positioned as a very serious offence. It would be counter to that aim if convictions were available for very low-level offending. It would be odd generally to make it possible for another person to be convicted of the same offence at such a different and lower threshold.
The measure would mean that a person could be guilty of manslaughter on the basis of not gross negligence—or even negligence—but any contribution made. It is hard to see how a senior manager could have failed to have contributed in some way to a serious failure in the way in which his organisation was being run. The proposal runs the risk of creating guilt by association.
New clause 1 would also represent a significant extension of criminal law to allow for imprisonment in such wide circumstances. The House and the other place considered at some length during the passage of the recent Road Safety Act 2006 the proposition that the law should provide for imprisonment on the basis of negligence. We considered that such a measure would be right in those circumstances, but this proposal would go substantially beyond that.
New clause 6 appears to anticipate that objection by providing for a threshold of gross breach and a maximum penalty of six months’ imprisonment. I recognise the genuine efforts of my hon. Friend the Member for Eccles to find ways of extending the law in ways that the Government might be prepared to accept, but a person can already be convicted of manslaughter for the gross breach of their duty of care, and, again, could be liable to a penalty of life imprisonment. I am not convinced that the way in which the new clause is drafted would assist in bringing any new prosecutions.
New clause 4 is an attempt to tackle the problem in a different way by making provision for disqualification. This is an area in which the Government have considered the possibility of further proposals. The law already provides for a director to be disqualified when they are convicted as an individual of certain offences, including health and safety offences.
It is true that there have been relatively few disqualifications linked to health and safety convictions. The Health and Safety Executive has recognised that more could be done to remind courts of their disqualification powers. As I have said, revised guidance was issued to the executive’s inspectors in May, stating:
“In all cases where an individual is prosecuted for an indictable offence, where the offence is in connection with the management of a company, the court should be reminded that it has the power to disqualify under section 2(1) of the Company Directors Disqualification Act 1986.”
Will the Minister say what discussions his Department has had with the Scottish Executive on sentencing, particularly in relation to potential individual liability for directors? I mentioned that there is quite a distinction in Scots law and that there is a much different test on the common law offence. Have there been any discussions on that point?
I assure my hon. Friend that discussions have taken place with the Scottish Executive. Indeed, I met the Scottish Minister for Justice to discuss the Bill last week. Discussions are taking place about the likely impact in Scotland, given its different legislation.
My hon. Friend has referred to the guidance that was issued earlier this year. Will he clarify something? In order for a director to be disqualified in the way that he has highlighted, would the individual director have to be convicted of an offence, and if so, which offence would that be? Secondly, if the company was being considered, would it fall under health and safety legislation or corporate manslaughter legislation? Does he accept that for many of the relatives of victims the fact that somebody is disqualified as a consequence of the company being convicted of corporate manslaughter is key to illustrating that justice is being done? It might be possible to find a roundabout, back-door route that would lead to disqualification, but that would not be the same.
I accept what my right hon. Friend is saying, and hope to touch on that point. The thinking is being developed. I had an opportunity in my previous role in the Department of Trade and Industry to examine the Company Law Reform Bill, as was. We could have put a view about directors’ responsibilities and reasonableness, and of what is expected of a director, in that Bill—the health and safety connection could have been made. My right hon. Friend will know that the route through the DTI is one whereby directors are disqualified on a regular basis for breaches of appropriateness in their operation of individual companies.
On 13 October at Croydon Crown court, Christopher O’Mahoney was disqualified from being a director of a limited company for two years under the Company Directors Disqualification Act 1986, following a conviction for gas health and safety offences. An offence must occur before a disqualification kicks in, but to respond to the point raised by my hon. Friend the Member for Eccles, who is not in his place at the moment, we continue to consider issues relating to disqualification, which is a subject that I want to pursue during the lifetime of the Bill.
As I have tried to explain, the scope for disqualification exists, and it is based on a test of individual liability, but we have identified no practical options for new proposals in the context of corporate manslaughter. We certainly do not think that it would be possible to disqualify an individual in the way proposed under the new clause. Under the new offence, a prosecution would be brought against the relevant company, and not specific individuals. In those circumstances, it would not be legitimate or practical for the sanctions to include disqualification, as the individuals concerned would not be party to the proceedings, and so would not have had the opportunity to defend themselves.
My hon. Friend the Member for Glasgow, North (Ann McKechin), quoted the often repeated argument that it is not organisations, but people, who do things. I understand that point, but it does not follow that organisational failure can be pinned on senior individuals. If that were true, there would be no need for the Bill, as the existing law on corporate manslaughter would work. The reason why it does not work, as the Health and Safety Executive told the scrutiny Committees, is that the majority of incidents dealt with by the HSE arise from systemic failures, rather than the actions of individuals. The new offence reflects that reality.
For similar reasons, we do not accept that there should be secondary liability under the new offence, as is proposed in the amendments. As I argued in Committee, and as the Law Commission suggested in its original report, if a person satisfies the tests for secondary liability, it is likely that an individual charge of manslaughter would be possible. The Law Commission said:
“We intend that no individual should be liable to prosecution for the corporate offence, even as a secondary party. Our aim is, first, that the new offences of reckless killing and killing by gross carelessness should replace the law of involuntary manslaughter for individuals; and second, that the offence of killing by gross carelessness should be adapted so as to fit the…case of a corporation whose management or organisation of its activities is one of the causes of a death.”
I am trying to give my hon. Friend a cheerful hearing, but he puzzles me a little. Earlier, he very sensibly read on to the record a description of what happened in the case of the Herald of Free Enterprise. I accept that, in that case, there is the issue of extra-territoriality to consider, as my hon. Friend the Member for Hendon (Mr. Dismore) said, but let us go beyond that. Under the Bill, the company would almost certainly have been brought before the courts, but there is almost no case for thinking that any individual would have been, even though the controlling minds failed to establish the health and safety regime that we wanted. Arguably, the Bill would not have been enough to enable us to say to those controlling minds, “Get on with it, and make sure that a health and safety regime is put in place.” That, for many of us, is really the dilemma posed in what the Minister says.
I am trying to argue that there would be the opportunity to combine corporate manslaughter with existing health and safety legislation. My hon. Friend will know that it took a great deal of care and consideration to get the Bill into its present shape. I know that he and my hon. Friend the Member for Eccles, on behalf of trade union groups in the House, have been pushing the trade union agenda for individual liability. I fully understand that, but in my opening remarks on this set of amendments, I asked the House to have regard to the practicality of what we are trying to achieve. My point is that individual liability is catered for under existing legislation, so the Government are not persuaded that we need to move down the route of individual liability in relation to corporate manslaughter.
The aim is to make sure that the legislation works and can create an arena for change, as my hon. Friend the Member for Aberdeen, North (Mr. Doran) said. I hope that it will be a deterrent, and it is important that we use it to make sure that companies change their cultures. I explained to the Committee that I wrote a letter to the then director-general of the CBI, Sir Digby Jones, asking him what a rogue employer was. It took a good few months to get a response, and I had to chivvy him, saying, “I’ve not had a response to my letter.” It is unusual for Ministers to have to chivvy people for not responding to their letters. He eventually responded, and he said that the definition of a rogue employer was someone who did not pay the national minimum wage.
We have moved on from that point in the debate, and in the consultation that took place, the Bill was supported by people in the business community who know that there are rogue employers. As hon. Friends have said, all of us can identify such employers in our constituencies. We are trying to make sure that the culture changes, and that health and safety is a key element. We talk about corporate social responsibility, we look at what companies put in their marketing strategies, and we consider how they treat their employees and communities, but health and safety should be considered alongside those things.
In line with what the Minister says about the definition of rogue employers, does he agree with the statement made by Sir Digby Jones that, when it comes to directors’ responsibilities, corporate manslaughter should be given equity with offences relating to finance, the environment and even food production, all of which could result in custodial sentences?
I am aware of my hon. Friend’s point, which he raised in Committee, too. He knows why we do not think that such a measure would be appropriate at this time. In an earlier contribution, he asked me to outline where we were on corporate probation and reparatory orders, and he asked what we wanted to do about naming and shaming. I am happy to reconfirm our position on all those points, and I may get the opportunity to do so later—[Laughter.] Well, I am always optimistic. I put it on record now that we are considering corporate probation and naming and shaming, in respect of the filing of accounts at Companies House. We are also considering the use of annual reports, and the naming of directors in reparatory orders, to make sure that work is carried out. I hope that that shows my hon. Friend and other hon. Members that we have listened to what was said in debate.
I thank my hon. Friend for giving way; his patience is immense. May I press him just a little further? He has not referred to cases in which a court decides that a named individual, appearing on behalf of a corporation, is guilty. Would that person have to report back to a court, or to a body such as the Health and Safety Executive?
As I understand it, the court would make the order, and it would identify a responsible individual who is to respond to the courts. I was asked to look at those issues in greater detail, and I am prepared to do so. We are working on those details. Unfortunately, through no fault of the Committee or any hon. Member, although we are trying to move the issues forward, time has caught up with us now that we have reached Report and Third Reading. I shall look to develop the themes that my hon. Friend has raised while we make progress with the Bill, which I hope will go to another place this evening.
I am sorry to have to chide the Minister a little—I have not done it much this evening—but it is regrettable that the time available for Report will clearly be massively insufficient. The Bill was carried over, so if the Minister required more time to deal with outstanding issues before Report and Third Reading, there was absolutely no reason why the Government could not have provided it.
I accept that point. [Interruption.] No, certainly not. I reverted to my former career in the Whips Office to understand why we are where we are. We certainly had ample time and opportunity in Committee to discuss the issues. I am trying to explain our motivation, as there is genuine willingness throughout the House to tackle the issue. We have certainly not divided on party political lines in our debates on the Bill, and all right hon. and hon. Members want to introduce a measure that works.
The Minister helpfully said that he would look at the issue of registration at Companies House and the point about company accounts that we highlighted in Committee. Will he examine the requirement that public companies make announcements on the stock exchange, because it may be necessary to prepare prospectuses and documents for public fund raising? Will he therefore give the House an assurance that he will examine the public disclosure requirements connected with the Bill?
I am happy to examine all the options. Indeed, it was suggested today that I look at public procurement by companies that have been convicted, and consider whether or not we can take action. I have to qualify everything that I say, as we must examine these things within the available time scales, notwithstanding the reminder from the hon. Member for Beaconsfield that the measure is a carry-over Bill. I will endeavour to examine the issues in detail, and respond to the House appropriately.
I am grateful to my hon. Friend, who has been very patient indeed. I welcome his comment that the Government will look at disqualification and the option of noting things on the register. He has discussed changing the culture, and the fact that the aim of the Bill is prevention. He referred to systemic failures. If directors could, in fact, be imprisoned, does he think it more likely, equally likely or, as I think, less likely that such systemic failures would occur?
My hon. Friend tempts me with a multiple choice question. The Bill and the cultural changes that, hopefully, it will bring about, either by acting as a deterrent or offering a legal remedy, will make directors at all levels, particularly senior directors, understand their responsibilities and the nature of what is required of them. He will have heard me say that this is no longer an adversarial matter between unions and employers—an integral part of the responsibilities of modern-day employers is ensuring the safe running of their organisations. We must achieve cultural change so that we can prosecute the rogue companies—we all know that they exist—that are responsible for serious offences by allowing practices that cause death.
I am mindful of the time, and I do not want to delay our discussion of other issues. The Department for Work and Pensions commissioned the Macrory review of regulatory enforcement, which will make an important contribution to the discussion of penalties. My hon. Friends the Members for Eccles and for Manchester, Central have taken up the issue with my right hon. Friend the Secretary of State for Work and Pensions, and they are trying to push it in relation to the Health and Safety at Work, etc. Act. I am happy to support them in any way that I can.
I have spoken at length, because the issue is crucial. The purpose of the Bill is to create a new basis for corporate liability, so that organisations that are grossly negligent and cause death cannot evade liability because of a loophole in the law, regardless of whether particular individuals committed an offence or not. That is an important achievement. There will be opportunities for further debate about health and safety management, but I hope that I have said enough to convince my hon. Friends and other right hon. and hon. Members not to press their amendments.
I shall certainly not take up very much time. I simply wish to echo the point made by Labour Members that there are public expectations of the Bill. I think that those expectations, which date back 10 years, to the time when the Law Commission first reported on the issue, will be disappointed by the Bill in its existing form. I have been campaigning on the issue for 20 years, and when I was in practice, I encountered far too many widows and children who were victims of accidents—not just the Herald of Free Enterprise disaster and the King’s Cross fire, but what one might call ordinary accidents, in which ordinary people were killed in ordinary circumstances. Those accidents were not noteworthy but, none the less, they were the result of gross negligence by the companies responsible for them.
There is a need for justice, and for someone to answer for what happened, but the Bill in its present form does not provide. People want to be sure that things will never happen again in the same way, and we can ensure that that is the case only by making sure that the individuals responsible are held to account. We have heard a number of different formulations today—I do not claim that new clause 1 offers the best formulation—and we have heard about other opportunities, including those offered by section 37 of the Health and Safety at Work, etc. Act. Corporate manslaughter could become an offence under the relevant statutory provisions for the purposes of section 37, or that section could be extended to include imprisonment and disqualification. I am grateful for the assurance from my hon. Friend the Minister that he will continue to look at the issue, as it is essential that we find a way of bringing those individuals responsible to book. In begging to ask leave to withdraw the motion, I hope that the other place will revisit the issue and take note of our discussions.
Motion and clause, by leave, withdrawn.
New Clause 3
Liability of holding company
‘(1) In the case of a corporation which is found guilty of corporate manslaughter, any holding company of such corporation shall be guilty of an offence if the holding company failed to take all reasonable steps to prevent such corporation from committing the offence.
(2) A corporation that is guilty of an offence under this section shall be liable on conviction on indictment to a fine.
(3) An offence under this section is indictable in Scotland only in the High Court of Justiciary.
(4) For the purposes of this section the term “holding company” shall have the meaning set out in section 736 of the Companies Act 1985 (c. 6).’.—[James Brokenshire.]
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 5—Proceedings against unincorporated bodies other than Crown bodies—
‘(1) Proceedings for an offence under section 1, alleged to have been committed by any unincorporated association or body other than a Crown body, shall be brought in the name of that association or body (and not in that of any individual member or other person) and for the purposes of such proceedings any rules of court relating to the service of documents apply as if that association or body were a corporation.
(2) A fine imposed on an unincorporated association or body on its conviction of such an offence shall be paid out of the funds of that association or body.
(3) In a case in which an unincorporated association or body is charged with such an offence, section 33 of the Criminal Justice Act 1925 and Schedule 3 to the Magistrates Court Act 1980 (procedure on charge of an offence against a corporation) have effect in like manner as in the case of a corporation so charged.’.
Amendment No. 1, in clause 1, page 1, line 11, at end insert—
‘(d) a partnership;
(e) an unincorporated association.’.
Amendment No. 22, in line 11, at end insert—
‘(d) a partnership (as defined in section 1 of the Partnership Act 1890 (c. 39)), where that partnership is subject to some or all of the provisions of the Health and Safety at Work etc. Act 1974;
(e) an unincorporated association or body, where it is subject to some or all of the provisions of the Health and Safety at Work etc. Act 1974.’.
Amendment No. 27, in line 11, at end insert ‘(d) a business association’.
This group of amendments deals with organisations that commit an offence under the Bill. New clause 3 seeks to extend liability beyond individual companies that have committed an offence by piercing the corporate veil so that holding companies bear some liability. If a breach took place, an individual company would be liable for the offence under clause 1. On Second Reading and in Committee, we discussed whether that was appropriate, given the complex arrangements within which corporate groups operate, and whether the corporate veil should be lifted and liability should apply to holding companies of the companies that have committed the offence. We did not table a formal amendment in Committee, but it is a serious issue that deserves further scrutiny.
I have consistently said that the Bill should lead to cultural change and ensure that health and safety escalates up the agenda so that issues and events that have been rightly highlighted do not arise. If, however, they do arise, appropriate punishment should be available to give people who have lost loved ones a sense of justice. If the Bill is limited to individual companies that operate within larger groups, there is a risk that justice will not be delivered, and the cultural change that many of us wish to achieve will not be sufficiently encouraged, thus denying holding companies and parent companies with subsidiaries that carry out their day-to-day activities a greater sense of involvement in the scheme of things. New clause 3 seeks to extend that so that if a corporation whose subsidiary commits an offence has not taken all reasonable steps to prevent that, there may be further liability for which the sanction would be a fine.
It is worth examining the case that the Minister highlighted—the Hatfield rail case, in which certain parameters for how fines would be constructed were set. The trial judge, Mr. Justice Mackay, said:
“The defendant’s resources and the effect of a fine on its business are important. Any fine should reflect the means of the offender, and the court should consider the whole sum it is minded to order the defendant to pay including any order for costs.”
That makes it clear that the focus is on the individual defendant, not above that.
As we know, groups of companies operate in sophisticated ways. I accept that the new clause may not be perfect and may require further examination, but it raises serious questions about whether it is right to limit liability at trading company level, whether that allows liability to be limited within a larger group, and whether we should extend it.
Can the hon. Gentleman explain his thinking in subsection (3), which makes the new clause indictable in Scotland only in the High Court of Justiciary? He will be aware that culpable homicide, in theory at least, can be policed in the sheriff court, although in practice it is nearly always tried in the High Court. There is an important point of principle involved—that is, in Scots law the choice of forum is the prerogative of Crown counsel.
I am grateful for the hon. Gentleman’s intervention. The reason for structuring the clause in that way is to mirror the substantive offence under clause 1,and to create symmetry between the primary offence that the main trading company may have committed and the holding company. A parallel between the two potential offences would be appropriate.
This is an important debate. I declare a possible interest, in that my wife is chairman of an investment company. What troubles me about the new clause is that it seems to conflate the duties of an investor with the duties of a director of the operational company. The duties of an investor are quite different from the duties of those who operate the company.
My right hon. and learned Friend makes an interesting and important point. In the context of the offences created under the Bill, if we are seeking justice for families who have lost loved ones in a particular situation or event, it is worth exploring and making it clear where the limitation of liability for that starts and ends. He is right to highlight the role of management, which is dealt with in the Bill where the circumstances of the offence are set out, but there are other examples in legislation where the corporate veil has been pierced. In the case of a wholly owned subsidiary, the operation of the trading company and its investor are very much aligned. The separate corporation may have undertaken the act largely as a consequence of tax planning or the administration of a wider group. It is worth identifying the role that a holding company may have in those circumstances to ensure that its subsidiaries maintain appropriate standards. That is the purpose of the new clause.
I am grateful for the serious way in which my hon. Friend is responding on this important matter. Let us take as an example a railway operating company and somebody who seeks to acquire the controlling interest in the railway operating company. The skills are wholly different, and the investing company is entitled to look to the directors of the railway operating company to discharge the duties of care that they owe to the public and their employees.
Again, my right hon. and learned Friend draws attention to an important point. That may be true in some circumstances, but not in all. The board of the holding company—the parent company—may be a mirror image of the board of the subsidiary company, so it would be strange if it were not able to look through. The crucial words in the new clause are
“failed to take all reasonable steps”.
The question is what may be reasonable in the circumstances, and the degree of control may be relevant to establishing whether it is reasonable for the holding company to have sought further controls over its subsidiaries.
I take seriously the distinction between management and shareholder investment and shareholder control which my right hon. and learned Friend highlights. Those aspects were considered when the clause was drafted and the test of reasonableness included. The concept of reasonableness may need refining. It is important to put it on record that the matter requires further consideration. I hope that the Government will take the new clause in the spirit in which it was tabled to ensure that justice is delivered and that groups acknowledge their responsibilities. Trying to ring-fence a risk within a particular operating company is not an acceptable way of managing risk.
The other amendments in the group deal with the fundamental distinction between unincorporated associations and partnerships, which are not included in the ambit of the Bill. Clause 1(2) merely specifies a corporation, a department or other body listed in schedule 1 and a police force as the organisations that would be caught by the clause. The Joint Committee commented that
“a gap in the law will remain for large unincorporated bodies such as big partnerships of accounting and law firms. We are concerned that such major organisation will be outside the scope of the Bill and would recommend that the Government look at a way in which they could be brought within its scope.”
We discussed that in Committee. The Government accepted that there was an argument, but felt that it was too complex to legislate with respect to unincorporated associations, or that there were not sufficient cases to warrant such a provision, because of the nature of partnerships. That creates an artificial distinction. As I recall from our previous discussions, only about a dozen cases a year were likely to fall within the ambit of the legislation.
I would feel uncomfortable if an event occurred that resulted in loss of life yet the business concerned did not fall within the ambit of the Bill merely because of the way in which it had organised itself—particularly given that a business can choose whether to incorporate itself or to operate on a different basis, such as a partnership, which we see in many fields. Taking the example of health services, GPs traditionally tend to operate as partnerships; the way that the profession has established itself may be a quirk of history. Several companies operate in the health sector, including in out-of-hours services. The Bill will catch a service provided by a company but not by a partnership, even though that is merely a function of how the business or enterprise has been organised. It is strange to have that fundamental distinction whereby one is caught and the other is not. We have addressed that fundamental problem at length and will continue to return to it. The Minister has accepted that unincorporated associations and partnerships are captured in several pieces of legislation. For example, the 1974 Act frames it in the context of the word “employers”.
If a constituent came to me having lost a loved one and said, “Why did you choose to create this artificial distinction in the Bill? If this business had organised itself as a company, there would have been a direct remedy in terms of corporate manslaughter, but because it hasn’t there is no liability.” I would find that discussion very difficult, as we all would. That is why it is important that unincorporated associations and partnerships are brought within the scope of the Bill to provide a sense of justice and to ensure that we take the whole issue seriously and escalate its importance, while hoping that such events never occur. Depending on how the Minister responds and how the debate progresses, I will carefully consider whether to press amendment No. 1 to the vote.
Amendment No. 1 is my amendment, but as the hon. Member for Hornchurch (James Brokenshire) has supported it, I should perhaps say a few words.
I am concerned that the original, broader, definition used, for example, in the Government’s 2000 consultation, which referred to “undertakings”, has been removed so as to exclude, in particular, partnerships and unincorporated associations. The amendment would rectify that. It has been suggested that for small businesses in this category, where prosecutions that have succeeded under the existing law are to be abolished, we would see cases brought against the named trader. As for large partnerships, it has been said that they are “low risk”, but that does not mean “no risk”. Organisations such as schools, clubs and even trade unions are outside the scope of the Bill.
In their response to the Select Committees on Human Rights and on Work and Pensions, the Government said that they would consider this further but appear to be sticking to the limited scope of the Bill as it stands. When they consulted in 2000, they 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.”
I understand the importance that is attached to this issue, but my hon. Friend will be aware of the Law Commission report, which said that we must be very cautious about it. I am sure that he would not want small charitable organisations to be caught. I am committed to ensuring that we move forward, but I ask him to accept that this is a dangerous area and that if we get it wrong people could be caught by this offence who do not need to be caught.
Equally, the opposite problem, which was identified by the hon. Member for Hornchurch, is that we may not catch people who should be caught.
To avoid that risk of arbitrariness, the Government should reconsider the original definition of “undertakings”, on which they have more or less done a U-turn. The Minister sent me, as Chairman of the Human Rights Committee, a letter that tried to draw a distinction between a corporation and an unincorporated association. That is a false distinction, because the law already makes specific provision for organisations such as unions, schools and so forth. The Companies Act 1985 allows prosecution for other offences. Partnership law clearly sets out the legal status of partners and provides for the “comings and goings” of partners and their former, continuing or new liabilities. Some of those are very large organisations. The various education Acts clearly set out the collective duties of school governors, as a body; and a school itself can be liable through the education authority or directly, depending on its status. The law relating to trade unions permits legal action to be taken against them in civil and in criminal law, and individual officers have clear responsibilities too. All those bodies can be sued or prosecuted under existing law. That has not caused any difficulty, so why should there be difficulty in relation to corporate manslaughter?
There is no justification for this exclusion. The Human Rights Committee said that it could lead to our being in breach of article 14 of the European convention on human rights, when applied in conjunction with the right to life in article 2, because of the discrimination within the system whereby if one person was killed an offence would be committed, but if another person was killed in identical circumstances an offence would not be committed simply because one happened to be killed by a company and another by a partnership or by a trade union, school or other unincorporated association. That cannot be right.
We must have consistency in the law; otherwise—to adopt the argument about directors trying to avoid their liability—we might find all kinds of weird and wonderful organisations being set up to avoid liability by establishing themselves as something other than a company. That surely cannot be what my hon. Friend the Minister intends. While accepting his point about small charities, I hope that the Government will reconsider the definition to try to ensure that we catch all those who should be caught.
Liberal Democrat Members support the thrust of the thinking behind new clause 3. The hon. Member for Hornchurch (James Brokenshire) made the point very well in Committee. I am sure that the Minister sympathises, and he should consider its terms and at least table amendments in the other place. We also support amendment No. 1, in the name of the hon. Member for Hendon (Mr. Dismore), which seeks to achieve similar things to our amendment No. 22 and new clause 5. If I have a preference, it is for amendment No. 1.
The Government seem to be in two minds. When they issued the Home Office consultation document in 2000, they were happy that unincorporated associations and partnerships should fall within the ambit of the organisations that would be liable to the new offence. It is regrettable that they did a U-turn on that. In Committee, the Minister seemed open to the idea and did not close the door on it. If he has sympathy with the argument, he should take this opportunity to act, because such Bills do not come along every week. I am sure that he understands that, and I wish him well in his arguments in Whitehall.
The arguments that the Minister and his colleagues have used so far against including unincorporated associations and partnerships have been weak, to say the least. For example, the hon. Gentleman said in Committee that, according to the Health and Safety Executive, not many cases had arisen. Such an argument is frankly poor. It will not do any favours to a relative of someone who was killed as a result of gross negligence manslaughter by a partnership or unincorporated association. Relatives would not be impressed to hear that Parliament considered the matter but, because there were not many such cases, did not bother to legislate.
There is a perverse problem in that not legislating could create an incentive for companies to structure themselves as unincorporated associations and partnerships if they were trying to get out of health and safety legislation. Let us be clear: the rogue bosses, to use the Minister’s phrase when he spoke about correspondence from the CBI, will try to escape such control. They will structure themselves in order to do that. If the Minister is not careful, he will create a loophole, which the sort of companies that he mentioned will try to exploit.
The hon. Member for Hornchurch covered many other issues that I wanted to tackle, so I shall not repeat his comments. I shall simply consider a matter that I raised in Committee and that amendment No. 22 reflects. There could be small unincorporated bodies consisting, for example, of two individuals. Individual A could commit an offence of which individual B had no knowledge but was somehow found guilty through being part of the unincorporated body. I believed that there was a danger of unfairness.
On reflection, I was unwise to be so concerned because, in such a case, it is more likely that individual A would be charged with individual gross negligence manslaughter. The Director of Public Prosecutions would be unlikely to believe that it was in the public interest to prosecute individual B. The unfairness about which I was worried in Committee and led to my drafting amendment No. 22 is not such a problem. It is far more important to include unincorporated associations and partnerships in the Bill and I hope that the Minister accepts that.
I shall be brief because I made my point in an intervention. I am largely persuaded by the comments of my hon. Friend the Member for Hornchurch (James Brokenshire) about amendment No. 1. He made a sound point.
However, I am much more troubled by new clause 3 because it is important to keep in mind that criminal liability should depend on a finding of culpability—fault. There is a serious distinction between the duties of the investing company and those of the operating company. They are not the same. For example, a land company might decide to invest in a hotel. The duties of the directors of the land company do not necessarily reach down to operating the hotel. It is not for the investor in the land company to ensure that, for example, the lifts operate or the hotel floors are kept free of grease so that people do not fall. It would be manifestly unjust to conflate the duties of the investor with those of the operating company.
However, I do not claim that there may not be circumstances in which that general principle should be displaced. I can imagine artificial constructions whereby it would be right to attach the liability of the operating company to the directors of the investing company. However, the new clause creates a presumption that the investing company could be liable for the failures of the operating company and I am uneasy about that. Again, for the avoidance of doubt, if I have an interest to declare, I do so because my wife is the chairman of an investing company.
I fundamentally disagree with the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). I understand his point—we need to avoid the unintentional consequence. However, it would be undesirable to create a presumption that it was possible to escape the impact of the law by erecting specific corporate structures. The creation of holding companies to avoid liability would make nonsense of what we are trying to achieve.
There is an increasing trend of international holdings companies—almost asset holding companies—coming to this country where we have, in many ways rightly, an open economy, buying into a company and taking little interest in it except for driving tough bargains on corporate objectives. The corporate objective is to maximise the return on assets in the quickest possible time. One of the problems almost exactly reflects what my hon. Friend the Minister read to us earlier when we considered P&O and the Herald of Free Enterprise. No hon. Member wants to create a structure whereby companies can avoid liability unintentionally—or even intentionally—while driving a tough bargain that goes against the safety case.
We must consider the logic of the case, even if the new clause is not correctly structured. We should also do that with amendment No. 1 and the debate about unincorporated and incorporated structures. I hope that the Minister will make it clear from the Dispatch Box that the Government remain seized of the matter. It is important to be reassured that it can be taken forward between here and another place and that amendments will be made to plug possible gaps, which the Government do not intend and no hon. Member wants.
I shall not detain the House long because I do not depart from what others have said. However, given that I tabled amendment No. 27, I should like to make a few comments about it. The wording is not original but comes from the Law Society of Scotland. I always have one eye on the fact that I may require its co-operation again in earning a living at some stage in future, and I therefore like to be helpful to it.
The point of the hon. Member for Hornchurch (James Brokenshire) about constituents coming to a surgery and asking why their husbands, sons, daughters and so on cannot have the satisfaction of a prosecution of their case strikes at the heart of the matter. Earlier, the Minister spoke at length about the purpose of the Bill. Surely we do not want its purpose to be defeated by a fairly artificial distinction.
Although the distinction is artificial, it is also real. Under Scots law, the constitution of a partnership has a separate legal personality, distinct from the individual partners who comprise the partnership. In the dim and distant past, I prosecuted several health and safety cases and the distinction is especially important in sectors in which small and medium-sized enterprises predominate. That applies especially to construction, agriculture and sometimes the fishing industry. All those sectors operate predominantly through partnerships, if not sole traders. The small and medium-sized enterprise sector does not excel in its regard for health and safety law.
Does the hon. Gentleman agree that the Scotland Act 1998 specifically provides for the term “business association”? It declares that aspects of regulation and control are specifically reserved to Westminster, and it would therefore be more than appropriate for them to be covered by he Bill.
I am grateful to the hon. Lady because when the Law Society of Scotland first provided me with amendment No. 27, I queried its choice of the term “a business association”. Its understanding was the same as the hon. Lady’s and, having checked, I believe that the term is perfectly proper and places the matter clearly within the Chamber’s competence.
I make only one further point, about evasion. We heard at some length in the earlier debate about the remedies that are available to people who have operated as directors of limited companies and other incorporated bodies under the Company Directors Disqualification Act 1986 and so on, but no similar protection is available to the public in terms of partners. It is much easier for a legal entity to reconstitute itself as a partnership than it is to do so a limited company. Those who are most likely to seek a way out of the provisions will be the first to cotton on to that, so I hope that the Minister has some words of comfort about that.
I appreciate the spirit in which the new clause was moved, although I did not realise what the hon. Member for Hornchurch (James Brokenshire) had threatened to do if he does not hear the answer he wants. I shall do my best, because it is a threat that I would not want him to pursue, although that decision will be in his hands.
The amendments in the group are aimed at two different ideas: the liability of holding companies and extending the offence in unincorporated bodies, as well as the issues relating to Scotland. The new clause, which was proposed by the hon. Member for Hornchurch, raises interesting questions. It is not aimed at making a holding company liable for corporate manslaughter when that has been committed by one of its subsidiaries, but it suggests a new offence of not taking all reasonable steps to prevent the offence from being committed.
The basic position is that each company within a group is a separate legal entity, with its own rights, liability and assets. Each company has a distinct legal personality and the directors of each company must act in the interests of that company. For the offence, that means that the company that owed the relevant duty of care to the victim will be prosecuted. That reflects the current law. For example, in the Hatfield case, a subsidiary of Balfour Beatty was prosecuted, rather than the parent organisation.
If we are going to go down the route of holding one person to account for failing to prevent another from committing a crime, the circumstances in which that liability applies need to be defined with care. The proposal in the new clause is that the holding company must have taken “all reasonable steps”, but what reasonable steps would those be? Companies within a group structure are separate entities and do not owe obligations to prevent others from committing a crime. Unsurprisingly, being members of one group, the holding company will not want to see members of the group prosecuted, as that would inevitably impact on the reputation and standing of the group of the whole. The coverage of the Hatfield case made little distinction between Balfour Beatty and its subsidiary. But that self-interest is very different from identifying concrete steps that a parent company ought to be taking in respect of its subsidiaries, where the consequence of failing to take those steps is a criminal offence.
Consultation by the Department of Trade and Industry preceding the recent companies legislation looked at whether changes should be made to the liability of parent companies in the civil law, but it was decided not to change the law. The report considered that it would be difficult to define when subsidiaries were being used abusively to reduce risks of litigation, because no other jurisdictions made parent companies automatically liable, and because of the lack of evidence that companies had used group structures abusively. Similar considerations arise in the context of the new offence.
The criminal law has specific principles of secondary liability for holding people to account for their contribution to another’s crime, but it does not generally impose a duty to prevent the criminality of others. We are not satisfied that that would be appropriate in this case. Secondary liability for the new offence is not disapplied in respect of other companies, such as holding companies. That will undoubtedly be a high test to satisfy, but the consequence of the new clause would be to place an undefined duty on holding companies in respect of their subsidiaries, which would be left to the courts to flesh out. That would be very unsatisfactory.
The other aspect of the amendments is the question of unincorporated bodies. Such bodies do not have a separate legal personality, but there are none the less a wide variety of statutory provisions and offences that apply, particularly in the regulatory field. It is of course absolutely vital that such regimes apply comprehensively to all employers and businesses. However, the lack of legal personality does not mean that such bodies cannot at present be prosecuted for the common law offence of manslaughter, so the question is whether to extend the offence to a new class of organisation.
The Law Commission was cautious about doing so. It recognised that there may be many similarities between incorporated and unincorporated bodies in practical terms, but felt that the nature of the body meant that there was an important difference. In the Law Commission’s words:
“Many such organisations are for practical purposes indistinguishable from corporations, and it is arguable that their liability for fatal accidents should be the same. However, we have concluded that it would be inappropriate for us to recommend such an extension of the offence at the present time. Under the existing law the individuals who comprise an unincorporated body may be criminally liable for manslaughter, as for any other offence; and, by contrast with the law relating to corporations, the question of attributing the conduct of individuals to the body itself does not arise. In this respect the law will be unaffected by the replacement of manslaughter with the offences in the draft Bill of reckless killing and killing by gross carelessness.
It would clearly be wrong to extend the offence to all unincorporated bodies, because there are many such bodies (for example, a partnership of two individuals, employing no-one) that would be unfairly disadvantaged by being charged with the corporate offence (which does not require foreseeability) rather than that of killing by gross carelessness (which does). Any extension of the offence beyond incorporated bodies would therefore raise intractable problems as to the kinds of unincorporated body that ought and ought not to be included. But there has been no consultation on any proposal to this effect, either in the consultation paper or in any other form. We think it would be wise to await experience of the operation of our proposed corporate offence, in the context of the kind of organisation for which it is primarily designed—namely the commercial corporation—before considering whether to extend it further.”
I shall respond to my hon. Friend’s question in due course—[Interruption.] If hon. Members give me the opportunity, I shall refer to the point that he raised.
The potential application of the offence is sometimes considered to be more restricted than it will be. For example, NHS hospital trusts are sometimes quoted as a type of body that will not be covered because they are not incorporated, but that is not correct because NHS trusts are, by statute, corporate bodies.
There was also an interesting example on Second Reading, which was further considered in Committee. The hon. Member for Beaconsfield (Mr. Grieve) referred to an example of a potentially serious gap, suggesting that the Bill would not apply to Lloyd’s Register of Shipping, which was prosecuted some years ago following the collapse of a pedestrian walkway in Ramsgate. That case involved six fatalities and Lloyd’s Register, which had certified the walkway, was prosecuted along with the design and build contractor, the sub-contractor and the port of Ramsgate. We are satisfied that there would be no gap in the law in that respect, and that the offence would have applied to all four defendants in that case. Specifically, we understand that Lloyd’s Register of Shipping is a registered industrial and provident society. As such, under the terms of the Industrial and Provident Societies Act 1965, it is a form of statutory corporation and is not an unincorporated body.
We have approached the issue from a pragmatic angle. Our focus has been on addressing the key problem in the law, which is the difficulty of prosecuting large companies and corporations under the identification principle. Information from the Health and Safety Executive suggests that only 2 per cent. of its prosecutions are against unincorporated bodies, and that they typically involve smaller businesses, such as building firms and sole traders, where individual prosecutions are likely to be possible.
A wholesale extension of the offence to unincorporated bodies would mean that it would apply not only to larger partnerships and similar organisations, but to smaller clubs and societies. Organisations of that nature are least likely to understand the implications of the new offence, and most likely to act risk aversely through ignorance. We would not want to put off local sports clubs and the like, although I recognise that there is a range of opinion that the offence should extend in some fashion to those bodies.
My hon. Friend the Member for Hendon (Mr. Dismore) asked about the offence not applying to undertakings, as was originally proposed in 2004. In May 2000, in the consultation paper, “Reforming the Law on Involuntary Manslaughter”, the Government canvassed the possibility of the offence applying to all undertakings. They noted in paragraph 3.2.4 that although the term is used without definition in the Health and Safety at Work, etc. Act, the Health and Safety Executive had relied on the definition in section 15 of the Local Employment Act 1960, which has since been repealed, in which it means
“any trade or business, or other activity providing employment”.
An alternative definition can be found in the Information and Consultation of Employees Regulations 2004, in which “undertaking” means
“a public or private undertaking carrying out an economic activity, whether or not operating for gain”.
Notwithstanding the circularity of the latter definition, and the fact that “undertaking” is frequently used without definition, we think that it is reasonably clear that the term “undertaking” would cover the business of a sole trader. That is apparent, for example, from section 3(2) of the Health and Safety at Work, etc. Act, which imposes a duty on
“every self-employed person to conduct his undertaking in such a way as to ensure”
that he is not exposed to risks. We consider that it would be illogical and unnecessary to apply corporate liability to the business of a sole trader. The purpose of the Bill is to ensure that criminal liability exists in circumstances in which reliance on individual liability would be inadequate, hence the exclusion of corporations sole in clause 1(2). In our view, nothing would be added in terms of deterrence or the rights of victims if we were to legislate to provide that sole traders could face corporate as well as personal liability. We do not therefore consider it appropriate to apply the new offence to those undertakings. To the extent that that would enable the offence to extend to unincorporated bodies, the position is covered. I explained to my hon. Friend the Member for Hendon that I was happy to discuss further details with him during the passage of the Bill.
I am conscious that Scottish partnerships are in a different position from other unincorporated bodies, as they have a separate legal personality. I have not acted on that with any amendments today, but I will consider the matter further, and the Government will introduce amendments in relation to unincorporated bodies in the other place.
I do not want to make false promises at this stage, as the answers are not straightforward. I am prepared, however, to consider the matter in more detail to see what might be done. I recognise the sincerity of hon. Members in wanting to get the provision right. I hope that I have set out how difficult that is, not only through my explanation but through that given by the Law Commission. We have had an opportunity to air the matter further, and we will consider what amendments can be tabled in the other place. With those guarantees, I hope that the hon. Member for Hornchurch will not press the matter to the vote as he threatened. I also ask my hon. Friend the Member for Hendon not to press his amendment to the vote.
I have listened carefully to the Minister and to the debate on new clause 3. I listened carefully to the comments of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). I recognise his point in relation to the concept of piercing the corporate veil and making holding companies liable in some way for the acts of their subsidiaries. In tabling the new clause, my intention was to highlight the issue. There is a gap, and the issue has been aired this evening. I hope that it will receive further consideration in the other place.
Unfortunately, the Minister’s arguments in relation to unincorporated associations and partnerships have not taken the debate much further forward from where it was on Second Reading, in Committee or even before the Bill was published yet again. The argument was advanced that the matter could not be dealt with because of the complexity of structure. As we have highlighted, however, in other cases, unincorporated associations and partnerships are covered and liability can arise. As for the distinction of not wanting to extend the common law offence widely and to other unincorporated associations and partnerships, the argument is not particularly strong.
In relation to the argument about the small number of cases, I reiterate that I would not want to have to explain to someone who has lost a loved one that an offence does not lie merely because a business was constructed in the form of a partnership rather than a corporate structure, particularly when partnerships can have hundreds of employees and be large businesses in their own right.
The Minister said in Committee, and repeated this evening, that he sees this question as one for the future. Tonight, we have the opportunity to consider the matter. Unless another of the signatories to amendment No. 1 seeks to press it to a vote, I should like to do so. Meanwhile, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Amendment proposed: No. 1, in page 1, line 11, at end insert—
‘(d) a partnership;
(e) an unincorporated association.’.—[Mr. Dismore.]
Question put, That the amendment be made:—
Meaning of “relevant duty of care”
With this it will be convenient to discuss the following amendments: No. 12, in page 2, line 29, at end insert—
‘(d) a duty owed to anyone held in custody.’.
No. 13, in page 3, line 3, at end insert—
‘ “custody” includes being held in prison, secure mental healthcare facilities, secure children’s homes, secure training centres, immigration removal centres, court cells and police cells, and being subject to supervision by court, prisoner and detainee escort services;’.
No. 14, in page 3, line 25 [Clause 3], leave out ‘or (b)’ and insert ‘(b) or (d)’.
No. 41, in page 3, line 25, leave out ‘or (b)’ and insert ‘, (b) or (bb)’.
No. 15, in page 3, line 28, leave out ‘or (b)’ and insert ‘(b) or (d)’.
No. 4, in page 4, line 36 [Clause 5], at end insert ‘or (bb)’.
No. 5, in page 5, line 4, at end insert—
‘(e) the management of a prison, youth offenders’ institute, police station custody unit, immigration accommodation centre, or any other place of lawful detention.’.
No. 16, in page 5, line 4, at end insert—
‘(e) the management of a prison, young offenders’ institution, police custody unit, immigration accommodation centre or any other place of lawful detention.’.
No. 73, in page 14, line 26 [Schedule 2], at end insert ‘Her Majesty’s Prison Service’.
These amendments cover the issue of deaths in custody caused by gross negligence. In the Joint Committee on Human Rights report on deaths in custody published almost two years ago to the day, the Committee reported that, in prisons and mental health institutions, someone is killed, kills themselves, or dies in questionable circumstances every other day on average. Of course, not in all, but certainly in some of those cases people in custody have died as a result of the gross negligence of the authorities that should have been caring for them.
I mention just two cases to illustrate the point. In 1994, Christopher Edwards, a remand prisoner, was violently killed in his prison cell by a highly dangerous, mentally disordered prisoner with whom he had been made to share his cell. The European Court of Human Rights found that the authorities should have known about the risk to Christopher’s life but failed to pass on the necessary information about the dangerous offender and also failed to screen him properly when he arrived at the prison. They therefore failed in their duty to protect Christopher’s right to life.
In 2000 it happened again in perhaps even worse circumstances. Zahid Mubarek, a young Asian man, was detained in Feltham. He was beaten to death with a table leg by his cell mate who was well known by the Prison Service to be a violent and sometimes racist psychopath. The report of the independent inquiry into the death said that the two should never have been placed in the same cell. It found:
“Had there been effective management from the Governor down, and within the wider prison system, the death could have been prevented”—
language not dissimilar to Lord Justice Sheen’s in the Zeebrugge inquiry. I particularly refer to those two cases, out of all the violent deaths, for good reasons, to which I will refer later. Suffice it to say for now that, in both cases, if this Bill were to apply to deaths in custody, there would at the very least be a case to answer by the Prison Service—and probably the prospect of a successful conviction.
In its 2004 report on deaths in custody, the Joint Committee on Human Rights recommended both consideration of a new offence of causing or allowing the death of a person in state custody; and, of particular relevance today, that an offence of corporate killing should be made applicable to public bodies such as the police, Prison Service and health authorities, to provide adequate protection of the right to life against careless killing by public bodies.
In their response, the Government refused to agree to the individual offence, but said in relation to the corporate killing offence that they
“recognised the importance of accountability where serious management failures lead to death and is committed to producing a draft Bill...the details of our proposals, and the sort of circumstances in which it would apply, will be set out”.
That obviously sounded rather more hopeful to the Committee. However, our Committee's optimism was clearly misplaced. The Bill as drafted does not permit prosecutions for corporate manslaughter against the Prison Service, even in cases such as the two I have referred to, even where it could be shown that the death was caused by gross management failure. The effect of my and others' amendments would be to make such prosecutions possible, where a death in custody has been caused by gross negligence in the management of the public authority in question.
The issue has been carefully considered by the Select Committee on Home Affairs and the Select Committee on Work and Pensions in their joint report on the draft Bill, and by the Joint Committee on Human Rights for a second time under my chairmanship in its report on the current Bill. All three Committees concluded that that there was no justification for excluding deaths in custody from the scope of the new offence.
So why have the Government failed to include them, given the scale of the problem? The Government have offered two distinct justifications for excluding deaths in custody. First, they say that criminal prosecutions are not necessary in the case of deaths in custody caused by gross negligence, because of the other accountability mechanisms which are already available. Such deaths, they say, are already subject to rigorous independent scrutiny through public inquests before juries and through independent reports capable of ranging widely over management issues. Of course, that argument applies to nearly all deaths that could be the subject of a prosecution under this Bill. There will inevitably be an inquest into such fatalities. Deaths at work inevitably lead to Health and Safety Executive investigations. Rail or other transport deaths are subject to investigations by the specialist inspectorates and often by the police, too, so what is different about deaths in custody?
The answer is the opposite of what the Government claim. Far from wide-ranging independent reports being the norm, if anything, they are the exception, and their establishment is often fiercely resisted by the Government in the first place, as happened in the two cases of Zahid Mubarek and Christopher Edwards, to which I referred earlier.
The independent public inquiry into Zahid Mubarek's death only took place because the Home Secretary was ordered by the House of Lords to hold such an inquiry, under the Human Rights Act 1998. That was more than three and a half years after the death occurred. The family's requests for such an inquiry had been refused by the Home Secretary. Zahid's family had to fight the Home Secretary's denial of their right to know what happened all the way to the House of Lords. There, they eventually obtained a declaration that an independent public investigation of the death had to be held, in order to satisfy the obligation imposed by the right to life in article 2 of the European convention on human rights. The subsequent inquiry finally reported in June 2006, more than six years after Zahid Mubarek's death, in the castigating terms to which I referred earlier.
The House of Lords in the Mubarek case relied heavily on the earlier decision of the European Court of Human Rights in the case of Christopher Edwards. In that case, the Government also refused the family's requests for an independent public inquiry. Then, the family had to fight the case all the way to the European Court of Human Rights to establish, more than seven years after Christopher Edwards' death, that the Government had failed in their duty to ensure that there was an adequate and effective investigation into the death. Even after that, no independent inquiry was ever held into that case.
Moreover, those alternative methods of accountability have proved inadequate to protect people from non-natural deaths in custody. As for the possibility of individual liability for manslaughter, of the cases of deaths in custody known to Inquest from 1991 to August 2006, there was not one conviction for manslaughter in relation to a death in custody, following an inquest verdict of unlawful killing. Therefore the Government's argument that deaths in custody can be distinguished owing to the rigorous investigation of such cases, as compared with all others covered by the Bill, simply does not stand up to scrutiny.
I hope that my hon. Friend would acknowledge the independent nature of Her Majesty’s inspectorates of prisons and of the probation service. I do not think that it is true to say that the Government are kicking and screaming at every opportunity so as not to find out and understand what goes on in terms of deaths in custody. It is not all one-way traffic. I hope that he will recognise that, in the latest legislation, the Government agreed to continue the independence of Her Majesty’s inspectorate of prisons.
On the latter point, I simply say that that happened after a lot of argument and debate. It was not exactly a willing approach on the part of the Government, who had to be dragged kicking and screaming to that position. We are talking here not just about ordinary deaths in custody that are investigated in the same way as a factory accident. Not every factory accident would lead to a prosecution for corporate manslaughter. Not every factory accident is the result of gross negligence. Similarly, not every death in custody is the result of gross negligence. The two cases that I referred to probably were, and those two cases are the worst I can think of, where a prisoner was killed by another prisoner in circumstances where the second prisoner was known to be violent and likely to commit such an offence. In both cases, the requests for independent inquiries were refused and were ultimately ordered by the courts. One of those cases occurred when the Conservatives were in power and the other happened under the current Government, so we are talking about Governments of more than one political hue. In relation to neither case does the Government’s argument hold water that all such cases are subject to the kind of rigorous scrutiny that they should be.
Even if the Government are right and there is a stronger approach to such investigations than for other deaths, that would still not answer the key point: no such investigation can have the same deterrent effect as the possibility of criminal conviction—of prosecution. One of the important purposes of the new offence is not merely to establish what happened in the past, but to protect lives by preventing deaths from happening in the future. Ideally, there will never be any prosecutions under the Bill, as it will serve what I consider to be its prime purpose: to prevent avoidable, unnecessary deaths from happening in the first place.
The Government’s second argument is that criminal investigations are disruptive and costly and impose a resources burden on the Crown. But that concern with price belittles the importance of what is at stake. The purpose of the offence is to protect life. As I have said, in any event prosecutions will be possible only in cases of gross negligence which, even given the scale of the problem, will be a small fraction of cases, so the resource implications cannot be overwhelmingly great. If it is justifiable to impose a burden on private companies by introducing a criminal offence that applies to them in respect of deaths caused by gross negligence, it must equally be justifiable to impose that burden on the Government, especially for deaths in custody.
That exemption would apply, however, not only to prisons run by the Government, but to private custodial corporations. There is even less justification for allowing them to escape liability. Recent concerns over the treatment of children in privately run secure training centres—STCs—particularly after the death of 15-year-old Gareth Myatt in an STC earlier this year, and the findings of the Carlile inquiry into the use of physical restraints, solitary confinement and forcible strip-searching of children, highlight the need for proper accountability for privately run institutions, as well as for publicly funded ones. I suggest that they should also be brought within the ambit of the deaths-in-custody amendments.
Why are the Government proposing this exclusion? I believe that the real reason is that it is the result of horse-trading within the Home Office. The Prison Service was clearly worried about the risk of prosecution, given its poor record, but it was not faced down, nor was it pushed to make improvements in its practices and procedures to ensure that prosecutions could not follow; we might well be able to insert a provision to state that the clause will not come into effect until the Prison Service has had time to get its act together. The Prison Service should get its act together, because if all proper steps to avoid deaths in custody have been taken, there would be no prosecutions. Instead, the Prison Service will be let off the hook, pure and simple. It has even been suggested to me that if these amendments are agreed to, the Government might withdraw the Bill. The Prison Service seems to have more clout with the Government than this House.
It is clear to me that the exclusion of deaths in custody from the scope of the new offence lacks any principled justification. It also exposes the UK to the likelihood of a finding by the European Court of Human Rights that our laws fail to do enough to protect the right to life. As my Committee found, the European convention on human rights requires states to allow for the possibility of criminal prosecution where a death has been caused by a serious management failure in a public body. Unless the Bill is amended to make that possible, it is only a matter of time before another tragic case such as those of Christopher Edwards and Zahid Mubarek leads to condemnation from the Strasbourg court—and more importantly, before such avoidable deaths are inevitably repeated.
Of the deaths that occur on average every other day in our prisons, mental institutions and custody suites, those that are culpable owing to gross negligence should be subject to this Bill’s provisions, if we are to get the Prison Service and other organisations to treat their duty to such vulnerable people more seriously than they appear to do at present.
As the hon. Member for Hendon (Mr. Dismore) will be aware, the official Opposition and others have signed his amendment No. 3. In addition, we have tabled amendment No. 16. There is a minor difference from the wording of the hon. Gentleman’s amendment, but it clearly states that the Bill should encompass
“the management of a prison, young offenders’ institution, police custody unit, immigration accommodation centre or any other place of lawful detention.”
The hon. Gentleman has clearly explained the arguments in favour of the proposed move, and I do not wish simply to repeat what he has said, but there is one angle that can be looked at in greater detail: the concept of custody. As the word implies, it means entrusting somebody or something to somebody else. Although we often use it in the context of punishment in prison, there are many instances in which it does not imply punishment at all. A person detained on remand may be, and often is, detained for their own protection; that is one of the grounds on which remand can be ordered before trial. In some cases, custody of an individual is required not only for punishment but, for some young people, because of the need to rehabilitate them. That is one of the primary reasons why it is ordered.
If something goes wrong and a person dies while they are in custody, that is a serious matter. Those who have custody of that person might not always be at fault; people do commit suicide, however vigilant individuals are. People might suffer accidents in custody that are not anybody else’s fault. However, as the hon. Gentleman has rightly said, we have ample evidence that many deaths in custody are entirely preventable and are caused in part by neglect or, as in one of the cases he highlighted, because decisions are taken that have an element of deliberation in the attitude of prison officers to those in their charge, which is reprehensible in the extreme. I am thinking in particular of someone who is killed by a fellow inmate in their cell.
I know that the hon. Gentleman and my hon. Friend the Member for Hendon (Mr. Dismore) are making a point about the Mubarek case and the Christopher Edwards case, but the hon. Gentleman said that there was evidence of many such deaths in custody, and I hope that he will share with us how many there have been, because I believe that the vast majority of deaths in custody are suicides and are very often unpreventable.
Let me make my position clear. I believe that the Prison Service does its best in often difficult circumstances and, of course, it often has custody of people who are mentally unstable or who have personality disorders. I know from visiting prisons that that can be an extremely difficult matter. I fully acknowledge that many who commit suicide do so despite a lot of care having been provided to try to prevent that from happening. The two cases cited of people having been killed by fellow inmates are, mercifully, fairly exceptional events—although that does not make them less regrettable. However, there is at least some evidence that even within the provision possible in the prison system there are failures that lead to inmates’ suicides.
Let me make the position clear to the Minister. The Minister has made the point that the test for corporate manslaughter is a high one. Let me read out again the test for establishing corporate manslaughter:
“if the way in which its activities are managed or organised—
(a) causes a person’s death, and
(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.”
When the Prison Service or police officers have an individual in custody, they owe a duty of care to them, and that applies to any organisation that has custody of another human being, yet the Government have decided to craft a deliberate exemption to take a group of people to whom the state owes very particular duties entirely out of that system. In doing so, they have said that it is all right to do that, because if something goes wrong there is searching scrutiny and inquiry.
I acknowledge that there may often be searching scrutiny and inquiry, but that gives rise to a question that the hon. Member for Hendon raised very well. In many industrial accident cases, the Health and Safety Executive goes to great lengths to prepare a voluminous and detailed report, but that does not in itself mean that prosecution of the organisation in question should not take place as well. At the end of the day, the Minister and I differ on this point. If we are to have a corporate manslaughter offence, I cannot think of a good reason why the Prison Service, the police or any other organisation that detains people in lawful custody should be exempt from its provisions.
I am very grateful to the hon. Gentleman for that intervention. I do not have the precise figures, but that ties in with my recollection. We are not talking about one or two such cases a decade. There is a consistent pattern of suicide in prison, for which no blame can attach to anybody. [Interruption.] There is no point in the Secretary of State huffing and puffing; he should look carefully at the figures. The key issue is that there is a consistent pattern of instances of suicides in prison that were deemed to have been preventable. However, just because something may have been preventable does not necessarily mean that it should lead to a corporate manslaughter charge. What I am saying is that there can be no philosophical or rational justification for exempting Government Departments from the possibility of culpability in this field, particularly in view of what custody actually is.
I do not want to break the spirit of our discussions, but the hon. Gentleman said that there is evidence of many such cases, whereas my hon. Friend the Member for Hendon said that there have been 15 in the past 15 years. Unfortunately, on average there are 200 deaths a year in prisons, but that is not many in the context of a prison population of 79,000 and the number of people who go through prison. The hon. Gentleman is right to make his points and I understand and agree with what he says about the duty of care, but it is not right to say that there have been many such cases.
I regret slightly the fact that the Minister and I are disagreeing when a disagreement does not really exist. I have never suggested that there is a massive problem with our prison system whereby a large number of people are dying unnecessarily. However, 15 preventable deaths—if we can now agree on that figure—if they were preventable, is 15 too many.
I find it slightly odd that in addressing the House on the need for a corporate manslaughter provision the Minister pointed out the number of deaths that occur in the construction industry, for example. Big construction industry companies employ thousands of people, and we are talking about the deaths of one or two employees over a five-year period, but I doubt whether the Minister would ever use that as a justification for exempting the construction industry from the Bill’s provisions. If such exemption is to apply to the construction industry, I should point out that he has yet to make the case—I shall listen to him in a moment, however—as to why the Prison Service, the police or anybody else who detains people in lawful custody should be exempted. As I said earlier, the detaining of people in custody puts a peculiar responsibility on such organisations to ensure that they do not suffer preventable harm when so detained. For those reasons, the hon. Member for Hendon makes a cogent argument. I am happy to give way again to the Minister if he wants me to.
I am grateful to my hon. Friend. Does he agree that the public would find it much more reassuring if the Government said that they have sufficient confidence in the Prison Service and that they believe that it does a good job in the vast majority of cases, but that, on those very rare occasions when a terrible misjudgment or gross negligence takes place, those responsible do not deserve protection?
I agree entirely with my hon. Friend. I find the Government’s defensiveness on this issue curious.
Let us be clear: I very much hope that a time will come when my own party is in government. I have no idea where my destiny will be—it might be the Back Benches or outer darkness—but my colleagues and anybody who holds ministerial office, particularly in the Home Office, would, if the amendment were accepted, have to face the consequences of it. One consequence would be that the Prison Service or the police might have to plead guilty to corporate manslaughter as a result of the death of somebody in their charge. I am completely comfortable with that prospect, which would not bring the operation of the police or the Prison Service to a halt. It might mean that careers at the top end of the Prison Service—or, indeed, at ministerial level—come to a halt, but that is not necessarily the worst thing that could happen in the great scheme of things. One has to face the fact that that is precisely what the Minister intends in respect of directors, as we know from our previous discussion of certain companies.
If the amendment were accepted, public confidence would be increased. If the general standards that have prevailed through Governments of all parties in the operation of custody are maintained, the chances of such a situation arising would be very slim. However, where it is clearly shown that there has been a corporate failure leading to death in custody, I cannot think of a good reason why a prosecution should not follow.
May I help the hon. Gentleman as he tries to understand why the Government are so reluctant to accept the amendment? He might think that I am being cynical, but when a death in custody occurred that should lead to such an offence, not just the Prison Service management or the police would be criticised, but the Government of the day and Home Office Ministers. Ministers and their Whitehall civil servants do not want the amendment, because they do not want the bad publicity. I hope that the hon. Gentleman agrees that that is a very bad reason for their refusing this amendment. Such an incentive is the way to ensure that we sort out the problems that exist in these public services.
I agree with the hon. Gentleman, and it is also worth pointing out that public policy decisions have the protection of clause 3. This is no different from any other area of Government activity. It is for the Minister and the Government to make the case why this extraordinary exemption should apply to an area where, most particularly and peculiarly, the Government and their Departments have a special responsibility. That case has not been made, however.
I do not know what will happen in this House if we divide on the amendment—as I hope we will, because this matter has to be put to the test—but it is clear that the Bill must go to the other place, where there is a tide of opinion contrary to the Government’s current position. As the Bill has been consensual in many respects and is all the better for it, it is all the more important that we try to achieve in this debate a meeting of minds on what is a very serious issue. I can only reiterate that the hon. Member for Hendon and all the other Members who have said that corporate manslaughter should be possible in this context are right. I very much hope that the Government can be persuaded of that.
I am taking the unusual step of making my contribution now because I may not have an opportunity later, and my hon. Friend the Member for Hendon (Mr. Dismore) and the hon. Member for Beaconsfield (Mr. Grieve) have asked me to explain the Government’s position. I am pleased that we have the opportunity to discuss the issue in more detail than we did in Committee—where it was dealt with fairly quickly and without much controversy. However, I recognise that it needs to be addressed.
In Committee, I said that deaths in detention environments are covered in important ways, and because I did not have the opportunity to detail those in Committee, I want to talk about that in a bit more detail now. In particular, I wish to highlight that the new offence will apply to the sorts of fatal incidents that this offence was originally intended to cover, when first conceived, in the context of proper management of health and safety. Throughout the discussions of the Bill, we need to keep a clear focus on that underlying objective—to take the health and safety agenda one step on and make improvements in the proper management of health and safety matters.
The deaths of people in detention, or of those working in detention environments, will be covered when the state of the workplace itself or use of equipment in the building is the cause of death. For example, a death caused by the failure of fire-fighting equipment or the failure of a fire door would not be excluded from the scope of the offence. Similarly, a death caused by faulty equipment in a workshop would not be excluded. Other deaths are also within the scope of the offence, such as deaths arising from gross failures in food hygiene. Such deaths are rare in prisons, as they are in the majority of workplaces.
Deaths that are not covered by the Bill are those that arise because of the way offenders are managed in prison. We are not talking about safe buildings or safe practices for carrying out dangerous activities, or the negligent use of dangerous equipment. We are talking about deaths that are connected to the very fact that a person is in custody. The majority of those are, as the hon. Member for Beaconsfield pointed out, suicides or, far less frequently, overdoses that unexpectedly prove lethal, and rarely they are the result of the violence of others. That is why I made the point about numbers.
The Government are deeply concerned about such deaths and treat all deaths in custody very seriously, as they do the whole issue of safety in custody. To take just a few examples, the Prison Service has in place a strategy to reduce prison suicide and has achieved a sustained reduction in suicide rates, most likely as a consequence of that work.
The safer custody programme, which ran from April 2001, was a risk-based strategy focusing on the riskiest prisoners in the riskiest prisons, with a holistic approach to preventing suicide among those most at risk of suicide, especially early in custody. Its key achievements included an investment of £26 million allowing physical improvements to be made at six pilot sites; the development of a new reception screening process so as to better identify those prisoners with mental health needs, in liaison with Prison Health; the development of a new care planning system for at-risk prisoners known as ACCT or assessment, care in custody and teamwork; the development of independent investigation systems through the prisons and probation ombudsmen; the development of safer prison design, including safer cells; the recruitment of approximately 600 mental health professionals to do in-reach work; and suicide prevention co-ordinators—SPCs—or equivalents, now operating in all prisons.
I make those points because my hon. Friend the Member for Hendon accused the Government of not trying to avoid deaths in custody and of running away from the issues, and the hon. Member for Beaconsfield spoke about many deaths. I am trying to describe the position.
My hon. Friend the Minister is right to describe what has been happening in the Prison Service. It is equivalent to what has happened in the NHS in an attempt to reduce deaths from clinical error. However, the Bill means that if a hospital fails to supervise its doctors effectively, it can be convicted of corporate manslaughter. What is the difference between that institution and a prison, another public institution that needs to be competently run according to the test laid down in this legislation?
I do not mean to be insulting in any way, but I would have hoped that my right hon. Friend would know the difference between the situation in the health service and the custodial position, in terms of the difficulties and complexities of custody. The custodial environment deals with difficult people.
All such environments are complex and difficult, which is why there is a high threshold for conviction. Does my hon. Friend accept that a number of those who die in custody have not been convicted of an offence—they die in police custody or on remand? Therefore, they surely have the same rights to protection under the law as any other innocent person would in any other part of their life.
My right hon. Friend makes the point that people should expect the same protection, but we are talking about different environments, and that is the difference. The hon. Member for Beaconsfield talked about what he would expect a future Conservative Government—God forbid—to do, but this is the first Government to consider removing Crown immunity and my right hon. Friend should acknowledge that.
The question that the Minister has to answer is why should a public body be able to kill someone by acting in a grossly negligent way and avoid criminal prosecution? The jury and the court can take account of the circumstances, but if there was gross negligence, prosecution should be possible.
We believe that that opportunity exists in terms of the recommendations that can be made with regard to the public sector, especially for prisons by the independent inspector of prisons. Listening to hon. Members this evening, one would think that lessons are never learned or that the Government and the Prison Service do not try to improve the situation.
There is a difference between what happens in a custodial situation and what happens in other areas. We believe that the requirements that we are making of the private sector bodies, such as the construction industry—in terms of their role as employers or occupiers—are the same that will be made of the Prison Service. We are being asked to go a step further in terms of the custodial position, and we do not accept that.
I find those distinctions untenable. A corporate body that builds and tests aircraft, often at the limits of technology, is working in a difficult environment that may be threatening to an employee flying the aircraft. The company faces the possibility of being charged with corporate manslaughter if it is grossly negligent in the way in which it handles the issue. However, the Prison Service, another challenging environment, is to be entirely exempt. All that is being asked is that, subject to the difficulties it faces in its challenging environment, it should stand up and justify its decisions and, if it is grossly negligent, it should face the consequences. Anyone listening to this debate will be left with the unpleasant sensation that the Government are prepared to criminalise others, but when it comes to the essential services that they have to provide, albeit in challenging and difficult circumstances, they wish to provide special protection. That must be a very bad way to proceed with criminal justice policy.
The hon. Gentleman is entitled to his opinion but he is entirely wrong. In terms of the Bill, the Government are acting in three ways—as an employer, an occupier and a provider of goods and services. If the hon. Gentleman’s logic was followed through, the same principle would apply to the armed forces. To be consistent, his argument would have to apply to officers and members of the armed forces. Am I right or am I right?
As the Minister knows, we looked at the issue in respect of the armed forces in some detail in Committee, and it is not an easy one. I found the Minister’s arguments more persuasive in that context, precisely because the armed forces consist of volunteers who have elected to work in a challenging environment. It is not a matter with which I am entirely comfortable, as he knows from our debates in Committee, but it bothers me far less than the exemption we are discussing.
If the position is as my hon. Friend describes, and the Government never intended the Bill to cover deaths in custody, will he explain why the Government responded to a recommendation from my Committee on deaths in custody by referring to the possibility of a draft Bill to deal with serious management failures?
My hon. Friend cannot have it both ways. He asked us to consider things, so we considered them and came to our conclusions. He does not support our conclusion, but that does not mean that we did not consider the matter, just as we have considered suggestions throughout the Bill’s progress. Indeed, the hon. Member for Beaconsfield will acknowledge that I have not only listened to suggestions, but also made proposals in response to such considerations, so I do not accept the challenge put by my hon. Friend the Member for Hendon.
We are doing all we can to reduce deaths in custody. We are not satisfied that the measure has a role to play in prisons, as I outlined, because they are unique environments.
I am new to the Bill, but I have been listening carefully to the Minister’s argument. He seems constantly to return to the difficulty of the prison environment and the Government’s willingness to improve it to mitigate the problems. However, that seems to accept the fact that the gross breach of a duty of care is an absolute measure. It is not; it is relative to the circumstances that apply in each case. If the Prison Service is working in difficult circumstances and doing the best job it can it will not be guilty of a gross breach of a duty of care, so the Minister’s argument does not make sense.
It does make sense, and the hon. Gentleman makes the case for me when he talks about the environment in which the Prison Service operates. He is entitled to a point of view opposed to mine, as are all Members—[Interruption.] We must agree to disagree. It is no good the hon. Member for Kingston and Surbiton (Mr. Davey) putting his head in his hands, although as he is a Liberal Democrat I can understand why he might want to. There is a difference between us.
As I said at the outset, we are trying to make sure that the Bill meets the requirements that we are all trying to achieve. Deaths in custody are unique and difficult, because of the environment, for the reasons I outlined, but there is scope in the legislation, if the Prison Service operates within the three parameters that I described.
I am happy with our position. The instruments available—public inquiries and public scrutiny of the Prison Service through independent inspectorates and by recourse to the House through questions—mean that we can, and do, respond when there are problems. It is wrong to take the focus that Opposition Members and my hon. Friend the Member for Hendon have taken, because we are the first Government to look at removing Crown immunity in those areas. That is a significant step forward and I hope that the House will support it. The subject obviously creates a great deal of emotion and I am sure that we shall return to it in future.
The Minister has just said that he is proud of the fact that the Government have introduced the Bill and that they are trying to remove various Crown immunities. As he knows, both sides of the House have congratulated the Government on that initiative, but this is Parliament’s first chance for more than a century—if not longer—to look at a Government’s proposed legislation on the matter and to try to take it further. As the Government have given us that chance, it is incumbent on Members to see whether the legislation can be improved, but I am sorry to say that the Minister’s reply to the debate so far has been less than convincing.
As my hon. Friend the Member for Somerton and Frome (Mr. Heath) said, relativity is at play here. The counsel, the court, the judge and the jury will take account of difficult circumstances and if the Government are keen to build such a requirement into the Bill, they can do so and make it absolutely clear that the jury should take account of difficult circumstances, whether they be resource constraints or the difficult people who seem to be confined at Her Majesty’s pleasure. That should not be an excuse, but a defence against a prosecution of corporate manslaughter when gross negligence has occurred.
I know that the Minister did not like it when I intervened on the hon. Member for Beaconsfield (Mr. Grieve) to explain why I thought that the Government were proceeding in this way, but I have to say that my explanation is true. I have known people who have worked for the Government in the press office of the Prison Service. I am well aware of how much they come under attack and how Home Secretaries have, quite understandably, sought to close down stories because it is difficult for the Government when certain stories arise. There is the famous example of a former Home Secretary, the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) who, when pressed on these matters by a certain Jeremy Paxman, refused to answer on many occasions. He was put in a difficult position, but that is what should happen. Ministers should be put in difficult positions so that they can come up with the policies required to bring about improvement.
The Government argument seems to be that there are plenty of accountability mechanisms—the inspectorate and so on—so we do not need the type of accountability for which we are calling. If that were the case and if inspectorates, ombudsmen and other forms of accountability were the answer to improving public services, our public services would be the best in the world—but we know they are not. When Ministers go to their beds at night, they will admit that, in some cases, there is massive room for real improvement. One of the advantages of getting rid of Crown exemption is that it creates the sort of dynamic in the system that will spur people on to much greater efforts. When it comes to death through gross negligence, those efforts really should be stimulated further.
The hon. Member for Hendon (Mr. Dismore) and the hon. Member for Beaconsfield put the rest of the arguments well and I look forward to hearing what the right hon. Member for Southampton, Itchen (Mr. Denham) has to say. I am pleased to see the Home Secretary in his place; Ministers must listen to the weight and force of the arguments on both sides of the House. If Ministers and the Government try to resist us and do not give way tonight, the other place will take our remarks very seriously and this matter will be brought back before the House.
I hope that Ministers will take account of feelings on this issue. Amendments have been proposed this evening by two Select Committee Chairmen who are occasionally troublesome priests, but not generally so, for the Government. The amendments reflect the considered positions of entire Committees taken unanimously across party rather than any individual point of view. I hope that the Government will listen and respond.
I was a Minister with responsibility for policing for nearly two years, so I was responsible for the accountability side of deaths in police custody. Since then, I am pleased to say that deaths in police custody have continued their downward trend. As a former Minister, I see no great difficulty of principle for Ministers in conceding the charge for which many have argued this evening. Real improvements were made in dealing with deaths in custody through good management in the police service. It came about through management pressure and political pressure above that and it was about training, supervision and so forth.
None the less, it was still possible to meet custody sergeants who had been in the job for two years and had never been trained in the responsibilities of that role. Thus, if someone died in custody, should those officers really be held accountable for that death when no one had taught them how to do their job? One of the advantages of enacting legislation to cover deaths in custody is that it provides a focus for people who are unwilling or too slow to change in that crucial area of responsibility. I think that that would be to the good.
When the Joint Committee considered the Bill, it was no coincidence that the Police Federation was in favour of including deaths in custody within the legislation. It was seen as a strength in the Police Federation’s trade union and representational role, helping it to secure the support that it wanted from senior management.
I do not wish to repeat the points that have been well made by other hon. Members, but I shall stress a couple of them. In the police service and in the Prison Service custody is increasingly provided by private sector companies. The political, with a small p, difficulties of explaining why a private company operating in that sector is not subject to the legislation when all other private sector companies are subject to it will prove impossible to Ministers in the future.
I want to acknowledge the work that has been done in the Prison Service. Last autumn, Baroness Scotland appeared before our Select Committee to talk about prison suicide work, and she gave a very impressive performance. None the less, everyone recognises that the culture needs to change further and faster than it has done so far in the Prison Service, and changing the law on this issue will help. None of the alternative routes of accountability supplies what the public need.
As my hon. Friend the Member for Hendon (Mr. Dismore) said, the organisation, Inquest, has pointed out that, since 1981, no inquest that involved a verdict of unlawful killing has resulted in anyone being convicted of manslaughter or worse crimes. We must remember that, although our prisons undoubtedly contain some of the most unpleasant, dangerous and straightforwardly evil people, they also contain some of the most frail, vulnerable, weak and sick people, and we owe them the duty of care that such a change would bring.
I believe that a number of things will follow if changes to these clauses are not accepted tonight. First, it is inconceivable that the coalition of interests in another place that persuaded the Government to change their mind about the independent prisons inspectorate will not send the issue back for us to look at again. However, I do not intend to press my amendments to a vote; the debate is a way of telling the Government that they need to get into discussions about how to handle the issue.
Secondly, our experience is that, if the House does not put in place a proper legislative framework, the courts will make one for us. I have shared with my right hon. Friend the Home Secretary some interesting discussions about the role of activist judges in the broader political environment, but we cannot criticise judges for stepping in if we leave a vacuum. The reality is that, if there is no proper procedure to investigate and prosecute in cases of corporate manslaughter when people are in custody—bit by bit, case by case—a range of human rights law will emerge without criminal convictions, but with demands for compensation payments, changes to procedure and all the rest of it, and the Home Office will find that equally embarrassing and equally uncomfortable.
There is a strong feeling in the House that the Government have not got this issue right, and I hope that, between now and discussions in another place and perhaps when the Bill returns to the House, there can be further discussions about a satisfactory way to ensure that deaths in custody are properly investigated and that those who are responsible to the high level of test in the Bill are held accountable.
So far tonight, my hon. Friend the Minister has shown a degree of flexibility, good humour and a willingness to listen and take away issues for consideration, but there has been no flexibility or willingness to listen whatsoever on this group of amendments. I am afraid that that leaves me rather worried, particularly as we have heard no logical argument from him about why the offence should not apply in these circumstances, other than that prisons are different. As has been mentioned in the debate, there are many reasons why the offence should apply to other things that are equally difficult and dangerous.
I mentioned in an intervention that 15 cases had been identified over the past 15 years—one a year—where such an offence might have been committed; but it does not necessarily follow, of course, that each of them would have been prosecuted or a conviction secured. So, we are talking about a small number of cases, but an important principle: that of trying to avoid unnecessary deaths. That is not to belie the efforts that the Home Office and the Prison Service have made in reducing deaths in custody—far from it—but a problem still remains.
I suggest that one way forward would be to table amendments of this nature with a hiatus in relation to when they come into effect, to allow those improvements to continue until we can be absolutely certain that there is not a problem. I asked my hon. Friend the Minister—if that was going to be the Government’s attitude—why the Joint Committee on Human Rights recommended that the offence of corporate manslaughter should apply to deaths in custody. The reply was that the Bill would be brought forward and that it would reflect the problems of management failure. If that is the case, what has changed between then and now? That recommendation was made only two years ago and prisons are still pretty much the same as they were then—in fact, there has probably been some improvement.
My right hon. Friend the Member for Southampton, Itchen (Mr. Denham) has said that if we do not deal with things in Parliament, the courts will. I mentioned two cases—the Mubarek case and the Edwards case—where the courts took that particular view. We will see more of those sorts of cases. It must be far better for Parliament to legislate than to leave it to the judges to do it for us.
As has been said repeatedly in the debate, even if we do not push the matter to a vote—I see little point in doing so, because I hope that the Government will reflect on what has been said—inevitably an amendment will be introduced in another place, it will come back to us for a decision and we will have to have a vote at that stage. I hope that in the interim my hon. Friend the Minister will consider whether a reasonable compromise can be reached as a way forward. There is space to move. If he does not, an amendment will be tabled in another place.
Given the strength of the arguments tonight, it would be a bit of a cop-out to say, “But we don’t feel strongly enough to put this to a vote in this Chamber and let this Chamber make its mind up on the matter.” This is truly a matter of judgment. It is the Government’s judgment that for two reasons—the circumstances of custody and the level of scrutiny already existing—this matter should not be included. Of course, it is possible to argue that everything, including the armed forces, which Members on the Opposition Front Bench are pointing towards, should be included. We take a different view. That view has been laid before the House and the House should express an opinion on it.
I have listened to what my right hon. Friend says and if he wants to call a vote, I shall accede to his request. I had hoped that, in the spirit of compromise and discussion that has existed throughout the consideration of the Bill, we would be able to look at this issue to see whether there is another way forward as the Bill goes to another place. However, if he says that we should have a vote, so be it.
Question put, That the amendment be made:—
It being after Nine o’clock, Mr. Deputy Speaker put forthwith the Questions necessary to bring proceedings on consideration of the Bill to a conclusion, pursuant to Order [10 October].
Meaning of “relevant duty of care”
Amendments made: No. 47, in page 2, line 30, at end insert—
‘( ) A reference in subsection (1) to a duty owed under the law of negligence includes a reference to a duty that would be owed under the law of negligence but for any statutory provision under which liability is imposed in place of liability under that law.’.
No. 48, in page 2, line 33, at end insert—
‘( ) For the purposes of this Act there is to be disregarded—
(a) any rule of the common law that has the effect of preventing a duty of care from being owed by one person to another by reason of the fact that they are jointly engaged in unlawful conduct;
(b) any such rule that has the effect of preventing a duty of care from being owed to a person by reason of his acceptance of a risk of harm.’.
No. 49, in page 3, line 16, at end insert—
‘“statutory provision” means provision contained in, or in an instrument made under, any Act, any Act of the Scottish Parliament or any Northern Ireland legislation.’.—[Huw Irranca-Davies.]
Amendment made: No. 50, in page 4, line 8, after ‘in’ insert ‘the course of’.—[Huw Irranca-Davies.]
Policing and law enforcement
Amendment made: No. 51, in page 4, line 30, leave out subsection (2) and insert—
‘( ) Operations are within this subsection if—
(a) they are operations for dealing with terrorism, civil unrest or serious disorder,
(b) they involve the carrying on of policing or law-enforcement activities, and
(c) officers or employees of the public authority in question come under attack, or face the threat of attack or violent resistance, in the course of the operations.’.—[Huw Irranca-Davies.]
Amendments made: No. 52, in page 5, line 10, leave out ‘(or circumstances believed to be emergency circumstances)’.
No. 53, in page 5, line 18, leave out ‘(or circumstances believed to be emergency circumstances)’.
No. 54, in page 5, line 31, at end insert—
‘(2A) For the purposes of subsection (1), the way in which an organisation responds to emergency circumstances does not include the way in which—
(a) medical treatment is carried out, or
(b) decisions within subsection (2B) are made.
(2B) The decisions within this subsection are decisions as to the carrying out of medical treatment, other than decisions as to the order in which persons are to be given such treatment.’.
No. 55, in page 5, line 33, leave out ‘(or circumstances believed to be emergency circumstances)’.
No. 56, in page 5, line 47, at end insert—
‘“medical treatment” includes any treatment or procedure of a medical or similar nature;’.
No. 57, in page 6, line 14, at end insert—
‘( ) A reference in this section to emergency circumstances includes a reference to circumstances that are believed to be emergency circumstances.’.—[Huw Irranca-Davies.]
Child-protection and probabation functions
Amendments made: No. 58, in page 6, line 21, at beginning insert ‘Parts 4 and 5 of’.
No. 59, in page 6, line 23, at beginning insert ‘Parts 5 and 6 of’.
No. 60, in page 6, leave out line 24.—[Huw Irranca-Davies.]
power to order breach etc to be remedied
Amendments made: No. 61, in page 7, line 33, at end insert ‘(“the relevant breach”)’.
No. 62, in page 7, line 34, leave out second ‘that’ and insert ‘the relevant’.
No. 63, in page 7, line 35, at end insert—
‘( ) any deficiency, as regards health and safety matters, in the organisation’s policies, systems or practices of which the relevant breach appears to the court to be an indication.’.
No. 64, in page 7, line 36, leave out ‘this section’ and insert ‘subsection (1)’.
No. 65, in page 7, line 41, at end insert—
‘( ) Before making an application for an order under subsection (1) the prosecution must consult such enforcement authority or authorities as it considers appropriate (having regard to the nature of the relevant breach).’.
No. 66, in page 7, line 42, leave out ‘this section’ and insert ‘subsection (1)’.
No. 67, in page 7, line 43, leave out ‘subsection (1)’ and insert ‘that subsection’.
No. 68, in page 8, line 2, at end insert—
‘( ) In this section—
“enforcement authority” means an authority responsible for the enforcement of any health and safety legislation;
“health and safety legislation” has the meaning given in section 8(5).’.--[Huw Irranca-Davies.]
Transfer of functions
Amendments made: No. 69, in page 10, leave out lines 42 to 44 and insert—
‘This is subject to subsection (3A).
(3A) If an order made by the Secretary of State so provides in relation to a particular transfer of functions, the proceedings referred to in subsection (3) may be instituted, or (if they have already been instituted) may be continued, against—
(a) the organisation mentioned in subsection (1), or
(b) such relevant public organisation (other than the one mentioned in subsection (1) or the one mentioned in subsection (3)(a) or (b)) as may be specified in the order.’.
No. 70, in page 11, leave out lines 8 to 10 and insert—
‘This is subject to subsection (4A).
(4A) If an order made by the Secretary of State so provides in relation to a particular transfer of functions, the proceedings referred to in subsection (4) may be continued against—
(a) the organisation mentioned in subsection (1), or
(b) such relevant public organisation (other than the one mentioned in subsection (1) or the one mentioned in subsection (4)(a) or (b)) as may be specified in the order.’.
No. 71, in page 11, line 11, leave out ‘(3) or (4)’ and insert ‘(3A) or (4A)’.—[Huw Irranca-Davies.]
Order for Third Reading read.—[Queen’s Consent, on behalf of the Crown, signified.]
I beg to move, That the Bill be now read the Third time.
In concluding our debate on Second Reading, I spoke about how proud I was that the Bill had been introduced and, as we prepare to end our proceedings and send it to another place, I make no apology for repeating that point. It was a long time coming, but it was the product of a great deal of thought and consultation. I pay tribute to the careful consideration given to the draft Bill by the Select Committees on Home Affairs and on Work and Pensions under the chairmanship of my right hon. Friend the Member for Southampton, Itchen (Mr. Denham)—I hope that he is still my right hon. Friend—and my hon. Friend the Member for Bradford, North (Mr. Rooney). I pay tribute, too, to the Joint Committee on Human Rights, which is chaired by my hon. Friend the Member for Hendon (Mr. Dismore).
At the end of the process, the Government have delivered on their promise and brought the Bill to the House for debate. As I said, I am very proud of that. I want to put on record my appreciation of the warm welcome that the Bill has received and the constructive nature of debate throughout our proceedings. There is wide recognition on both sides of the House that the law of corporate manslaughter is in dire need of change. The hon. Member for Beaconsfield (Mr. Grieve) and his colleagues questioned whether a new homicide offence specific to corporations was the right way to proceed, and they suggested that a revision to the Health and Safety at Work, etc. Act 1974 would provide a neater solution. I acknowledge that that suggestion was made to test the Government’s approach, but this is not about neat solutions. It is not enough, in our view, to respond to the problems in the current law by removing liability for manslaughter, albeit through adaptation to other laws. We need to make a proper and specific response to very serious failings.
Given the complex nature of organisations today, in many circumstances it is not possible to lay responsibility for the failings behind a death at the door of one individual and charge them with manslaughter. Neither is it right simply to place an organisation’s failings on one person’s shoulders. That makes it all the more important that the law ensures that sanctions, such as a conviction for manslaughter, are available for use against companies, so that we recognise that what has happened is not a regulatory breach but homicide. That is the justice that those cases deserve. Our debates have dealt with key aspects of the offence in the Bill—we have examined, too, what it does not cover—and, in many ways, it leaves this House in an improved form.
At the heart of the new offences lies a highly significant shift in the way liability for manslaughter will be attached to an organisation. At present, that is bound up with the guilt of particular senior individuals. In the future, it will be about how the activities of the company were managed or organised, and whether that paid scant regard to the health and safety of employees or others. The test must also reflect the very serious nature of the offence. There will be a finding of manslaughter and it must be clear that the organisation as a whole is responsible for the offence, so the test must be one of systemic failure.
The test for the offence has been improved during the Bill’s consideration. The “senior manager” test has been removed, replaced by a wider formulation that is based on the management of the organisation’s activities. There remains a need to show a substantial failing at a senior level. We are satisfied that that gets the balance right. The question is whether the organisation as a whole failed, and a key factor in that must be the conduct or omissions of its senior management. It also means that senior management must take their responsibilities seriously or risk the possibility of prosecution.
I recognise that some of my hon. Friends would like me to go further in redefining the area of individual liability, which we discussed tonight, and to widen the circumstances in which individuals can be prosecuted and imprisoned. Our debate today considered that at some length and I have made the Government’s position clear—that the Bill is about corporate failings and corporate liability. It deals with the fact that in many circumstances it will not be possible to lay responsibility entirely at the feet of one individual, but it ensures that there will still be a recognition that the person died as a result of a homicide, for which the corporation must take responsibility.
The new offence will apply to all companies and, as a matter of course, it will apply to a good part of the public sector too, such as local authorities and NHS bodies. The Bill takes that one step further and lifts Crown immunity, ensuring that Government Departments will also be liable. This is an historic step, but it quite properly gives rise to debate about where we should draw the line between matters for which the Government should be prosecuted in the courts and matters about the carrying out of core public functions, which are covered by independent investigations and inquiries and where the Government are accountable to Parliament for their decisions. We have made it clear tonight that we consider the line to be drawn in the right place in the Bill, but that is not to say that there are no issues on which we are prepared to consider our stance further.
Another important aspect of the application of the offence is the focus on incorporated bodies, along with the Crown, and not unincorporated bodies, such as partnerships. Again, this is a matter that we touched on today and I am prepared to give it further consideration.
There is also the important question of sanctions. The offence is rightly concerned with justice and ensuring that organisations are convicted of an appropriate offence, but we are also keen for companies to change their behaviour for the future and ensure that other deaths are not caused. There has been some concern that fines are a blunt instrument for bringing about such a change. We have sought to acknowledge this by making improvements to the sort of issues that remedial orders will cover, allowing the court to require organisations to address issues that lie behind the relevant management failure. This is an area where Professor Macrory’s review of regulatory enforcement is relevant. His report, published last week, sets out a number of suggestions for new criminal sanctions. We will have to consider the detail of these.
Not at this point, but as the hon. Gentleman knows, the Government are working to put victims at the heart of the criminal justice system. We will look at the impact of the Bill on the families of victims, so it is a good point that the hon. Gentleman raises.
We will pay serious attention to the comments of Professor Macrory and consider how we can make progress on the new offence that the Bill establishes.
I pay tribute to the many positive contributions from Members in all parts of the House in debates on the Bill. I acknowledge the improvements in the Bill that have resulted, and I have no hesitation in commending the Bill to the House and wishing it a speedy passage in another place.
I echo the Minister’s sentiments in wishing the Bill a good passage. Although I said on Second Reading that there might be another way to approach the problem, I always accepted that the Government’s approach had validity. Once I had, not altogether to my surprise, failed in Committee to persuade the Government that the Bill could undergo major restructuring to rely on the Health and Safety at Work, etc. Act 1974, I was content to try to help the Government to improve the Bill. Indeed, Conservative Members are so content.
The Minister was right to say that the Government have listened during the passage of the Bill, which undoubtedly leaves this House in an improved state as regards some important and key aspects. I appreciate that some hon. Members feel very strongly about individual liability, but I am completely of one mind with the Minister in believing that it would be an improper use of the Bill to extend it in that way. Personal liability will continue in the form of the existing manslaughter offence, and that is the correct way in which to approach the matter.
I am pleased to learn from the Minister that further consideration will be given to whether other organisations should be capable of committing the offence. I appreciate that this is a difficult area, as has been evident as we have considered the detail of the Bill, but the advantages of doing this outweigh the disadvantages. Unless we bring partnerships and unincorporated associations within the ambit of the Bill, the public will have great difficulty in understanding how very large organisations with many hundreds of employees can somehow slip outside its operation.
We have discussed in Committee and subsequently the various exceptions in the Bill. That has been an extremely pleasant debate, on the whole, and I am sorry that in the lateness of this evening the note seemed to change somewhat when we came to discuss custody. I began to wonder whether the Home Secretary would have done well to heed my original suggestion to amend the 1974 Act, as he might have found that less difficult to swallow. The Government clearly find it very hard to handle the suggestion that there should potentially be corporate manslaughter liability on those who have custody of others within the criminal justice system and elsewhere, and they have excluded that from the Bill. I am sorry about that, because I am convinced that the Minister will have to revisit the matter when the Bill comes back from another place.
That was the one moment in the entire passage of the Bill when I felt that the Government were unable to make any coherent case. Even more worryingly, they seemed suddenly to resort to invective to try to suppress utterly rational argument led from their own Back Benches. I hope that in the quiet interval that occurs before the Bill arrives in the other place, they may be able to reconsider the matter and come at it from a new angle, because it will not go away. If we are prepared to impose this serious sanction on corporations in the private sector and, in some settings, on Government Departments, it is beyond my comprehension that the Prison Service, the police and other organisations in custodial settings should be exempt.
I am sorry that the Home Secretary is no longer in his place. He seemed to get very excited about the extent to which moving into custody would inevitably mean moving into military activities, but the two are plainly very different. Although one could argue for including training within the scope of the Bill, those who participate in military activities are facing the risk of death in active service settings where it would be absurd to start to look at the niceties of decisions in the context of corporate manslaughter. I hope that the Minister will pass that message to the Home Secretary, because it appeared to work him up greatly. A gentle word in his ear might reassure him on the point and persuade him to revisit the argument about custody, which he currently regrettably ignores.
It is unfortunate that, although we plainly had enough time in Committee, we failed to provide enough time on Report. We have raised such failings often. We needed two days on Report for such a Bill, and that must have become apparent when we realised how many amendments had been tabled. Nobody has filibustered in the debate this evening.
Policing and law enforcement remain another difficult matter—to my mind, more difficult than custody—but they cannot be brushed under the carpet. The actions of the police in some settings may require us to amend the Bill in another place, but we will listen carefully to the Government’s arguments about that. I do not have a closed mind on the issue and I emphasise in passing that I would not have pressed the amendment that I tabled to stimulate debate, because I was aware of its shortcomings, although it was well intentioned by the organisation that proposed it.
The Government have substantially tightened the law on emergencies, for which I am grateful. We had tabled amendments, which we had no opportunity of considering. Although I am sorry that we were deprived of the Minister’s presentation of the amendments that he tabled, I believe that they satisfy us. I shall consider them carefully. What should happen in respect of private emergency services is more problematic. I continue to be anxious that we are being unfair to such organisations, which have to make exactly the same decisions in an emergency as statutory bodies.
We have not been able to revisit child protection on Report and I appreciate the Government’s difficulty with the matter. The arguments that the Minister presented in Committee were persuasive. However, that brings us back to the central issue that, when an organisation or Department takes over someone’s care, which happens in a custodial setting or once a care order has been made, I find it especially difficult to justify exempting social services departments from the Bill. That is different from circumstances in which decisions have to be made about whether to intervene to take a child into care. They are of a slightly different nature and often extremely difficult.
We are pleased that the Government have moved on remedial orders, and we shall have an opportunity of considering that more carefully. Earlier, the Minister discussed some of them. Again, I am sorry that we have not had an opportunity for a fuller debate on them.
I do not want to take up more of the House’s time. The Bill is capable of doing good. That is why we have been happy to support it and are happy to support Third Reading. Improvement is needed and I ask the Government to continue in a spirit of dialogue and not to follow the Home Secretary’s example this evening of suddenly behaving like a scalded cat when we are happy to continue the consensual nature of our debate.
The subject is challenging but the key is that the public must be reassured that the measure will be fair and evenly applied. If it fulfils that test, it will make a powerful contribution to increasing health and safety generally. On that basis, it is worthy of support.
Let me begin where the hon. Member for Beaconsfield (Mr. Grieve) left off. In Committee and for most of this evening, there has been an attempt to reach consensus. However, the aspects of the Bill on which I seek improvements are not necessarily those that others want improved. We need to acknowledge that my hon. Friend the Minister has some difficulty in pulling everything together and achieving genuine consensus. Nevertheless, let us start from where we are.
The Bill as it leaves this House is still an improvement on no Bill at all. That is something that everyone ought to say. There is no doubt that the Bill plugs the kind of large hole in the law that ought to be filled, in recognising the many disasters that we have discussed during its course, such as the Herald of Free Enterprise, the various railway disasters and the many cases in which manslaughter takes place on so small a scale that they do not hit the national radar screen. Those cases are where we ought to legislate, because they involve the types of firms and organisations that need the legal challenge.
I hope that the many commitments that my hon. Friend the Minister has made during the Bill’s various stages will be honoured. We have, I am afraid to say, accumulated rather a long shopping list between us and, whether the issue be remedial orders, probation, naming and shaming, the role of directors or director disqualification, there probably is a wide-scale consensus that we could make some movement forward.
There are other issues that I hope the Minister will consider. There was real merit in the debates on the types of other bodies—the non-incorporated bodies—and on the amendment that the hon. Member for Hornchurch (James Brokenshire) moved about the cascading effect, particularly when we consider the new corporate structures that are becoming important and might end up being the dominant large-firm structures in this country. It would be ridiculous to pass legislation in this period only to find that it is outpaced by the speed of corporate change or, even worse, that we have given companies a perverse incentive to look for corporate forms to avoid the impact of the law. That is almost the most inappropriate signal that Parliament can ever give.
However, there are areas of concern. I hope that my hon. Friend the Minister will consider the question of exemptions. As hon. Members who took part in the debate on exemptions pointed out, there are some interesting questions about where they should and should not apply. My hon. Friend the Minister will be challenged—if not personally, then at least through his colleagues in another place—and I believe that by the time the Bill returns in some months’ time it will look a little different from what leaves us tonight. It is difficult to know exactly how the noble Lords intend to make those changes, but we all know that they will challenge the status quo that leaves us today.
I shall play my part in encouraging the noble Lords in certain directions, although they might not always be the directions that my hon. Friend the Minister wants. We can still make the Bill better. The biggest difficulty—which has been referred to, for and against, all the way through Bill’s stages—is whether we couple individual liability with the concept of corporate liability. I simply repeat for the record that the demand to bring to justice the individuals who fail to create the safety culture in an organisation as well as the corporation will continue to be made, and not only by the trade unions. My hon. Friend the Minister accused my hon. Friend the Member for Eccles (Ian Stewart) and me of speaking for the trade unions. I assure him that I never speak for the trade unions—they have to speak for themselves—but I always listen to them. When they make sense, I am prepared to use equivalent language. There are occasions on which they do not make that degree of sense, and then they have to find a different voice.
My hon. Friend says, rather unkindly, “Like Ministers, sometimes”, but not this Minister. I say that not simply because he is my hon. Friend, but because he is also my friend, which is an important distinction that we occasionally have to make in the House.
My final point is that the House is at its best on this kind of legislation—when it is serious of purpose and when, even if we cannot agree on the final conclusion, we at least have a common aim. We still have some way to go, but our aim is to provide a piece of legislation that is fit for the 21st century, and that says that corporate manslaughter is gross and unacceptable in our society and that those who are responsible for a lack of a safety culture and who allow corporate manslaughter to take place must be brought before the law one way or another, whether as corporations or individuals, and whether through the Health and Safety at Work, etc. Act 1974 or the Bill, as we shall continue to debate. The Bill is a good piece of work, but it is not yet the piece of work that we need. I hope that my hon. Friend the Minister will continue to reflect on how we need to improve it, to ensure that it is fit for that 21st-century purpose.
This is a good Bill. It deserves a Third Reading, and has been improved since Second Reading. The whole House will pay tribute to the Minister and his officials for their hard work on this Bill and for listening, for the most part, to the comments that have been made. The Minister should feel proud of what he has achieved. Obviously, he has brought his trade union background and experience to consideration of the Bill. The Bill was a long time coming, and many of his predecessors failed to bring it forward, so I pay tribute to him and his colleagues for doing that.
From Second Reading onwards, the Minister has reminded us of the many disasters, particularly in the 1980s, such as the Herald of Free Enterprise, King’s Cross, Clapham, Piper Alpha, Paddington, Hatfield, Potters Bar—there is a long list—for which this type of legislation would have been useful. Not only would it have assisted in making sure that justice was seen to be done but, arguably, had it been on the statute books before those disasters, it would have acted as a deterrent. He feels strongly that, as with the Health and Safety at Work, etc. Act, putting this sort of legislation on the statute book sends a signal to employers and directors that they must take their health and safety responsibilities seriously.
In my surgery this morning—I do a Monday morning surgery in Surbiton at 8 o’clock, if anyone is interested—a Thames waterman came to see me. He was worried that the Maritime and Coastguard Agency is watering down the licence regimes that currently apply, and that a new licence, the boat master’s licence, will not be as strong. He was concerned about the bureaucracy and inadequacy of its implementation. That brought to mind this Bill, as when such licence regimes are watered down, we need to ensure that other legislation can catch those who behave in a grossly negligent way.
The Bill is very much a step forward but, of course, it is not perfect. The Minister will probably be the first person to admit that, as he has been refreshingly honest. He has struggled and worked to try to improve the Bill. We heard tonight about the debates on custody and individual liability. Because of time constraints, we have not dealt with some issues about which I was particularly concerned, such as statutory duties. It is worrying that one can breach a statutory duty in a grossly negligent way but still be outside the ambit of the Bill, because the duty of care in negligence—the framework for the Bill and the foundation of the offence—would not necessarily apply. The Minister was concerned in Committee that tying the statutory duty offence to the duty of care offence would not provide certainty. The purpose of my amendment was therefore to show that Parliament could set down those statutory duties that should be linked to the new offence. I recommend that the Minister examine that proposal before the Bill is considered in the other place.
There is a lot of debate about the adequacy of the exemptions. The Government have been good in trying to remove the catch-all provision in relation to Crown prosecution. That is a step forward, on which they should be congratulated. However, like the hon. Member for Beaconsfield (Mr. Grieve), I still have concerns. I am worried about the child protection provisions, which, as the Minister will admit, were not in the draft Bill. The Bill has benefited from pre-legislative scrutiny and those new parts that did not have that scrutiny deserve even more attention from the Minister, his officials and the other place, with the child protection provisions probably the most significant in that regard. I am also concerned about the issue of offences being committed by an organisation based in the UK in relation to a death that occurs abroad.
Like the hon. Member for Beaconsfield, I note that Government amendments have dealt with some of the problems. On Second Reading, my hon. Friend the Member for Cambridge (David Howarth) raised the issue of the Wacker case, in which it would have been impossible to meet the duty of care test in the Bill. I am grateful to the Minister for seeking to deal with that. He also deserves credit for what he said about the emergency services, particularly in relation to medical treatment: it represented a real step forward.
Some imperfections remain, but this process has improved the Bill. I agree with the hon. Member for Manchester, Central (Tony Lloyd) that we have seen this place working at its best, and I hope that the other place will also get its teeth into the Bill. The Minister may be less keen for that to happen, but to be fair to him, outside our formal proceedings he has engaged with both Opposition parties and his own Back Benchers very constructively. He will probably be eager to use the opportunity provided by the other place to add even more innovative, progressive measures to the Bill, and I wish him luck.
On Second Reading, I said that the Bill was half-baked and we hoped to take it further. Let me now say that I believe it is baked, but baked lightly.
I congratulate the Minister and his officials on the way in which they have worked with—among others—the Opposition, the trade unions, Labour Back Benchers and families who have suffered as a result of the deaths of loved ones. This is an extremely serious subject, but we have taken what was a reasonable Bill and, collectively, made it better. My hon. Friend the Member for Manchester, Central (Tony Lloyd) mentioned a number of key issues that we would like to be addressed further. I take heart from the Minister’s warm words, and indeed his intent. I welcome his offer of support in regard to the key issue that we have still to resolve: what can sensibly be done about duties and the spectrum of penalties, perhaps through the Health and Safety at Work, etc. Act or any other relevant Act.
The hon. Member for Beaconsfield (Mr. Grieve) gave a full assessment of the Bill’s passage, and the Chairman who presided over the final Committee sitting in the last Session said that he considered both the Bill and the way in which it had been handled by all concerned to be exemplary.
I am reminded of a conference on citizenship and democracy that I chaired. The key speaker was Professor Bernard Crick. One of the sixth-form delegates—a young person—asked me for my definition of politicians. I said that I concurred with Professor Crick’s definition: politicians were imperfect people trying to run an imperfect system. The sixth-former then asked me for my definition of politics, and because I was in such eminent company as Professor Crick, I found myself developing a rather flowery definition. Politics, I said, is the art of the visionary. We all need people to push the boundaries of ideas, but the doing of politics is the art of the negotiator, and we must achieve the most sustainable and appropriate settlement in the circumstances.
I believe that tonight we have achieved the most sustainable and appropriate settlement in the circumstances. I hope—indeed, I know—that the Minister will be true to his word, and I feel sure that we shall be able to make this an even better Bill in the future.
I too congratulate the Minister and his officials on the way in which they have conducted the debate on Second Reading, throughout the Committee stage and this evening. The Bill makes a significant advance in terms of health and safety. I think that during its passage we have managed to achieve some substantial improvements, not least in the definition of the senior management test, which caused some concern on Second Reading. The Minister and his officials have worked hard to ensure that that core part of the Bill stands up in law.
I welcome in particular the fact that the new definition will allow the issue of aggregation of circumstances to be considered. That was a key element in the Transco exclusion case, where it was found that the issue of aggregation could not be dealt with under the common law definition of the crime.
The Minister has been welcoming and positive about extending the range of penalties. I look forward to hearing about further amendments to the Bill in the other place. A good point has been made about compensation orders, which we did not discuss when we looked at penalties earlier. Under the civil system, the amount of compensation or award that families receive for the loss of loved ones who were unmarried with no children and dependants is very low. In Scotland, awards are lower than in England, so that case is even more exaggerated. Therefore, compensation orders can be appropriate, particularly where there are young victims with no dependants. I hope that the Minister will consider that issue over the next few weeks.
Other hon. Members may have received, as I did today, a letter from the chair of the Health and Safety Commission, Bill Callaghan, about the 2005-06 statistics. That raises a number of interesting questions about why the Bill is so important. Mr. Callaghan indicates that the Health and Safety Commission is largely on track to meet two of the three targets: reducing the incidence of work-related ill health by 20 per cent. by 2010; and reducing the number of working days lost per worker due to work-related injury and ill health by 30 per cent. by 2010. Unfortunately, the figure for reducing fatal and major injuries shows “no clear change”.
That suggests that the way we approach the issue of fatal and major injuries is different from our approach to the issue of improving ill health statistics. Last year, 212 workers were killed at work, 32 of whom were in Scotland. Again, unfortunately, Scotland is above the United Kingdom average in terms of fatalities. It has remained so almost throughout the last decade, which reiterates the force of the case for the strongest possible co-operation between the Government, the Health and Safety Executive, the Health and Safety Commission and the Scottish Executive, who are in control of the prosecution system in Scotland—prosecutions are brought by the procurator fiscal and not by the Health and Safety Executive—to ensure that that statistic, as well as the overall figure for the entire UK, is reduced.
We have gone quite a considerable way with the Bill. It is an important marker for many families in terms of hope that we may be able to reduce significantly the number of fatalities over the next few years. Again, I thank the Minister for having the good grace to listen to everyone in the debates over the past two weeks.
I also congratulate my hon. Friend the Minister on the good humour with which he has conducted the debates, apart from perhaps the debate on the last group of amendments, when it got rather silly—[Interruption.] The Government’s approach got rather silly, which was not necessary in my view, but there we are. I have appreciated the fact that he has approached the debates with his usual good humour.
To continue the culinary analogy of my hon. Friend the Member for Eccles (Ian Stewart), I do not talk about the Bill being baked or half-baked. We started with a Bill that was a cup half empty and now it is slightly more than half full. However, there is still a lot more to be done. The Government must be congratulated on making some major changes, particularly in relation to Crown immunity, which is a huge advance in the criminal law. However, that is hedged with an extremely large number of cautious exemptions, not least the one that we have just debated, which takes some of the shine off the ball.
I have been campaigning on the issue of corporate manslaughter for almost 20 years since the King’s Cross fire. In practice during that period, and before, I dealt with many cases of people whose husbands or fathers had been killed and where families had been left bereaved. For me the test is: if I apply the Bill to the cases where I thought there was gross negligence, would prosecutions have followed? In some cases they would, but in others they would not.
I hope that as the Bill progresses my hon. Friend the Minister will look not only at the amendments he has agreed to take up, but at some that we did not have sufficient time to debate tonight. Some of them are important and raise significant issues. For example, I was involved in representing the families caught up in the Zeebrugge ferry disaster, and I raised in an intervention the question of jurisdiction. If a similar disaster were to happen today, the chances are that the vessel would bear a foreign flag even if it were run by a UK company and that it would therefore be outwith the terms of the Bill. That must be looked at. Similarly in relation to the King’s Cross fire and the definition of senior management, there would still be a strong chance that the senior management of London Underground Ltd would escape prosecution given what I know of the detail of the circumstances revealed in the 93-day public inquiry into that fire. To deal with that we should, for example, look at the amendment on particular locations that was not moved. If any of the great disasters and tragedies that we have debated were to occur again, it would be a great shame if they would still not be caught by the amendments and other changes that we want to make to the law.
I also wish to raise a question to do with the emergency services, which was not brought up. In my previous life as a solicitor, I represented the Fire Brigades Union and, latterly, the Police Federation. There is a case for not excluding training accidents. The purpose of emergency training should be to enable people to make mistakes in safety, not to be exposed to unnecessary dangers. That needs to be looked at again.
I am still concerned about the question of individual liability. If we are serious about preventing accidents the best way to concentrate the minds of senior management is for them to think that they might appear in the dock alongside their companies. We have not achieved that yet. To remedy that, I hope that we can do some inventive thinking around the Health and Safety at Work, etc. Act 1974, and in particular around section 37, because the public expect justice. If people see those who have made fortunes from businesses that have resulted in individuals being killed walking away with those fortunes and not paying the price that they should, they will feel that they have had very rough justice indeed.
We have got some significant improvements in the law. As I mentioned, I have campaigned on this matter for 20 years. I have not got everything I want but I have got a lot of what I wanted, and I hope that when the Bill passes to the other place further progress will be made in terms of Government amendments—and I must say that I also hope that some rather more interesting amendments come from their lordships. I hope that we get to look at all of them again in this place, along with some points that we did not succeed in addressing this evening.