My Lords, I beg to move that this Bill be now read a second time.
I am very pleased to be opening our debates on what is a small but significant Bill. It is small in that it has a single aim—to establish a new offence of corporate manslaughter—and a relatively small number of clauses. But it is very significant because it tackles an area of the law that has given rise to much concern: the effectiveness of present laws to establish when a corporate body can be guilty of manslaughter.
Each year, more than 200 workers and many more members of the public are killed as a result of work-related incidents. Some are extremely serious incidents, in which the companies involved are strongly criticised. In the case of the “Herald of Free Enterprise” disaster, Lord Justice Sheen found that from,
“top to bottom the body corporate was infected with the disease of sloppiness”.
Last year, Mr Justice Mackay described the circumstances of the Hatfield crash in 2000 as one of the worst examples,
“of sustained industrial negligence in a high-risk industry”,
that he had ever seen.
The law of manslaughter can already be used to prosecute companies in these circumstances, as distinct from any individual who has committed offences. That principle was firmly established in the early 1990s in a prosecution of P&O Ferries following the sinking of the “Herald of Free Enterprise”. However, that case also established that the appropriate basis for attributing liability to the corporate body was the “identification” principle. A prosecution for manslaughter can proceed against the corporate body only if gross negligence manslaughter can also be proved against individual senior managers. This means that the courts must judge corporate negligence on the basis of individual liability.
In our view, that is a narrow and artificial basis for assessing corporate negligence. In practice, it means that only a handful of corporate manslaughter prosecutions have ever been brought successfully—all against small companies. The consequence is that prosecutions under health and safety law are the only viable prospect in respect of larger organisations, no matter how serious the corporate failing.
We fully acknowledge the important foundation that the Health and Safety at Work etc. Act 1974 provides for the management of safety across organisations in this country. There was an interesting debate in the other place about whether the 1974 Act provided the better basis for reform. We acknowledge that the matter was not pressed and that the debate was raised to question the nature of the Government’s reform. However, to seek to sidestep the difficulties that the identification principle has brought about for establishing gross corporate negligence would be a mistake. Rather than withdrawing liability for manslaughter from these cases, we need to ensure that the law is working properly. The issue was succinctly put by my honourable friend in the other place, the Parliamentary Under-Secretary of State, Mr Gerry Sutcliffe. Shortly before the Bill arrived in this House, he said:
“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”.—[Official Report, Commons, 4/12/06; col. 115.]
My right honourable friend the Home Secretary underlined the need for reform on the Bill’s Second Reading in another place by quoting the words of the mother of a young person killed at work to the Home Affairs and Work and Pensions Select Committees. She had said:
“A successful prosecution brings into the public domain all the failings that led to a preventable death and, very importantly, it shows that this country values all human life and is prepared to punish those who are negligent or indifferent to the lives of workers”.
The House will know that the Bill aims to create a clear and effective criminal offence that serves those aims.
The Bill will move the law on in two significant ways. First, it will provide a new test for the application of corporate manslaughter to companies. This will allow the courts to look at collective management failure within an organisation, enabling for the first time a proper examination of corporate negligence. Secondly, it will remove Crown immunity. This is a far-reaching development. For the first time, government departments and other Crown bodies will be liable to prosecution in the criminal courts.
At the heart of the new offence is a new approach to establishing that a corporation has been grossly negligent. In summary, it moves away from the question of who managed the company to the question of how the fatal activity was managed. Our approach follows, to a large extent, the recommendations of the Law Commission in 1996 and represents a fundamental change in the way in which these cases can be approached. No longer will a successful prosecution depend on proving gross negligence by isolated individuals. Instead, investigators, prosecutors and the courts will be able to consider the cause of a fatality in the round: the immediate circumstances of the death and the factors that led to those circumstances occurring. They will then be able to ask whether this represented a gross failure in the management arrangements put in place by the organisation for discharging the duty of care that it owed to ensure that that activity was carried out safely.
However, since the intention is to target truly corporate negligence, we are concerned that organisations should not be prosecuted on the basis of isolated or unrelated management failings at relatively low levels of the organisation. We have sought to achieve this by requiring that the relevant failing be among the senior managers of the organisation. The Bill was published in draft on that basis. This, as many noble Lords will know, generated a good deal of discussion on consultation and we have kept the matter under active review.
We accept that there are drawbacks to this approach, not least that it would potentially give a very narrow application to the offence. The Bill has been subsequently amended in the other place to introduce a wider and more effective test, which seeks to strike a balance between taking into account the management of the fatal activity generally within the organisation and not allowing a prosecution to succeed unless a substantial element of the organisation’s failure lay at a senior management level. Noble Lords will appreciate that that will give a greater degree of flexibility.
I turn to the question of who can commit the new offence. I shall deal with three issues: the restriction of the offence to organisations and not individuals; the position of unincorporated associations; and, lastly, how the offence applies to some public bodies. The new offence is, first and foremost, about corporate liability for corporate failings. It establishes an offence that corporate bodies and other organisations will be capable of committing, based on failings across the organisation. Evidence from the Health and Safety Commission during pre-legislative scrutiny identified that many incidents arose from systemic failures rather than from the action of one individual. The new offence reflects that and is not contingent on any specific individuals committing any specific acts. It is not, therefore, a basis for convicting individuals or for imposing sanctions on them.
An important area of debate has been whether the Bill should, none the less, go further and establish a new framework for holding individuals to account for work-related death. The Government are not tempted to go along that route. The mischief that this Bill seeks to address is the restricted approach that the law has applied for assessing corporate liability for manslaughter. If individuals have acted recklessly or grossly negligently or in a way that contravenes health and safety law, they will be guilty of a criminal offence under existing laws. The new offence is intended to sit beside those offences and to provide a more effective means of attributing manslaughter to companies. It is not a part of that aim for the new offence to be a vehicle for redefining when individuals are guilty of offences.
The offence will apply comprehensively to corporate bodies, which means not only companies in the private sector but also incorporated bodies in the public sector, such as local authorities, National Health Service hospital trusts and a wide range of statutory organisations. All such bodies are already subject to prosecution for corporate manslaughter. However, the new offence does not apply to unincorporated bodies, such as partnerships, clubs or societies. That has generated a good deal of interest and debate. Our position primarily reflects the fact that unincorporated bodies do not have a separate legal identity, and the question, therefore, of finding a separate corporate liability takes on an odd character in this context. However, we recognise that there is concern that the new offence might leave a lacuna in the law in that regard, and my honourable friend in another place, the Parliamentary Under-Secretary of State, has indicated that we will consider the issue further. If—and I emphasise the word “if”—a sensible way can be found for the Bill to take a wider position here, we will seek to bring forward amendments as the Bill progresses through this House.
The third important area here is the application of the new offence to government departments and other Crown bodies. This removes the anomaly created by Crown immunity and means that the public sector across the board, as well as the private sector, will be liable for the new offence. This is an important step and one that has been widely welcomed.
My Lords, I apologise to the Minister for interrupting, but she is coming to a most important point in her very clear exegesis. Yes, Crown immunity has been waived in relation to employees and the Occupiers’ Liability Acts, but it does not seem to have been waived in wider areas, leaving the Government above the law in those areas. Will she explain that apparent anomaly?
My Lords, I had every intention of doing so, but I understand the anxiety of the noble and learned Lord, Lord Lyell, about this and I will turn to it straightaway.
We have come to the clear view that there is no good reason why government departments should be in any different position from their private sector counterparts with regard to their responsibilities as employers or in securing the safety of their premises. However, the Bill acknowledges the difference in terms of role, takes into account wider circumstances than simply those two areas and raises the difficult issues of how far public bodies should be subject to the offence for the discharge of their public functions.
There are differences between public authorities and the private sector in important respects, particularly in terms of some of the activities that they carry out. Our aim is to mark out that territory. In many respects there will be no difference, and the offence will apply to both sectors equally. However, public authorities will often be under specific responsibilities to carry out certain functions, and will neither have any choice in the matter nor be in control of the demands on their resources. Their functions can involve them working in difficult environments, balancing competing demands on public resources and making difficult decisions about how to strike the right balance in securing the safety of the public from risks posed by others. We do not consider those areas to be suitable for the application of the new offence. The Bill will not apply to a number of public functions that are unique to the responsibility of the state.
Some argued that because Crown immunity has historically been so important it should remain untrammelled, and that the Bill should not apply at all to the Crown. We have made it plain that we do not agree, but there has to be a balance, and we believe that the one struck in the Bill is right. Where any exemptions should apply, it is not an easy debate; it is not an easy line to draw. We should recognise, however, that we would not be having the debate if the Government had not taken the decision in the first place to lift Crown immunity for the new offence. While there is a natural tendency to look at areas where the Bill will not apply, that does not, if I may respectfully say so, pay full justice to the areas where it will.
The new offence is fundamentally about the proper management of workplace health and safety. The Crown will be covered in that respect. That was the genesis for this change. The Bill is not, and has never been, about finding new ways to hold the Government of the day to account for the discharge of their public responsibilities. We need to hold that firmly in our minds when considering the adequacy of the Bill’s provisions.
I have considered the question of liability for the new offence, those to whom it applies and some of the circumstances where it will not apply. I shall say a few brief words about the sanctions for the new offence, because it is an area where we might wish to develop the Bill as it progresses through this House.
The Bill provides for a convicted organisation to pay a fine, which, as is the case in the Crown Court, has no set upper limit. The court can also impose a remedial order requiring the organisation to take steps to address the failures that led to the fatality. There has been some interest in extending the range of sanctions available to the courts in these cases, and the Government are considering whether any of the ideas suggested during debate in the other place—for example, to require an organisation to inform the public about its conviction—might usefully be included in the Bill. If there is scope for improving the Bill in this respect, we would seek to bring forward amendments for this House to consider.
Before I conclude, I want to touch on an important theme that has run through debate of this area in the past, although I acknowledge that it did not characterise debate in the other place; that is, the risk of overbearing and unnecessary legislation that stifles entrepreneurship and industry with red tape. The Bill treads a careful path by offering a more effective criminal sanction for the worst cases of corporate management failure, but it does not increase the regulatory burden on business. In deciding a case, the jury is required to look at how far the organisation is in breach of its health and safety duties. This grounds the new offence firmly in the clear and established framework for managing health and safety with which employers are already familiar.
Moreover, failings will need to fall far below acceptable standards, reflecting the standard for manslaughter that generally applies. That is a high threshold. It acknowledges that certain fatalities might not give rise to prosecution or that a prosecution under health and safety law is the appropriate sanction. That is important. The new offence is not about turning every work-related death into a corporate manslaughter prosecution; it is about having a specific, severe sanction to provide a proper sense of justice in the worst cases.
This is a small but, as I say, important Bill. It will put the law—
My Lords, my noble friend gave way. I would like to ask a specific question. If a similar situation arose to that of the “Herald of Free Enterprise”, and the stricken ship bore a foreign flag but was owned by a UK company, what would be the position?
My Lords, I know that my noble friend is familiar with what I am going to say. The relevant criteria would apply in the same way as they would to any other offence committed on British soil. One would have to look at the facts of the case and consider whether it fell within the criteria that I have just outlined. These are important issues. I assure my noble friend that we will listen very carefully to this Second Reading debate. We will consider these issues. I look forward with some anticipation to the intricate exposition of these issues in Committee, if we are so lucky as to reach that stage.
As I say, this is a very important Bill. It will put the law of corporate manslaughter on to a new and more effective footing, offering the possibility of justice for those killed at work through gross corporate negligence. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Baroness Scotland of Asthal.)
My Lords, I thank the Minister for introducing this Bill with her usual elegance and lucidity and for explaining why, although small, it is of great significance—that is underlined, she would agree, by the fact that on the day that we rise for Christmas some 24 noble Lords have put their name down to speak. She will be aware that that indicates that we are likely to have a fairly busy and active Committee stage, which, dare I say, the usual channels have agreed will start soon after Christmas. Perhaps I may say a word about that in due course.
The noble Baroness described the Bill as small but significant. We could agree with that, but it is still not perfectly formed. For that reason again, we would like to have busy Committee and Report stages. The Bill has come to us through carryover procedures; in other words, its Second Reading and Committee stages in another place were held in the previous Session, its Report stage was held just after the State Opening, and we will now continue with it. Again, I shall say a bit more about that in due course, because that has significance for Committee.
At Third Reading in another place, my honourable friend Dominic Grieve, in giving his views on the Bill, wished it “a good passage”, having at Second Reading made it clear—and the noble Baroness referred to this—that he felt that there might be a more effective way of dealing with the problem by relying more on the Health and Safety at Work etc. Act 1974. He made clear at Third Reading that he had failed to convince the Government in Committee of the virtues of that approach and that he was therefore, as we are, content to try to help the Government improve a Bill that, as I described, is not perfectly formed. He said that he wanted to help to ensure that, when finally enacted, the legislation was not seen as representing gesture politics, as designed merely to keep the Government’s friends in the trade unions and others happy, or as setting up a legislative sledgehammer to crack a nut that, as my honourable friend said, could more effectively have been cracked by simpler amendments introducing an aggravated offence into the 1974 Act.
As I mentioned, the Bill was carried over, having gone through Second Reading and Committee in another place in the previous Session, and it had its Third Reading this Session. That indicates, certainly to me, that time is not of the essence. As the noble Baroness made clear, it was first introduced as a draft Bill and has been subject to very extensive scrutiny and consultation with all and sundry—every possible stakeholder, as the Government like to say. Therefore, it is unfortunate that the Government conducted a truncated Report stage in another place and introduced many amendments without any discussion whatever. In the Commons on 4 December, as reported in Hansard at cols. 113-34, some 21 government amendments were introduced and agreed to without any debate or explanation. I should warn the noble Baroness that we will be minded to table an extensive number of “leave out” amendments in relation to those government changes, purely to give the noble Baroness an opportunity to explain in greater detail the intentions behind their introduction. They might easily have been explained if there had been a second day of Report. I make that point purely so that the noble Baroness knows that those amendments that seek to delete the Government’s amendments will of necessity be what might be referred to as probing amendments. We want to know exactly what the Government intended by their amendments.
I understand from the usual channels that an agreement has been made to allocate a reasonable number of days—four, I believe—for Committee stage, and the suggestion is that it will be taken in Grand Committee. We need answers from the Government and the opportunity to explore exactly what they are trying to do. We also wish to explore a number of other issues, which I will touch on in my relatively brief remarks—they will be added to at the end of the debate by my noble friend Lord Hunt.
The issue involves deaths in custody, which, the Minister will be aware, was a concern of my honourable friends in another place. Is it right that, for example, the Prison Service, the police or, for that matter, any other provider of lawful custody—whether they be young offender institutions, those responsible for children in care, local authority secure units or secure mental health units—should be exempt from a corporate manslaughter charge for a death that could be attributable to their actions? We will table amendments on that and look forward to hearing what the Government have to say.
The second issue, which relates to Clause 4, involves military activity. As I understand matters, the Armed Forces are quite rightly exempt from health and safety legislation. We are not sure whether anything should be done about that unless the proposal was limited merely to training. My honourable friend in another place said that it would be “absurd” if operational activities were covered, but it is worth exploring the case for the Bill’s application to training matters.
Thirdly, there is the whole question of policing and law enforcement. I understand that police forces currently have a duty of care to their employees but not necessarily in relation to deaths that they may cause to others. One obviously thinks of the recent and very tragic killing of Jean Charles de Menezes. Although an individual officer could be liable under existing law to prosecution for such a killing, is it right that the force would be exempt under the Bill? I am sure that the noble Baroness will explore that issue with us in Committee.
The noble Baroness also referred to the exclusion of partnerships and other unincorporated bodies. I appreciate that there are difficulties, which she referred to, in drafting measures to cover such bodies; however, there seems very little logic in this if the intention is to create a level playing field. It leaves quite a large potential loophole. What about, for example, the large architectural practice or partnership that grossly and negligently designs a building that collapses, with serious loss of life? I understand—the noble Baroness made this clear—that the Government will look at this; we await their amendments with considerable interest. We hope that we can see them sooner rather than later; I stress that in the light of the fact that Committee stage begins on our return on, I believe, 10 January.
The same consideration applies to the amendments that the Government promised us on the whole question of sanctions. The noble Baroness touched on that and said that amendments would be tabled. We would like to see them immediately—as soon as the Bill has had its Second Reading—so that we have time to consider them over the Christmas rush. I hope that, when the noble and learned Lord the Lord Advocate comes to respond, he will be able to assure us that the amendments promised by his noble friend will be with us, as I said, sooner rather than later.
Lastly, I want to touch briefly on the rather different treatment meted out by the Government to public and private bodies. In Clause 2, which concerns the meaning of “relevant duty of care”, as I understand it—the noble and learned Lord the Lord Advocate will no doubt tell me that I have it wrong—the duties in paragraphs (a) and (b) of subsection (1) apply to both public and private bodies, whereas those under paragraph (c) seem to apply only to private ones. That seems an invidious distinction. I do not understand why public and private bodies should be treated differently, but no doubt the noble and learned Lord can explain that in due course.
This is the last day before we break up. There are some 22 speakers on the Bill, and we greatly look forward to hearing them. I hope that we can look forward to a fairly busy and active four days in Committee and possibly an active Report stage after that. Following the speed with which the Bill was taken through the Commons, which was wholly unnecessary, I remind the noble Baroness that it is even more important than usual that we examine it with the customary care that we take over such legislation.
My Lords, I also thank the noble Baroness for giving a clear exposition of the Bill, as she habitually does—as I have learnt in the short time that I have been in this place.
I am pleased to welcome this legislation from the other place: it has been long sought and long needed. I think it is fair to say that the public have frequently been dismayed at the lack of accountability and apportionment of blame following many disasters. It says it all when we learn that the investigation into the Potters Bar rail crash exposed the sadness and frustration of the victims’ relatives, as no organisation seemed to take responsibility. How often does one read that, many years later, recommendations resulting from an official inquiry or investigation have still not been implemented? The Minister referred to the “Herald of Free Enterprise”. I could be wrong but I believe that measures and changes to, for example, procedures, which were recommended after that tragic disaster, have still to be implemented. I hope that, although it is not within the scope of the Bill, this legislation will provide an inducement to see that measures are put in place promptly and urgently with proper application to close off as much as possible the likelihood of disasters recurring. The message from this legislation must be: “Act now or else”.
In this House, we have the opportunity to scrutinise further. The Minister in the other place acknowledged that many important issues were not sufficiently discussed, and I hope that we will be able to carry forward those discussions in this place.
In the time available to examine the Bill that has been passed to us, it has become evident that there are key areas to pursue. It is boldly claimed that Crown immunity has been put to one side, but there are also many exceptions and exclusions of certain activities. This area has already been followed up in the other place but it remains a concern. We must be assiduous in doing what we can in this area, as exceptions are said to apply to the Armed Forces, the police, the emergency services and bodies concerned with child protection. Those are the very areas that attract the greatest concerns and disbelief from the public, where dismay is felt that blame is not apportioned, and where concern remains. Will lessons be learnt for the future? My noble friend Lord Lee will later address issues concerning the Armed Forces and police custody.
I mentioned child protection as being seemingly excluded under Crown immunity, yet being an area of very great distress to the public. Can the Minister reassure us that there will be no repeat of the Victoria Climbié case? One junior person took the blame, but five senior managers representing the organisation as a whole were criticised but not held to account. They either stayed in post or went on to be promoted.
When I was a Member in the other place, a heart-rending case was put to me where a much loved daughter lost her life due to a collision with a fire engine. Her parents were distraught and wanted to feel that someone would be found accountable for causing the accident. I hope we will be able to address this type of personal tragedy. My fear is that such an accident is not covered by the Bill. With a few exceptions, emergency services appear to be exempt from the offence created by the Bill.
Will the Minister give the House some advice on how such incidents may be addressed by the Bill, or at least think about what mechanisms of redress are available to members of families when the actions of public authorities result in the deaths of people due to the gross negligence of such bodies? On road accidents, it is concerning that fatal accidents involving the police are rising at an alarming rate, with 48 members of the public being killed last year compared to nine deaths in 1997. Indeed, only yesterday, a father lost his life as a result of a police van being on a 999 call. Is driver training enough to ensure that procedures are put in place to avoid such incidents?
Having been in business prior to my time in politics, as a managing director of a small manufacturing company, I have learnt that business must also take its responsibilities seriously, within reason—the noble Baroness, Lady Scotland, herself alluded to a sense of balance. I say that because, when my factory was broken into and property stolen, I was made to feel the transgressor when the police pointed out a door on the third floor which could be opened from inside. They said that, had the burglars opened the door, got on to the roof and then fallen to the ground, I would have been responsible. We need common sense on these issues.
The Bill fails to cover a number of concerns. One is the exclusion of unincorporated bodies in the offence, whereby the legislation would cause companies to structure themselves as incorporated associations to evade health and safety regulations, a matter which the noble Baroness, Lady Scotland, has acknowledged is worthy of further consideration. Another is whether the financial sanctions proposed by the Government will provide a greater deterrent to companies. Does the Minister feel that unlimited fines will deter large corporations? Will these unlimited fines give victims’ families a sense of justice?
I understand that Professor Macrory’s report has stated that reliance on criminal prosecution fails to give regulators adequate means to effectively deal with many cases in a proportionate and risk-based way. Will the Minister respond to the report, which has raised some concerns? Our colleagues in the other place have proposed a corporate community service order, which would provide a greater stigma to the company. During consideration in the other place, the Minister Gerry Sutcliffe promised to look into disqualification orders for directors as an extra recourse. Can the Minister indicate whether this has been progressed?
Individual liability is a key issue that must be scrutinised. Clause 17 argues that an individual director cannot be held responsible for the commission of an offence. A company can therefore be penalised, but the Bill fails to deal with accountability for an accident at a senior level. This serious problem must be followed up. There are also concerns that the relevant duty of care as specified in Clause 2(1) is too narrow. We hope the Government will look at that again.
It is important to identify the effect that this Bill will have on small business. Essentially, it will not make much difference, since individual small business owners are being caught and prosecuted under existing legislation because they are easily identifiable. Although larger organisations will become more accountable under the Bill, individuals in large organisations will escape prosecution whereas small business managers will still be more open to charges.
The legislation has two key purposes: first, to ensure that companies and organisations are held to account following accidents and events; secondly, to provide a spur and real incentive to ensure that steps are taken to avoid unnecessary accidents in future. In particular, as I mentioned earlier, we frequently learn years after the event that recommendations made at the time—usually after exhaustive inquiries and official investigations—have not been implemented. The message must go out that such recommendations should be implemented fully and speedily.
We on these Benches look forward to our opportunity to further examine the Bill. I hope that the Government will respond favourably to the concerns that still remain.
My Lords, Article 2 under the Human Rights Act guarantees everyone the right to life. This long-awaited Bill sets out the conditions in which employers can be held accountable for deaths due to negligence. However, some exemptions effectively exonerate—in advance—a public service body that may be guilty of negligence causing death or injury to those in its care. In particular, I am concerned that, as the noble Lords, Lord Henley and Lord Cotter, said, the Prison Service is exempted. That is neither logical nor acceptable. It means that while a private body could be prosecuted for a death, the prison or police services may not, even though circumstances may be very similar, merely because they have an “exclusive public function”. If the Home Office can act with impunity, why should large companies not be able to do likewise?
In 2005, just under 80 inmates died as a result of self-inflicted injury. Many of these deaths are attributable to mental problems, inadequate or wrong medication, poor communications between medical and prison staff and a failure to carry out proper risk assessment. These deaths are preventable, so why does the Bill underline the fact that no one is to be held criminally responsible? I declare an interest as a member of the independent monitoring board for HMP Wormwood Scrubs.
The Government may argue that there are several other mechanisms to deal with prison deaths, such as ministerial accountability to Parliament, inquests, public inquiries, judicial review and ombudsmen. Recent reports such as that from the IPCC, however, are not about determining liability. Those mechanisms may well be the most appropriate in certain circumstances, but none should rule out, as sternly as does the Bill, the possibility of prosecution. Since 1990, 10 deaths among those detained have been ruled by the courts to be unlawful killings, the Mubarek case being perhaps the most well known, but there have been no prosecutions. How can one possibly convince a mother whose child has been killed due to gross negligence on the part of the state that she should not receive justice? The argument has no logical, legal or moral basis. The organisation INQUEST argues that it brings the law into disrepute because equality before the law is a key element of the rule of law.
It is worth briefly examining what might be the advantages of removing these exemptions. We all know that the prison and police services do a very difficult and sometimes harrowing job extremely well and with very limited resources. No one would wish to see these services pilloried for deaths that occur under their watch and for which there really was no further feasible preventive action. That said, if there were to be criminal responsibility in some cases where negligence is a direct contributing cause of death, it would have the effect of restoring public confidence in the services, encourage greater efforts to implement lessons learnt and perhaps ensure that the recommendations for improvements made by the inspectorates would be implemented.
In the debate on deaths in custody, on 9 June 2005, there were many eloquent speeches, all of which emphasised the right to be held safely in detention and the need for risk assessments to be more than the cursory affairs they continue to be. We know that perhaps two-thirds of prisoners and young offenders have serious psychiatric, mental and emotional problems. One speaker—the noble Baroness, Lady Murphy—pointed out that populations in prisons and mental institutions overlap to the extent that it often seems random where they end up. The noble Lord, Lord Lester, said that by taking people into custody, the state takes upon itself a particular duty of care because of the extreme vulnerability of prisoners and detainees. Nor, he said, could the problems that lead up to self-harm, suicide and violence be assessed in isolation from problems such as overcrowding, sentencing practice and alternatives to custodial sentences.
In reply, the noble Baroness, Lady Scotland, agreed to those points. She said,
“we meant what we said and we will follow through on those matters”.—[Official Report, 9/06/05; col. 1058.]
The question remains whether the exemptions in the Bill constitute a proper follow-through and whether they will contribute to a safer prison environment. Excluding deaths in custody from the Bill will neither help to encourage a different attitude towards negligence nor have any kind of a deterrent effect; it may even have the opposite effect of suggesting that those who work for the state are above the law.
My Lords, I compliment the Government on introducing this long-overdue Bill. In the past few years many public and private bodies have caused death or considerable harm to their employees or the general public, and have not been successfully prosecuted or have got away with nothing more than a fine. For example, in the case of the Paddington train crash, 31 people died and Thames Trains got away with a fine of £2 million. A Bill of this nature, of such depth and magnitude, is therefore long overdue.
The Bill has gone quite a distance in accommodating some of the legitimate concerns of a large number of people. However, it needs to go a little further. I shall highlight four important areas that I hope the Minister will take up with her colleagues. One of the most important things that have stood in the way of the notion of corporate manslaughter or homicide is the rather dated notion of responsibility with which law and jurisprudence generally tend to operate. Whenever there is an accident, our immediate question is, “Who did it?”. That is why the Government introduced in earlier legislation the identification principle, and why even the Law Commission thinks largely in terms of management failure. The assumption is that there must be an identifiable individual who can be held responsible, causally and therefore morally, for a chain of actions. That is not how organisations have traditionally functioned, and it is not how they function now. There is often a decision-making procedure—a web of rules—through which decisions emerge, so that no single identifiable individual is responsible for a course of action. Therefore, if we want to hold public bodies responsible, we need a concept of responsibility commensurate with the way in which decisions are taken in large organisations.
I do not wish to deny that senior management are responsible, but they are not responsible in quite the way we seem to think they are—namely, “They did it”. Their responsibility consists largely in allowing a set of procedures and rules to obtain that result in decisions being taken that inflict harm on people. Therefore, we should bear in mind that the senior management’s responsibility ought to consist and should be defined in terms of whether they periodically monitor the procedures by which decisions are taken in the organisation. We saw that in the area of racial discrimination, and that is how the law has been amended over time. No individual directly wished discrimination to take place but the rules and procedures of the organisation nevertheless resulted in discrimination. When the law was amended, the responsibility of the individual was therefore defined in terms of whether he took adequate care—whether the organisation had outside consultants look at its procedures and rules to see whether they directly or indirectly, intentionally or unintentionally, precipitated certain forms of decision-making.
My second point relates to the nature of the senior management. They are responsible, but that responsibility consists of monitoring the procedures and level of decision-making. As the senior management are responsible, it is not enough simply to say that the corporation should pay the fine or be held responsible. The corporation does not exist in a vacuum. It is incarnated in the decisions made by the senior management. Therefore, there must be some way in which the senior management can be held legally responsible. The Bill does not quite take account of that. It is not enough to say that they should resign or be forced to resign under public pressure, because resignation is hardly punishment. It is very common for people to resign with a substantial handshake, or to reappear a few years later as a consultant to the same organisation or in some other capacity in another organisation. Therefore, we must emphasise the notion of secondary responsibility and ensure that, in cases where corporate manslaughter has been proved, the senior management is liable to criminal prosecution and, if necessary, a prison sentence.
My third point has already been made by a number of other noble Lords but I want to approach it from a slightly different angle. As the noble Baroness, Lady D’Souza, rightly said, if government bodies are not held responsible in the same way as private bodies, then they are not setting a good example to society at large. If we are going to think in terms of corporate manslaughter, we should be thinking of prison authorities, the police, the Armed Forces and even the National Health Service. If the police or the Army are guilty of lethal force, I cannot see the logical grounds for exempting them from the same principle as applies to public organisations. Or if people are known to have died in police custody then, even if the police themselves are not guilty of intending the deaths, the procedures that they followed resulted in the deaths. Zahid Mubarek, a 19 year-old boy, was killed by a racist cellmate at Feltham young offender institution. It could have been anticipated and prevented by anyone with reasonable intelligence and wisdom. It is a pity that nothing was done.
I shall push this point a little further in the direction of the National Health Service. Although it is concerned to cure people, it also kills people, because in many situations a failure to cure results in death and is therefore a form of homicide or manslaughter. If an NHS trust poorly trains or poorly supervises junior doctors or asks them to work in conditions in which fatal errors of judgment are periodically made, why should it not be guilty of corporate manslaughter? It is also guilty if it engages in irresponsible cost-cutting or unjustified risk. As I have said before, I can list many cases where deaths and long-term harm to patients could have been anticipated and avoided if the NHS trust concerned had taken proper care. All this is necessary not so much in a punitive spirit but to create a culture of responsibility in every public and private body. Every loss of life is tragic and those in charge should be made to appreciate that, and to arrange their decision-making accordingly.
My third point pushes this argument further in a slightly different direction. I am not entirely sure whether this matter falls, or should fall, within the scope of the Bill, although I do not see why it should not. In any case, it deserves serious consideration because it is being debated in a very big way by several friends and colleagues of mine on the other side of the Atlantic. Let us consider the Armed Forces. It is recognised that the Ministry of Defence is responsible for the life and well-being of the Armed Forces. Let us suppose that the MoD sends the Armed Forces into military action without proper equipment or a proper assessment of the risks involved in undertaking such an action. If as a result there are casualties and our soldiers die, it would be utterly wrong, and inconsistent logically as well as morally, to say that the Ministry of Defence is not responsible for the deaths by its actions. It is very striking that precisely that point was made just this morning by the coroner at the inquest of Sergeant Steven Roberts.
Just as corporations cut corners and are guilty of corporate manslaughter because they are often motivated by considerations of profit—and we rightly condemn them for it—it is perfectly possible for the Ministry of Defence, and indeed for the Government as a whole, to be motivated, not so much by concerns of profit but by cost-cutting or political pressure, or because military actions allow even small politicians to emerge larger than they actually are, or because of the political gains that they make. I do not see why the Ministry of Defence, the Government or the head of the Armed Forces should be given the large benefit of a small doubt that they might deserve in these cases, or why they should be treated by different notions of corporate responsibility from those that we rightly apply to commercial enterprises.
This issue has become very important. Law journals in the United States—I was there not very long ago—and Yale and Harvard are debating these issues against the background of what Donald Rumsfeld did in his cost-cutting exercise and how hundreds of American soldiers died. I think that, sooner or later, we will have to address that question here.
My last point has to do with the requirement that the consent of the Director of Public Prosecutions must be obtained before a private prosecution can be initiated in cases involving corporate manslaughter. The requirement does not exist in several other areas of criminal law, and in my view it seriously curtails a citizen’s liberty to seek redress when grave harm has been done to himself or those associated with him. I very much hope that the Minister will give second, or perhaps even third, thoughts to whether the consent of the Director of Public Prosecutions is absolutely necessary in mounting prosecutions of this kind.
My Lords, I begin by declaring an interest as chairman of Stowe School and a trustee of Stowe House Preservation Trust. It is a very well known and beautiful building, the maintenance of which carries enormous responsibilities similar to those carried by the Government in relation to the public estate. The National Trust has similar responsibilities; many of its members must be present today.
I broadly support the Bill. I have a number of questions and one big anxiety, which I have already indicated to the Minister: why do the Government still keep themselves very significantly above the law in this area? They are changing the law in a sensible way, which will concentrate minds, increase responsibility and balance the funds available to an organisation. The balance of what can reasonably be expected to be done is rightly part of the definition. But I cannot at the moment understand why the Government should make exemptions; I will say a word about that in a moment.
It is worth looking at the level of the problem which this Bill seeks to deal with, because it ought not to be exaggerated. Every death diminishes us, and we are talking about 250 to 350 deaths a year. About one-third of those deaths give rise to health and safety prosecutions, and a high proportion—between 80 and 90 per cent—of those prosecutions lead to convictions. The Health and Safety at Work etc. Act 1974 on the whole works very well and constructively. One of the areas in which it does not meet what the public rightly require is where offences have been committed which one feels ought to give rise to a conviction for something like corporate manslaughter, but where the complexity of the matter causes what seem very proper prosecutions to fail. The prime example—and I was Attorney-General at the time—is the “Herald of Free Enterprise”. Sir Barry Sheen commented on the culture of sloppiness which led to that unhappy vessel going to sea with the bow doors open in what was a terrible chapter of negligence. The defaults in the law were clearly pointed out, which it is now sought to correct.
The Government are quite right to divorce corporate manslaughter from individual liability. One has to be extremely careful about trying to point the finger at individuals who are taking huge responsibilities and who might very well say that the game is not worth the candle: “I’ll go and do something else in my life rather than take responsibility”. I very much commend the speech of the noble Baroness, Lady D’Souza, who put her finger on a number of points which very much chime with the public and with me.
The Minister argued that the Government were taking a great step forward on Crown immunity. I commend those steps, but the noble Baroness also recognises, because she is far too acute not to, that they still reserve a great deal of immunity to themselves. I wonder whether that is necessary. We should explore that maturely in Committee. I do not think that there is reason to be too fussed, but there is reason to be concerned if it is not part of the law for government bodies including the police, the Armed Forces and those with responsibilities for child protection and young offenders. Those are all, as the noble Baroness, Lady D’Souza, rightly said, very difficult and demanding jobs whose difficulty and demands will certainly be taken most carefully into account in deciding whether there is anything like the kind of gross negligence which gives rise to corporate manslaughter.
However, why should such bodies be completely immune? Is not the fact that you can be held ultimately responsible for manslaughter a strength as well as a weakness? It gives those who have the difficult job of running prisons, for example, the right to say to the Government, “You must give us enough money to do this difficult job properly”—just as one would expect a corporation which is managing its affairs and providing a very valuable service to do its job. This is not a public/private battle. It does not matter whether you are treated by the health service or in a private hospital, the organisation is performing an enormously important function. The standards are the same, and sufficient money must be made available to do a proper job in either case.
We must look again very carefully at Crown immunity and be governed by the overwhelming constitutional position that nobody should be above the law. The law can be amended and made proportionate, but it applies to everybody including Government. That should be our watchword.
The first point I wish to make is quite big but has not been mentioned so far. At the moment, the standard for corporate manslaughter falls far below what can be reasonably expected of an organisation in the circumstances. I shall be corrected by the noble and learned Lord the Lord Advocate when he makes his winding-up speech, if I have it wrong, but my recollection is that a very important ingredient of manslaughter is not only that the conduct should fall far below reasonable standards but that it should have been obvious that conduct of that nature was likely to lead to death. That ought to be part of the definition. If it is, I am happy to know that; but if it is not, we should reflect further and perhaps include it.
I say just one word about requiring the consent of the Director of Public Prosecutions. As the noble Lord, Lord Parekh, rightly said, that will prevent a private prosecution unless the Director of Public Prosecutions—which effectively means the Crown Prosecution Service—is willing to take it on. I am inclined to think that that is a wise restriction. This is not an area for private prosecutions. There is plenty of opportunity to bring pressure on the authorities, including the Crown Prosecution Service, to bring a case where the facts warrant it, but one does not want private prosecutions brought, often by people who have suffered terrible tragedies and who may not find it easy to approach the matter with a balanced view.
I give the Bill broad support, but there are some very important areas that we need to consider in Committee. I thoroughly endorse what my noble friends said when they asked for reasonable and proper time in Committee.
My Lords, I am most grateful to the noble and learned Lord for giving way. I understand that he is coming to a conclusion and I would like to ask him a question about something that he said as we approach Committee, where these matters may be raised. He referred to the Crown and said—I believe I have it right—that nobody should be above the law. That he directed to the position of the Crown under the Bill. It is difficult not to agree that that is a very important issue. Does he think that that basic principle that no one should be above the law applies also to human beings in regard to primary and secondary liability?
My Lords, just immediately, I am not sure that I have understood the question, which is undoubtedly my fault. If the noble Lord is addressing the question of whether the Bill should be expanded to include personal liability, my view, as I said, is that at the moment I think that the Government are right to keep the two matters separate. Perhaps we shall have the chance to tease that out in Committee and I shall understand better and give a better answer.
I was referring briefly to the consent of the Director of Public Prosecutions, which is a wise provision. I was saying that I hope that we shall have adequate time in Committee. It is a genuine complaint from this side of the House and from the Opposition generally that Bills are rushed, especially in the other place. It was not right that the Bill had no proper Report there and that so many undiscussed amendments were pushed through. I hope and confidently believe that that will not happen here.
My Lords, not surprisingly, I am interested in the Scottish aspects of the Bill. I am very pleased to note that the noble and learned Lord, Lord Davidson of Glen Clova, who has been misdescribed as the Lord Advocate when in fact he is the Advocate-General for Scotland, will wind up the debate. There is a fair point for you.
This must be one of the first times that I have come across a Bill affecting the Scots common law which has no separate text for Scotland. No doubt the reason is that the Bill is supposed to be United Kingdom law, although that was not the original intention. That brings me to my first point, which is that the Bill appears to have a rather dodgy—perhaps I mean rickety—constitutional basis, because criminal justice is rightly devolved but health and safety is reserved. That is not the only occasion for such weak logic: perhaps the most famous is the reservation of abortion despite the devolution of criminal justice and health.
Nothing of what I have said so far means that I am against the aims of the Bill. However, I wonder about the willingness of a jury to convict a corporate body without the ability or need to pin the blame on any individual. I can see that the philosophy behind the Bill is right. I know that the culture of an organisation can be far from its headline stance. I just wonder whether any prosecutor will be able to make an unchallengeable case that the organisation was deliberately sloppy or not bothered about health and safety issues. Presumably, identifying intent will be an essential part of the prosecution.
The Bill is unusual in that it tries to marry the criminal law with the civil law. I believe that the duty of care is a civil law concept. I am well aware of that duty of care in the context of my being a landowner in Scotland. I recognise that it is very broad in its extent, reaching out well beyond those invited on to land in one’s ownership, including those there by right and extending even to those whom I may have attempted to forbid to be on that land or who are breaching the terms of that access. Therefore, I see some difficulty in defining the duty of care in the context of the Bill. I believe it to be wider than just the staff and customers.
This morning, I was nudged by a report on Radio 4 that the National Trust was still waiting for a judgment on the death of an eight year-old caused by a falling tree on land owned by the National Trust. Indeed, the House discussed that during Questions today. Although I recognise that an annual tree survey is a new imperative, especially on access land, I am concerned that the prospect of corporate manslaughter charges will have an unnecessarily severe outcome for older trees and for the landscape in general. At present, those who manage electricity power lines are cutting ever greater swathes through the countryside, thereby altering the appearance of the landscape, in the name of safety. That affects not only conservation bodies such as the National Trust but the forestry firms and woodland management companies that undertake tree surveys and advise corporate as well as private landowners. I remind myself that on a windy day in the Sauchie area of Clackmannanshire, a tree blew down 30 seconds after I had walked past it.
On a more minor Scottish note, I understand that Scottish Partnerships has a distinct legal personality—or so the Law Society of Scotland has encouraged me to believe—and so should be added to the business associations relevant to the Bill. I acknowledge that that is not the case in England.
My final point is about the punishment. It seems to be restricted to an unlimited fine. That could be broadened to include adverse publicity orders, community reparation orders and automatic notification to Companies House. I certainly feel that if the local community rather than the Treasury could benefit, there might be a greater sense of justice. I should also like some specific reference to which senior person is to attend the court for the moment of sentencing, rather than just the organisation's lawyers.
The Bill makes a good stab at something which is clearly desirable. Whether an unchallengeable case can be made is the real dilemma for a jury. Perhaps enough witnesses will come forward, but there will be many hoping to pressure such witnesses against such an action. I still feel that juries will feel happier deciding about the actions of an individual and that person's individual liability. Certainly the Law Society of Scotland would like a personal liability element to be included in the Bill.
I look forward to the next stages, and to the intervention from my noble friend Lord Tyler in the gap.
My Lords, I welcome the Bill not because I hunger for more offences to be created and more people to be prosecuted and punished—far from it—but in the hope that it will prevent avoidable deaths and hold those guilty of gross negligence to account. I thank the Minister for her very lucid opening remarks, which I found very helpful. My contribution will be directed to only one aspect: the exemption from the Bill of deaths in custody. Other noble Lords have already referred to this defect in the Bill, so I shall be brief.
In its report on deaths in custody, published in 2004, the Joint Committee on Human Rights, of which I am a member, made two recommendations relevant to the Bill. First, it recommended that,
“consideration be given to introducing an offence of causing or allowing the death of a person in State custody”.
Secondly, it recommended that,
“an offence of corporate killing be made applicable to public bodies such as police forces, the prison service and health authorities, in order to provide adequate legal protection for the right to life against careless killing by public bodies, as required by Article 2”.
The Government did not accept the first recommendation, but, on the second, said that they,
“recognised the importance of accountability where serious management failures lead to death and is committed to producing a draft Bill”.
Unfortunately, as we now know, the Government decided not to accept the second recommendation either.
In its scrutiny report on the Bill, the Joint Committee on Human Rights concluded:
“We believe that there is no principled justification for excluding deaths in prisons or police custody from the ambit of the offence … We are particularly concerned that private companies running prisons or custody suites, which are arguably less accountable at present, would be exempt”.
The Home Affairs Committee and the Work and Pensions Committee agreed. This is not a partisan view. John Denham, who chairs the Home Affairs Committee and who, on 4 December in another place, spoke to amendments to remove the exemption for deaths in custody, said that the two committees’ views represented the,
“considered positions of entire Committees taken unanimously across party rather than any individual point of view”.—[Official Report, Commons, 4/12/06; col. 106.]
The arguments for removing this exemption have been well made in Parliament, and by many outside Parliament including INQUEST, the Police Federation, the Prison Reform Trust, Liberty, and JUSTICE. The arguments for keeping the exemption have been much less convincing. First, according to the Minister, Gerry Sutcliffe, speaking in the other place on 4 December:
“The custodial environment deals with difficult people”.—[Official Report, Commons, 4/12/06; col. 103.]
He added that prisons “are unique environments”. According to the Minister in the other place, the Government also argue:
“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”.—[Official Report, Commons, 4/12/06; col. 105.]
I shall deal briefly with these arguments. The first relates to public inquiries. When, in 1994, their son Christopher was put in a prison cell with a violent mentally ill man and murdered in the night, Paul and Audrey Edwards got nowhere with the Government and had to take their case to the European Court of Human Rights in Strasbourg to get a ruling that the Government had failed in their duty of care to protect Christopher. The family of Zahid Mubarek got nowhere with the Government and had to fight all the way to get a public inquiry. When it came, six years after the death, the finding was that Zahid’s death had been preventable. The family of Joseph Scholes got nowhere with the Government and is still fighting for a public inquiry into how a very vulnerable 16 year-old child could kill himself in a young offender institution when his suicidal tendencies were known to all those involved.
The argument that public inquiries will suffice is not impressive. Coroners’ inquests are held in public, but here, too, there are gross inadequacies. Several years can pass between a death and the inquest into it. Coroners’ recommendations on the lessons learnt from deaths in custody are taken up only randomly by the body to whom the recommendation is made because there is no formal system for ensuring that they are taken up. INQUEST, for example, reminds us that an inquest held in 2001 into the death of a woman in Styal prison resulted in a coroner’s recommendation that a methadone programme be implemented. This did not happen.
It was good of the Minister in the other place to put faith in our independent prisons inspectorate. Yet the evidence is clear that the recommendations of Her Majesty’s Chief Inspector of Prisons on deaths in custody are not taken up in a timely fashion so that further deaths can be prevented. In 2002, the Chief Inspector of Prisons conducted a full inspection of Styal prison and identified systemic failings, particularly in the treatment and care of women withdrawing from drugs and in the lack of detoxification facilities. Action was not taken for some time and, in the interim, there were several other deaths. This September, the Chief Inspector of Prisons reported on a follow-up visit to Pentonville prison. She noted:
“Last time, we had a particular concern about the support of prisoners in the early days of custody: especially as five out of six recent self-inflicted deaths had taken place within days of arrival”.
The inspectors checked how many of their recommendations aimed at preventing deaths in Pentonville had been implemented. The recommendation that new prisoners should be properly supported and managed in a dedicated and appropriate first-night centre was not achieved. The recommendation that an effective, audible cell-call alarm system should be installed was not achieved. The recommendation for night staff to be aware of emergency procedures and to be trained and prepared to operate them was not achieved. The recommendation for improved detoxification was partially achieved. The recommendation that the overall management of safer custody should be improved was not achieved. I am not convinced; nor was Andrew Dismore, the chairman of the Joint Committee on Human Rights in the other place, who said that,
“we have heard no logical argument ... other than that prisons are different”.—[Official Report, Commons, 4/12/06; col. 108.]
People in custody are often particularly vulnerable and are often sick. Many are unconvicted and may be acquitted. Current arrangements for holding the responsible authorities accountable are far from adequate. Members in the other place made it clear that they expect this House to deal with this matter. John Denham said that it was,
“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”.—[Official Report, Commons, 4/12/06; col. 107.]
In the same debate, Dominic Grieve said that,
“there is a tide of opinion contrary to the Government’s current position”.—[Official Report, Commons, 4/12/06; col. 101.]
I am sure he is right, and I look forward to the further stages of the Bill.
My Lords, I am sure that we all cheer my noble friend for her powerful and clear presentation of the conclusions of the Joint Committee on Human Rights, of which I, too, am a member. Does she agree that there is another very powerful argument in paragraph 1.43 of the report? Very briefly, it says that,
“the effect of these provisions in the Bill is to preclude the possibility of prosecution for corporate manslaughter in precisely those contexts in which the positive obligation in Article 2 is at its strongest, and may require, in a particular case, that criminal prosecutions be brought: the use of lethal force by the police or army; deaths in custody; deaths of vulnerable children who should be in care, to name just a few examples”.
Does my noble friend agree that the whole House should take the report very seriously and that there are several powerful arguments in it that are highly relevant to our considerations?
My Lords, I am very glad to follow the noble Baroness, who has recorded a number of salient points to which it is incumbent on my noble friend to reply.
Nearly 20 years ago, the “Herald of Free Enterprise” foundered just outside Zeebrugge, Belgium, and 187 people died. Many more were grievously injured. At that time, I was the European Commissioner for transport, the environment and nuclear safety, and I went to Zeebrugge. Without doubt, it was the most shattering experience that I have ever endured. I met the then Prime Minister, the noble Baroness, Lady Thatcher, who went to the local hospital to comfort survivors. I went to see those who were not hospitalised and were able to walk. I will never forget their tears, the silences and the hysterical laughter. It was an experience which I will carry to my grave.
All this, and so much more, was wholly avoidable. None of it should have happened. As Mr Justice Sheen said, which we have been reminded of today, a culture of sloppiness pervaded the whole issue. Yet no one was successfully prosecuted, which has been the case whenever larger companies have been involved. I suppose it is due to their devolution of functions, the structures of management and the complex nature of such organisations, but it is not an excuse. A somewhat similar picture has evolved concerning other tragedies: for example, King’s Cross, which few of us will ever forget; the “Marchioness”, which occurred not far from here; the railway disasters; and the manslaughters which took place in many other cases. As a result, 212 workers were killed and many more were seriously injured.
The new remedy of corporate killing was suggested in 1996 by the Law Commission. About 10 years later, we are faced with the present Bill. On 4 December, the Bill had its Third Reading in the House of Commons. Of course, it contains some rational amendments. I welcome the Bill as a considerable improvement on the present position, but, like so many others, I believe that it is capable of being improved. In my respectful submission, there are certain features which still need to be addressed. Of course, a company cannot be sent to prison. However, it has been suggested that other penalties might be imposed; for example, corporate probation. The Government should give their view on that. Why should not the directors concerned face disqualification? Is it not right that companies found guilty of corporate manslaughter should be named and shamed? That does not always happen, but it should. It is right therefore that Ministers should answer these and other highly germane questions.
Another issue which needs to be confronted is that of individual directors who are shown to be involved in the death of people. Under the Bill, corporations may be found guilty after the death of a person, but what sanctions will be invoked against those individuals who are responsible for governing the actions or inactions of such corporations? The Joint Select Committee recommended secondary liability for those who connive, conspire or collude in an act which results in death. Yet the Government have declined to accept that advice. Why on Earth they should do so is beyond me. I cannot understand it. No doubt, my noble friend will enlighten the House. Very shortly, Professor Macrory will produce his report. How, if at all, do the Government propose to deal with the recommendations which will ensue?
My noble friend Lord Parekh said something of enormous importance. This Bill is about the culture of responsibility. In no way should it be viewed as punitive. The parliamentary scrutiny committee said:
“We believe that in principle it should be possible to prosecute a company for corporate manslaughter when the grossly negligent management failure has occurred in England or Wales irrespective of where a death occurred. If this was not the case, there would be no incentive for such companies to improve or maintain acceptable standards of health and safety in the activities they conduct abroad”.
I wholly applaud that sentiment, but, equally, it should apply in this country and not only abroad. What has been said in the debate is most important as far as the Bill is concerned.
My Lords, I am not a lawyer, but I come to this Bill from the perspective of someone who has spent most of his adult life in boardrooms, living with the shadow of corporate homicide or manslaughter to be worked around or dealt with all the time. I am broadly supportive of the Bill, but deeply concerned that it may have a number of reverse effects to those that are intended. It must not take away or replace existing legislation to the extent that it weakens the ease and swiftness with which remedial action can be taken if an event occurs. In addition, we must remember that, if corporate manslaughter has taken place, we already have a dead body, so we have already failed. Therefore, the concern is how we can make the Bill work in such a way that it will act to save lives rather than just to enable remedial action afterwards.
I have eight concerns with the Bill as it stands. I shall run through those concerns and then, if I might burden the House, I shall refer to several case studies drawn from the 12 instances that have ended up in deaths over the past 30 years or so, and consider how those cases will play in the context of the Bill as it stands.
My first concern is that the definition of “corporate manslaughter” appears far too broad. It needs to be much more precise and provide some kind of route map for company boards to follow through a decision process to avoid what might otherwise lead to a catastrophic decision. They need more help than the Bill offers at the moment in doing so. No board ever sits down with an agenda to develop a strategy to kill its employees, customers or the public. It is usually some tiny, imperceptible decision that is made, quite innocently at the time, and one thing leads to another. We need to get people to think within the discipline of a structured approach to stop the nonsense that occurs.
Secondly, no weight or significance is attached in the Bill to the motives that may have led to corporate manslaughter. This is a major deficiency, particularly when giving guidelines to juries about how they should assess whether there was a financial incentive. Often there will be. In some of the cases that I will identify, there were massive financial incentives, which resulted in benefits to the company when it managed to kill someone. The borderline between manslaughter and murder is quite narrow but it needs better definition. I am thinking particularly of a situation where someone’s negligence results in the death of an employee in trying to put on pressure to complete a contract ahead of time to avoid a penalty clause. There is a financial inducement to the company to do so and such cases should carry the risk of a higher penalty if they occur. Such cases are not reflected anywhere in the Bill.
Thirdly, the Home Office commentary notes provided with the Bill are not entirely helpful. Sometimes they appear to conflict with the wording of the Bill. Corporate manslaughter is not executive manslaughter and there is confusion in the wording as to the crossover between executive action and corporate action, which I take to mean board action. That needs serious clarification; otherwise it will provide a board’s charter for buck-passing on to lower levels of authority within the company. That is a very important point.
Fourthly, I am very unclear, after numerous readings, as to whether a prosecution could run separately against the corporation at board level only, or whether it must necessarily entail a parallel and separate prosecution of one individual in authority. The drift of the discussions today appears to be that that is completely wrong. But I draw attention to paragraph 54 of the Explanatory Notes relating to Clause 16, which appears to be in conflict with the wording of the Bill on that issue. That matter needs address and probably correction.
Fifthly, I am surprised at the limited jurisdiction that applies in the Bill, as many of the most dangerous assignments that emanate from a board in this country relate to putting employees, consultants and advisers in harm’s way in foreign countries way beyond the jurisdiction presently intended. That is a very big, undesirable diminution of responsibility given the number of people who are now engaged, for example, in rebuilding programmes in Iraq and so on. It is a hole in the Bill that needs to be urgently addressed. The Bill needs a bigger geographical jurisdiction.
Sixthly, there is no reference to a failure of a duty of care on behalf of foreign nationals who might be working for a British-based company. Often you will end up inadvertently having foreign nationals sucked into a work process that leads to the death of such individuals along with the British. If the instruction comes from a British board and is made in Britain, surely that is the jurisdiction that should apply, no matter where we kill anyone around the world.
Seventhly, one of the biggest concerns is that the Bill appears to downplay its implications for the public as opposed to employees. It is too concerned with the death of employees and not enough with the death of members of the public that might be caused by incompetent action unleashed by a board.
Finally, the Bill is wholly concerned with manslaughter, which equals death, and not enough with the halfway stage of the very serious consequences of severe personal injury, which ought to be brought within the same compass. That is a very important point.
As to penalties, it is bizarre that if, as the chairman of a company, I make a decision that is clearly attributable to me and which results in the manslaughter of an employee, I should then be able to say, “It’s the board that’s done it. I am not going to be part of that responsibility and, in any event, the company as it is corporate will pay the fine, so I get off scot-free”. There has to be some personal identification of responsibility and penalty for individuals who make the decisions going up to the top.
Having expressed those eight concerns, I shall now give some examples of how manslaughter situations have potentially arisen in the past. The Bill in its present form is far too simplistic; it is almost at the level where it is fine if you drop a ton of bricks on the head of an employee because that is quite straightforward. On the other hand, that is not the way in which corporate manslaughter occurs. Boardrooms are much more complicated than that.
As a start point, let me give the example of a simple case that occurred in 1981. I offer it as the first case because it would still have the same consequence today. It is the only one of my examples that went to court, where a significant award in damages was fairly given. It concerns a foundry operation that had just succeeded in making the biggest ever flat-faced casting in history—it was 14 feet high and weighed five tons. The foundry was very proud of itself. When the casting came out of the furnace, it was glowing red hot and the board decided that it would be wonderful to take a photograph of it for the purposes of promotional material. They lined up the photographer and asked for two volunteer employees to stand in front of the casting. However, they did not allow for the fact that the non-glowing side of the casting would cool faster than the red-hot side. The casting became unbalanced and toppled over, and the employees were both crushed and cremated at one stroke. Such a case would probably have the same consequence under the Bill as it stands today. It was adequately covered by health and safety legislation at the time. Although I do not think that the Bill provides anything new, nothing is lost in terms of its impact.
My other examples are much more complex. The second one involves a company that, in 1982, won a contract for fitting out television studios that were being built at Basra and Kirkuk in Iraq—names now familiar to us in another context. It was a big contract and involved employing a project manager in Iraq who had to be an Iraqi national. I was chairman of this company. We recruited a Christian Iraqi to be our onsite manager for these two projects. After a while, we ended up being owed £9 million by the Iraqi Government, with no payment forthcoming. We were covered by ECGD and had secured a loan from the Bank of Scotland for the £9 million, but we had to repay it. The bank was pressing us and we were facing potential bankruptcy.
I called the site manager to England to decide what we would do. He said that we would have to go directly to the Minister for industry, who was the end customer in Baghdad, and demand payment. I said, “Go and do it. Can you get a meeting with him?”. He said, “Yes, I think so”. I said, “How do you do that?”. He said, “I will have to talk to his secretary and it will be a matter of negotiation”. I said, “What does that mean in real speak?”. He said, “I will probably have to slip him some money to get the appointment”. I asked, “Is that normal out there?”. He said, “Yes, it’s the only way you ever get an appointment”, so I told him, “Do what you have to do”. Those may have been fatal words, because he went back to Baghdad, slipped $50 to the secretary to the Minister for industry, was caught doing it on video, charged with a crime against Allah, put on trial and sentenced to death. Twelve weeks later he was hanged—a strangulation hanging—on a lamp post in the middle of Baghdad, all his assets were taken away and his wife and six children were put out on to the street to beg and die.
This was totally motivated by money—we needed that £9 million—and there is a serious question about executive responsibility. One knew that he was putting himself in harm’s way and did not stop him doing it, but the greater priority was to get the money; the board acts on behalf of the shareholders and of the financial interests of the company’s banks to do what it can to sustain the financing. As I look back on that case, it worries me. The irony was that, in the immediate aftermath, Saddam decided that he wanted to invade Iran again, so he immediately sent us £9 million in American money and proceeded to offer us an incentive to accelerate the completion of the work so that he had studios available in which to put out films of his great new military victories.
My second example—which also, in retrospect, concerns me greatly—relates to a company that had the contract for repairing the pipeline that flows between Port Darwin in the north of Australia and Papua New Guinea—a very narrow and shallow water. It was so vital that this was done quickly that a clause in the contract said that if we did not finish by midnight on a certain date we had to pay a £3 million penalty. One Saturday night—the date by which we were due to finish—I got a phone call from the skipper of the diving ship to say that he was in a force 8 gale, could not complete by midnight and had to stop work. That would have been fatal for the company. I said, “You must continue”, and he said, “I need an order to do so because I think it is dangerous”. I said, “Do it. Get your divers to volunteer and pay them all a £5,000 bonus if they complete by midnight”. Half an hour later, the skipper was back on the phone, saying, “We followed your instructions but we have a dead diver. He’s been washed away”. The diver had done something particularly stupid, and I think that there is an issue here which is not clear in the Bill. He had indulged in a practice called riding the wire. You come up without the diving bell by shinning up the control rope to the diving bell. This Australian gentleman—not named Shane Warne, unfortunately—decided to shin up the wire and got washed away in the process.
The sting in the tail of this story is that, because I had a dead diver, I had adequate grounds for claiming force majeure not to pay the £3 million. I had a direct financial value relating to having a dead diver. Had I realised that in advance and sought to engineer it, I would have had a case of murder. I seriously doubt whether the workings of a corporate manslaughter process, unless the jurisdiction extends to it, would be otherwise identified by any other police authority to the point where it would investigate that sort of action which led to a death. The company was owned in Britain and the diving boat was owned by Britain. The Bill is ambiguous: does the fact that a British boat is used extend the jurisdiction, even if it is not in the waters that the jurisdiction is said to cover? That needs clarification.
My final example relates to a wider mass killing potential, although in this case it did not happen. In 1989, it was discovered that one of my companies was manufacturing what came to be known as the Iraqi supergun. The supergun was sent out to Iraq and submitted for a test trial at Babylon, whereupon it promptly blew up and killed all eight members of the test team of the Iraqi army. Some might say that it was their tough luck—a bad day at the office. However, the Iraqis immediately ordered replacement pipes and, by then, it was clearly known what the pipes were for, so the company could not claim that it thought that they were for a petrochemical plant. There ought to be a wider concern for the failure to adopt proper disciplines for end-user certificates, and so on, and for proper export controls, which were breached in that case. Those breaches should also represent cause of corporate manslaughter.
I am sorry to have taken up so much of your Lordships’ time, but it should be understood that these issues have wider implications and are much more complicated than the Bill anticipates.
My Lords, I will be brief and probably not quite as colourful as the noble Lord, Lord James of Blackheath. He made me think of my early years of wearing a boiler suit and overalls and working for swashbuckling entrepreneurs, most of whom, rather than enthusing me, sent me running to join the trade unions. But that is another story.
Many of the points on which I want to speak have already been mentioned, particularly by my noble friend Lord Clinton-Davis. Many have been touched on in another place, and I know that colleagues will speak on them today. I am a member of UNISON and was an official for 25 years. I am also the non-executive chairman of Thompsons Solicitors, a leading personal injury law firm, although I am not a lawyer.
I welcome the Bill and strongly support its broad intentions as set out by the Minister. I do not want to repeat what has been said about the incidence of high-profile accidents that have led to workplace deaths except to acknowledge the devastating effect that these have had on individuals and their families. There is a deeply serious weight of history around this debate arising from lives that were damaged and may never recover. That weight of history has provoked an overwhelming public concern that rightly demands a law on corporate manslaughter. The lack of successful prosecutions against corporations has led to the public belief that the law is inadequate and needs to be reformed. There is widespread public concern about the lenience shown to workplace deaths as opposed to the deaths that occur outside the workplace. We should remember that we are doing this on behalf of ordinary working people and their families.
I am hoping that the new law will help to change the culture at work and in business and the attitude of companies to health and safety at work. The real benefit of a law in this field would be a dramatic reduction in the number of fatal accidents at work. That is what I would really like to see. When we talk about the law, remedies, penalties and all the arguments that lawyers get wrapped up in, we must remember that we are trying to change the culture of the workplace so that employers increasingly have a culture of responsibility towards working people.
It is important that the Bill builds on the current health and safety laws and rules. That framework is very important; employers and unions are already familiar with it and it works reasonably well.
I want to speak briefly about the responsibility of individuals. I know that there is no real agreement on this; other noble Lords will wish to speak on it and I hope that the Minister will deal with it. Nothing in the Bill will lead to directors who make decisions being held responsible and liable for those decisions. Although the Bill will make it easier to bring corporations to justice after a fatality, those who run such organisations may still not take preventive measures in the future. This matter has been discussed briefly here today and at length in another place. There is a feeling on these Benches that the job will not be properly done if only companies are held to account, but not the individuals who run the company or who contributed to the problem. We must debate this further.
I know that there have been calls for secondary prosecution under the criminal law as well as for disqualification of directors. I am aware also that discussions are taking place with the work and pensions Minister about perceived shortcomings in other areas of health and safety legislation. While director responsibility for health and safety is not directly involved in this debate, it is certainly a related issue. It might be a route to explore to make sure that justice is done. What is needed is an agreed way forward that will ensure that the board of directors and individuals cannot evade responsibility simply through paying fines.
I have expressed concern about the shortcomings of fines as a remedy. A one-off fine may not be seen to be enough; it may not be seen to be fair. Public expectations will rightly be high as a result of the Bill. The public should watch the Bill’s progress and its outcomes very carefully. Will fines be such that the public will see that justice has been done? Or might they lead just to further cynicism? The public have felt in the past that fines have been neither appropriate for nor proportionate with the offences that have been committed. Fines need to be commensurate with the offence. I presume that they need to be commensurate also with ability to pay, which opens up another host of questions about what companies will do. It is widely thought that courts need a wider range of remedies. People have spoken about disqualification and scope for wider thinking. I sense that a wider debate about this is going on in Parliament, with the possibility of an amendment about corporate probation being introduced. Without going into that in great detail, I would certainly welcome a serious examination of that approach.
As well as being a lifelong member of UNISON, I am proud to have been given the opportunity to be a director of Britain’s second largest mutual building society, Britannia. It employs 5,000 people. Sitting in the boardroom, as opposed to being a union official all one’s life, gives one a sense of the level of responsibility involved and what it is like to represent people in a different but important way. I and my fellow directors around that boardroom table take full responsibility for health and safety at work. It is dealt with at board level, and so it should be. We all value people and take health and safety very seriously. We also have an enlarged policy on corporate social responsibility, which we should talk about in this debate. It means that we take the safety of our staff and customers very seriously.
In my humble opinion, good business should have nothing to fear from this Bill, because the Bill offers an opportunity for continuous improvement in looking after people’s welfare at work. That is what all companies should seek to do. It is an opportunity also for those companies that have perhaps fallen short in the past to reassess the importance of this issue.
My Lords, I declare an interest as a member of Amicus and a past president of two of its founder unions, ASTMS and MSF. Like most of my colleagues on this side of the House, I welcome the Bill. The Minister was right to refer in her opening remarks to the “Herald of Free Enterprise”. There have also been notable rail disasters and the Kings Cross fire. In all those cases, the law was not as effective as it should have been and people thought that justice was not done.
For that reason, while I welcome the Bill, I want to put some teeth into it during its passage in Committee and on Report. The Minister appeared to say that a principle of the Bill is to make large corporations responsible. A large corporation can quite easily accept financial liability without any detriment whatever. I and, I am sure, others will argue that there must be some individual responsibility as well. The noble Lord, Lord James of Blackheath, described in what I thought was a cavalier way the case of people killed while standing in front of a casting to have their photograph taken, and the example of people being ordered to work harder and losing their lives. Someone should be responsible. If those within companies were responsible and faced the threat of going to prison, then health and safety would achieve a higher priority than in the past. It is important to realise that, because we are talking about people’s lives being at risk. That is why I welcome the Bill, but, at the same time, I shall seek to improve it. There is no doubt that companies themselves do not kill people; it is the people working in responsible positions for companies who are responsible for the disasters that have occurred. That is why we must make sure that they are brought to account.
We must address also the question whether it is sufficient for companies to be fined or whether there should not be a climate of naming and shaming them for the actions that they have perpetrated. That goes also for the individuals involved. It has always seemed strange to me that if a person is a director of a company and there is no financial probity in that company, they can be disqualified as a director, yet causing the death of somebody in that company brings no disqualification. We should certainly be looking to ensure that directors and senior executives who are responsible for these events are disqualified and not allowed to be directors of other companies. We should try to prevent disasters occurring. That is why we should talk not just about companies but individuals as well.
I and my union believe that a statutory duty should be placed on the directors and senior executives of all companies to take responsible steps to address health and safety in order to prevent these events taking place. I hope that the Minister will give us some movement on this during the passage of the Bill. On the evidence of the contributions today, the Bill will have very interesting Committee and Report stages.
I thank the Minister again for approaching these matters in a spirit of co-operation. She spelt out effectively what the Bill contains. It is a step forward, and I welcome it. She also said that if a reasonable case is made, it will be listened to and, if necessary, action will be taken on it. I look forward to tabling and discussing amendments and, perhaps, to improving the Bill still further for the benefit of ordinary people.
My Lords, I, too, support the intentions of the Bill, as there is concern—not only from trade unions, one of which I worked for over many years—about the inadequacy of current legislation when deaths occur as a result of the failings of organisations. Despite a number of major incidents, some of which have already been referred to, which are still all too vivid in the memory and which involved large organisations, the only successful prosecutions, which have been small in number, have been against small companies. In those cases, first of all, a directing mind of the organisation has been identified who is also guilty of the offence of manslaughter. But in large corporations there are more complex structures as well as devolved functions, which make it effectively impossible under the present legal criteria to identify a directing mind who is also guilty of manslaughter, which is required before a successful prosecution for manslaughter against such a corporation can be achieved.
Under the Bill, the new offence of corporate manslaughter will be dependent not on the guilt of one or more individuals but on whether the activities of an organisation have been managed or organised in a way that amounts to a gross breach of the duty to take reasonable care for a person’s safety, and which causes the person’s death. One key question is whether the potential sanctions against an organisation convicted under the Bill will be sufficient to improve safety, bearing in mind that those sanctions—an unlimited fine or a remedial order—appear no different from those already available under the Health and Safety at Work etc. Act 1974 when a death has occurred.
The only fines that will change attitudes, when those attitudes are in need of change, are ones that impact significantly on the finances of an organisation and thus cause directors to face awkward questions from shareholders about their stewardship and competence. The likelihood of such fines being imposed, bearing in mind the experience under the Health and Safety at Work etc. Act 1974, is debatable. Would it not be advisable to have other sanctions available that might impact more directly on those at the highest level in a company that has been found guilty of manslaughter? As other noble Lords have asked, should it not be possible to consider disqualification of the directors most involved or naming and shaming the companies concerned? After all, we are talking about gross negligence as a result of which people have died. We are talking not about instances of less than effective management but about something far more serious and less frequent. The Government do not anticipate many cases: 10 to 13 additional cases of corporate manslaughter or homicide a year following implementation of the offence.
Perhaps consideration should be given, too, to placing companies found guilty of the new offence under some form of probation. Such sanctions are far more likely to spur into action company boards that do not keep a proper grip on the management of safety than a fine, which may seem huge to the person in the street but is small in relation to the company’s turnover or profitability.
This Bill is about making it easier to bring corporations to justice following a fatality when there is gross negligence. It does not address the role of individual directors. Is it the Government’s intention, in order to make the new offence of corporate manslaughter more effective, to take steps as soon as possible to place on directors a statutory duty to take all reasonable steps to comply with health and safety obligations? After all, it is not organisations that kill people but the actions of people in those organisations. High standards of safety are not achieved simply by putting in appropriate processes and procedures and ticking the appropriate boxes when that is done; they are also about culture and attitudes throughout an organisation—culture and attitudes determined by the actions and approach of senior management. If directors are not to be held directly to account when their decisions and approach have led to the gross negligence that has resulted in a fatality, it is less likely that those who need to do so will take the necessary preventive measures to ensure that such deaths do not occur in the first place. There is value, especially when lives are at stake, in deterrent measures against a gross breach of duty of care.
The Joint Select Committee in the other place that looked at the draft Bill recommended that it should establish secondary liability for those who connive, conspire or collude in an act that results in death. It argued that under the draft Bill there would be a gap in the law when individuals in a company had contributed to the offence of corporate manslaughter but there was insufficient evidence to prove that they were guilty of individual gross negligence manslaughter. From April 1999 to virtually the present only 15 directors or business owners were personally convicted of this offence. The Government rejected the recommendation from the Joint Select Committee. I hope that at some stage the Minister will be able to comment on why the Government consider such an approach to be unacceptable and inconsistent with the objective of the Bill, which is surely to further enhance safety and reduce the number of deaths from gross negligence.
In any legislation of this nature, one must ensure that it will not impose unnecessary additional burdens, responsibilities or costs on those affected. Bearing in mind the low number of additional cases that the Government anticipate as a result of the Bill and the fact that it is aimed at creating a new statutory offence of corporate manslaughter by gross negligence, which will replace the common-law offence of manslaughter by gross negligence with regard to corporations, it can hardly be argued that it will impose such additional burdens, responsibilities or costs.
The Bill should make an important contribution to further improving safety if it makes corporations more effectively accountable under the law than they are at present for major failings that result in death. The likelihood of facing a successful prosecution can help to concentrate minds and change attitudes at the highest levels in those organisations when safety is not given the consideration and prominence that it should receive. If the result of the Bill is to reduce the number and magnitude of incidents resulting in deaths through gross negligence, it will have achieved its main objective. Even in respect of those incidents that continue to occur, the Bill may enable the relatives and friends of those who have died to feel that justice has been done through making somewhat easier the successful prosecution of companies that have seriously failed in their duty of care.
Major safety failings cost money as well as lives. High safety standards cannot be achieved on the cheap, but compared with the cost of a major incident in lost lives, lost business and lost reputation, delivering such standards represents real value for money. I believe that the Bill will further enhance safety and save lives but, unless the Minister can persuade me to the contrary, I think that it could be made even more effective in that regard.
My Lords, I join all those who have expressed their gratitude to the Minister for the clarity with which she introduced this subject. I am sure that at the same time I express the feelings of the majority of, if not all, noble Lords, in admiring the stamina and courtesy with which she has coped with a quite horrendous legislative load during the year. We wish her a peaceful and restful Christmas break.
I will not deal with the issue of the Armed Forces raised today, except to say that I was interested to see the comments of the coroner about the death of Sergeant Roberts and the corporate responsibility of the Ministry of Defence. In earlier discussions on that issue, serious concerns were expressed about the lack of resources available to the Army to buy sufficient flak jackets with which to equip everyone required to go on operations. Therefore, when we start looking at where the buck stops on that issue, I suspect it will go right to the top.
I shall follow on from the two marvellous speeches by my noble friends Lady D’Souza and Lady Stern, which showed their usual clarity and wisdom, and concentrate on an issue mentioned by many noble Lords: deaths in custody, which at present is excluded from the Bill. It is a particular interest of mine. In 1999 I was invited by the then Minister of Prisons, now the noble Baroness, Lady Quin, to conduct a study into the prevention of suicide in prisons and to make recommendations. I concluded that report by saying:
“Central to my recommendations is the need for a ringing declaration from the Home Secretary, through the Director-General, to everyone in the Prison Service, that suicide and self-harm can and will be reduced, and that accountability for delivering that reduction begins at the top and goes right down to the bottom”.
We found that the current strategy had been only partly implemented. There were serious deficiencies in the application of the policy; for example, ignoring the need for case reviews, the absence of quality checks on vital documentation and inadequate training of staff. Above all, though, there was an absence of total ownership of the strategy by some senior managers. It is abundantly clear that any systems devised will be useless unless accompanied by the total ownership of, and commitment to, their implementation throughout the Prison Service.
The Minister commented on what she described as infection with the disease of sloppiness. It was the sloppiness I found in management that concerned me most; for example, we found that staff had done nothing to take away the chewing gum and sticking plaster that had been used to disable audible alarms in staff offices so they could not be heard from cells. Also, nothing had been done to eliminate the practice by some nurses of writing up beforehand the 15-minute observations they were meant to carry out. At 2.15 it was discovered that every observation for the next two hours had been completed as if it had already happened. It is that sort of sloppiness in management that time and again contributes to some of the unnecessary deaths in custody.
I am therefore delighted that at Third Reading in the other place, Mr John Denham and Mr Andrew Dismore, who have been quoted already, referred to this issue and to the illogicality of protesting that the current system of inquiries is sufficient to satisfy public concern about unnecessary deaths. I endorse entirely the cases mentioned by the noble Baroness, Lady Stern: those of Edwards and Scholes. I shall add two more. The first is the case of Sarah Campbell, who committed suicide in Styal prison, a matter mentioned in this House many times.
The other is the case, with which I am currently involved, of Paul Day, who committed suicide in Frankland in 2002. When the inquest met to consider the Day case, the jury made some very stinging remarks that bear repeating. The jurors believed:
“The decision to move Paul to HMP Frankland was inappropriate. Information provided to HMP Frankland”—
by the place from which he had been sent—
“was inadequate. The failures in the system are … lack of communication between prisons … lack of procedures in place for transfers … management should be more involved in transfer procedures”.
The jury found that:
“The systems in place to effectively manage and care for Paul were inadequate. The dirty protest protocol was not adhered to. There was a lack of staff on night shifts”.
The suicide system failed as,
“checks by management were not done on entries, and the complaints procedure was too slow”.
I can think of nothing more descriptive of sloppy management. The situation deserves more than an internal inquiry that never sees the light of day and never satisfies the family, who are the victims on this occasion.
It seems perverse, at best, to exclude that sort of incident, which is perfectly allowed for under this Bill, the majority of which I agree with. Crown immunity has now been removed. Senior management is included in what is to happen. Here is a priceless opportunity for the Government to show their commitment to everything they have so often preached, such as rebalancing the criminal justice system in favour of the victims. The victims here—the families—do not have the system balanced in their favour in any way.
Incidentally, I note with concern that the coroners Bill, which also has relevance to this issue, is not among the 29 Bills due to come to us during this Session. The inquest is something families look forward to, believing it will do more than they currently receive from the Prison Service. The present system does not allow that to happen.
I am also interested to see that the role of the Chief Inspector of Prisons has been mentioned here. As chief inspector I was not involved in the investigation of these events, nor is my successor. The person who does that is the ombudsman, who is responsible for the investigation of the investigation of grievances, not of the treatment and conditions of prisoners. That may be the wrong person.
With regard to the remarks of the noble and learned Lord, Lord Lyell, about resources, the duty of care cannot be exercised just like that. It requires the resources to enable that duty to be universal and cover all needs. I am sure the Minister is as disturbed as I am to learn that next year there will have to be what are described as the biggest cuts yet in the Prison Service in order to pay for the Home Secretary’s promise of 8,000 new prison places. When the voluntary sector co-ordinator was addressing the National Offender Management Service advisory group this week, and was asked specifically whether that meant cuts in the work that NOMS had identified as the pathways to re-offending, he replied that that is not the way it should be but that is what will happen.
I mention that because on top of all our concerns about the exclusion of custody from corporate manslaughter, I am concerned at what may happen if all the add-ons and activities in prison that are designed to prevent suicides and other such events are harmed by the reduction in resources. If that happens, the responsibility for that reduction, and therefore the reduction in the duty of care, should also fall to those who are responsible for providing the resources.
In our debate on 9 June, the Minister closed with the following sentence:
“There is probably no area of government where human rights are more crucial to citizens than when they are being detained in the care of the state, whether in prison, a police cell, detained under the Mental Health Act or elsewhere in an institution”.—[Official Report, 9/6/05; col. 1057.]
I am sure everyone agrees with every word she said, and I hope that when the Bill comes to Committee, as I hope it will, the Minister will be able to demonstrate that by the reversal of what is currently not worthy of the remainder of the Bill.
My Lords, I very much welcome the Bill. In so doing I should declare two current interests. I am a member and occasional adviser to my trade union, the GMB, and I am the chair of the National Consumer Council. Workers, employees, customers, passengers and clients of organisations are likely to benefit from the Bill’s additional protection. I also refer to some past interests. More than 20 years ago, a few years after the Health and Safety at Work etc. Act was passed, I was responsible for health and safety in my union. The Act made substantial improvements in the procedures and management of health and safety risks in a large swathe of industry which up to that point had been subject to seriously high accident and exposure figures. By the early 1980s there was a clear gap in provision when the whole system failed and we were faced with a tragic death in a factory or shipyard.
It took an awful long time to get from that point to this Bill. In 2000-01, I was a Minister responsible for health and safety. At that time this issue was very much discussed around Whitehall. There appeared to be arguments in Whitehall and beyond, probably put forward by the more precaution-inclined government lawyers, that we could not proceed very far down the corporate manslaughter path. I am very glad that Ministers have now brought forward this Bill to introduce a major deterrent and to protect people who suffer from substantial corporate negligence.
I also welcome the Bill’s lifting of Crown immunity. There are arguments about how far that goes but we should recognise that large swathes of management and organisations in the public sector, whether in local government, housing, the health service or government corporations, are now subject to the same disciplines as the Bill extends to private sector management and corporations. That is right. As the noble and learned Lord, Lord Lyell, said, no one in those positions with a duty of care should be above the law.
The following points are not new; most of them have been touched on. On the offence and the penalty, as my noble friends Lord Rosser and Lord Sawyer said, there is inevitably an issue about who is responsible, as well as of redress for the bereaved families of those who have tragically died. Accidents and fatal exposure do not occur in a vacuum but within the culture and structure of management of a company. They rarely come as a bolt from the blue that one cannot anticipate. They arise from a way of working, an attitude of mind and the priorities which the company sets. As the noble Lord, Lord James, says, responsibility for that rests ultimately with the leadership of the company—the board of directors. Accidents arise in a number of ways: through corner-cutting; a general atmosphere of sloppiness, as has been said; and a huge financial incentive to get the job done on time. All those can affect the situation, but they are also matters on which the leadership of the company or the public sector organisation have a role to play in ensuring that health and safety are not neglected while those other management objectives are pursued.
Some industries have a higher level of fatalities and serious accidents than others and there may be difficulties with the way in which the Bill operates. Historically, the construction industry has been notorious for accidents. Although improvements have been made in recent years, there is still the problem that on a construction site it is not entirely clear which company is responsible for procedures or accidents. It has started to be the case in the construction industry, largely on a voluntary basis, that the head contractor takes responsibility for what goes on on site. I therefore assume that in those situations—it would be helpful to be given clarification on this by my noble and learned friend the Minister—offences of corporate liability and corporate manslaughter would apply to the head contractor and would not necessarily be passed down through a whole network of overlapping subcontractors on a site.
Agriculture is another sector in which I used to have responsibility and where the number of incidents is too high. In that case a corporation is rarely at fault. Again, an attitude of corner-cutting and general sloppiness within the industry needs to be addressed. Other sectors come into this category. One that was recently drawn to my attention by the GMB was waste management, where subcontracting is involved and where the recent landfill regulations and other regulations regarding the disposal of waste have led to serious corner-cutting, cost-saving and accidents both in transportation and the handling of heavy and dangerous materials. I think I am right in saying that in a recent quarter there were five fatal accidents in the industry. Although it has a small number of employees, there is obviously very high risk. Again, it is important that the culture of the industry changes. That culture is set largely by the directors of the industry’s major firms.
It is therefore important that we take on board the point made by other speakers; namely, that while the offence of corporate manslaughter and the penalties in the Bill are important, it is also an important complementary approach to recognise in law the responsibility of directors. When we abandon—rightly, in my view—the need to identify the personal responsibility of a manager or director for the health and safety system that caused the incident and the death, we should not absolve the board of directors as a whole from the responsibility for setting the climate and priorities for the health and safety regime which operates in their areas. Therefore, I hope that the Government will give further thought to the suggestion put forward by the Joint Select Committee regarding secondary liability for directors in these circumstances.
On exclusions from the measure, I shall not repeat what was said on prisons, and expressed much more eloquently, by the noble Baroness, Lady Stern, and the noble Lord, Lord Ramsbotham. However, there are issues in that regard. I am also a little concerned that the Bill appears to exclude all non-incorporated bodies when some substantial non-incorporated bodies employ people and have a duty of care to people on their premises or to their patients or clients. I am not sure whether the Government are minded to include those organisations through amendments to the Bill or in an extension of the legislation.
On penalties, the reference to an unlimited fine is not unique: it has appeared before. It would be interesting to hear the Minister respond to the point that I believe was raised by my noble friend Lord Rosser on whether an unlimited fine in this context means anything different from what it means vis-à-vis the Health and Safety Executive’s ability to prosecute health and safety offences. Under previous legislation, fines for these offences have in most cases been relatively low. As my noble friend said, small employers have largely been hit by this. Therefore, the question of means comes in. Nevertheless, it is important to recognise that if larger corporations are subject to such penalties, unlimited fines should mean what it says. I am not sure whether there should be gradation of fines in those circumstances. Clearly, the degree of responsibility will vary.
While I was fascinated by what the noble Lord, Lord James, said, I am not sure that I entirely agreed with what appeared to be his conclusion; namely, that if there was a clear financial incentive to adopt the procedure that caused the death of an employee or somebody else, it would be a more serious offence—akin to murder—than the offence of causing a death through general sloppiness. The result is the same and in a sense the responsibility is the same. If general sloppiness is the culture of the organisation concerned, the death is caused by those who set that tone and those priorities.
I accept that there may have to be guidelines in the gradation of penalty and that alternative or escalating penalties will need to be considered. The issues of reputation and of naming and shaming, when the full penalty is perhaps not exerted, are also very important. Professor Macrory is about to report on alternative remedies. We need to be creative in considering alternative and perhaps lesser remedies when the equivalent of gross negligence is not proven, and in the novel use of remedial orders. Indeed, the National Consumer Council, of which I am chair, recently suggested the use of such reputational and other remedies in various areas of regulation. Where we cannot prove the “big issue” of a corporation’s total responsibility, we may be able to exert—post, if you like—other remedies to ensure that that corporation recognises the importance of breaching its duty of care, even if the full penalty is not appropriate in the circumstances.
With those qualifications and questions to the Government, I very much welcome the Bill. I hope that there will be room for some improvement or at least for discussion. As for directors’ responsibilities, I hope the Government will recognise, either in this Bill or in another way, that that is another dimension and another gap in the health and safety regime that needs to be rectified. Workers and those who use the services of corporations will be somewhat more protected as a result of the Bill’s passage into law. I congratulate the Government on reaching this point.
My Lords, to legislate on criminal liability for causing death is profoundly serious parliamentary business. That we should be doing so in the context of companies being held liable for causing death introduces novel concepts into our law. Those considerations of corporate manslaughter and their novelty led the Law Commission in 1996 to lay the foundations of the Bill. It produced its report in the light of all those terrible disasters of the 1980s: the “Herald of Free Enterprise”, Piper Alpha, the Clapham rail crash, King’s Cross, and so on. Each of those disasters had a profound public impact, raising a public question. How can it be that such events can occur and be found to have occurred as the result of the grossest of negligence and yet no one suffers a criminal penalty? The public will therefore look at this legislation not only for its content but for its effect in time to come. When the Government introduced their consultation paper in 2000 and said that this area of the law needed radical reform, they were right. The Bill seeks to achieve that. Although some noble Lords have many concerns regarding deaths in custody and the like, the thrust of this legislative change affects the workplace, transport, premises and, unhappily, as the noble Lord, Lord Whitty, indicated, the environment. This is not going to go away.
I therefore invite your Lordships to consider two major aspects to this legislation—the scope of the offence and the means of enforcement—to determine whether we can make the Bill as effective as the public would want it to be. First, on the scope of the offence, my noble friend the Minister said that she wanted this legislation to introduce a clear and effective definition of the offence of corporate manslaughter, and to do so in respect of a company, not individuals. I agree, as did the Law Commission, that the target should be the company. I say to my noble friends on these Benches who are concerned about that: let us not forget that it is still open for directors and company servants to be prosecuted under the Health and Safety at Work etc. Act regardless of any prosecution for corporate manslaughter. The Bill does not replace such prosecutions under the Health and Safety at Work etc. Act; there may be occasions where both complement each other.
I raise the following thought. As a company, you cannot insure for an insurance company to pay your fine for a criminal offence, but you can insure for legal advice and representation in proceedings in which you are prosecuted. Therefore, the Bill will receive exquisitely careful attention by lawyers acting for companies that have come into the firing line. The first target will be the question of the involvement of senior management. Clauses 1(3) and 4(1)(c) provide for an essential component of the offence. I will not go into the detail at this stage, but let us look to the reality. Ruth Lea, when head of policy at the Institute of Directors, said that if you try to identify an executive director on a board as the safety director, no one will take the job. We know from common experience, do we not, that safety in companies is completely designated and delegated down the line, away from the board? We should therefore ask in Committee whether we have properly identified sufficiently carefully the responsibility of senior management so that they cannot delegate down the line.
Section 172 of the Companies Act just passed by Parliament creates new, positive duties for directors. I should have thought that one of those positive duties, in spirit if not in letter, is the safety of the company’s activities. Again, one notes that Section 18 of the Health Act 1999 provides that every chief officer of a National Health Service trust is required annually to certify publicly that effective systems operate in the trust for the care, monitoring and improvement of healthcare. I ask rhetorically: why should there not be the same for safety in the public arena? That is a point for consideration.
My first point was on the scope of the offence and senior management. My second point is on company structures. Any observer of modern company life will see it as diffuse, geographically diverse and very difficult to track in terms of ownership of assets and key responsibilities. Most companies that have a parent structure will operate under a parent that farms out wherever it can risk business to a subsidiary. What happens when the subsidiary is prosecuted but the assets are held by the parent? We should investigate that in Committee. What happens to British workers abroad? If the management failure occurs in the United Kingdom but the harm or death occurs abroad to British workers, wherever they are, as I read the Bill, there is no liability. And yet an individual British citizen can be prosecuted for manslaughter in this country wherever he commits it.
I turn now to the question of enforcement. A fine is a deterrent; remedial orders are a constructive process to avoid further harm. In passing a sentence of £15 million in fine, Lord Carloway, in a case in Scotland last year, said: “The level of fine” requires to,
“be such as will alert those operating undertakings on the scale existing here (and in particular their shareholders) that”—
“do, and will continue to, regard breaches of”—
“as extremely serious where they involve exposure of the public to death or serious injury on a long-standing and extensive basis”.
That is a principled start. What, then, of the amount? Is it to be a percentage of annual profit or annual turnover? Is it to follow the Environment Agency’s route? As the years have gone by, it has produced tables that enable the courts to distinguish factors that go towards an increase or decrease of fine. These are very serious issues. The public will expect consistency in the imposition of fines.
I turn to remedial orders. I regret that in Clause 9 the prosecution appears to be the vehicle for seeking a remedial order, which can be very wide in its application to safety systems. I regret not that it is the prosecution but that the prosecution appears to be limited to taking into account the advice of safety authorities such as the Health and Safety Executive. In a number of the disasters with which I have been involved—Paddington is an example—the Health and Safety Executive itself was sued for its long-term failure properly to regulate the activities of the rail companies. The prosecution should have a much wider remit to take outside expert advice and, if needs be, the opinions of trade unions and interested parties, even from the company’s side, in order to achieve effective remedial orders. Beyond that, surely a company that has an order imposed on it should report to its shareholders in the annual report the full circumstances of what it has done to remedy that which the courts said it should do.
To conclude, we want a different corporate culture in safety. The day that this Bill becomes law, every decent company in the country will assess the following: its safety policy, its systems for safety and mismanagement, the adequacy of its monitoring and reporting chain on risk and safety, whether it has regular audits—internal or, where necessary, independent—and, above all, how it reports to its shareholders. Safety cannot be compromised in order to cut costs in the public sector or to make profit in the private sector. This Bill should make a new start for safe company activities in this country, and in the public interest.
My Lords, I am very glad indeed that we now have this Bill before the House. I should declare an interest: I am a member of Amicus and I was, for a number of years, assistant general-secretary of ASTMS, which was one of the founding unions of Amicus.
The Minister will of course be aware that the trade union movement has been seeking such legislation for a very long time. Concern over the inadequacy of the current law to deal with organisations whose failings lead to death or injury has been highlighted by a number of high-profile disasters, including the King’s Cross fire, the Piper Alpha oil rig disaster, the Southall and Hatfield rail crashes and many other incidents.
I particularly remember the Piper Alpha oil rig disaster because members of my union were involved in it. I remember at that time that, with the assistance of my noble friend Lord Wedderburn of Charlton, I introduced a Private Member’s Bill into this House with the aim of protecting the jobs of whistleblowers who detected unsafe working conditions on oil rigs and were too intimidated by the prospect of job loss to report on them. We managed to get agreement to that Bill and eventually it became law. But that only dealt with one aspect.
Although there have been successful prosecutions for manslaughter against companies, they have, as has already been said, all involved small companies in which the directing mind has been easy to identify. It has been virtually impossible to satisfy the current legal criteria with large companies. The present Bill is therefore welcomed by trade unions but, nevertheless, they seek what they regard as necessary improvements in the Bill in order to make it more effective. An amendment may therefore be sought to introduce a new clause entitled “Offence by senior manager”. That would mean that a director or senior manager could be found guilty of an offence if they were found to be responsible for the corporate manslaughter. Unless there are individual sanctions against directors or senior managers, there is little chance of this Bill changing the health and safety behaviour of directors and improving the management of health and safety at work. There is also a case for specific health and safety duties to be placed on directors and senior managers. This may well require an addition to the Health and Safety at Work etc. Act.
It has always seemed strange to me—and to others who have spoken in this debate—that severe penalties can be imposed on directors for financial malpractice but that there is no specific duty of care for the health, welfare and safety of the company’s workforce. I hope that during discussion of this Bill steps can be taken to deal with that anomaly.
There is also a need to include a provision in regard to a director or senior manager who is found guilty of aiding or abetting the commission of an offence of corporate manslaughter. That should carry a prison sentence, as indeed should the original offence. The unions want to see effective “naming and shaming” not just in the accounts or at Companies House. There should be disqualification of directors who are responsible for deaths. Further, it is proposed that effective orders should be made by the court that has heard the evidence to deal with the corporate failings that led to the offence. Named persons should be required to improve the failings that led to the offence. There should be a report back to the court on the steps taken, with any person referred to in any order as being responsible for the specified steps being guilty of contempt if those specified steps have not been taken.
There may also be a case for the inclusion of a clause dealing with the public interest, perhaps empowering the court to make public details of the offence, the sentence imposed and the steps to be taken to prevent a recurrence.
It will be seen from these suggestions that, while the Bill is broadly welcomed by those with a major interest in the welfare of workforces, the unions are anxious to ensure that the legislation has sufficient teeth to make it effective. It may very well be that the Government themselves have some tightening up in mind. My information is that Ministers have been very willing to discuss these matters.
I await with interest the Minister's response before deciding whether to frame some amendments in line with the suggestions that have been made in this debate. Again, I emphasise that we welcome the Bill and we want to see it on the statute book. We want to ensure that it is as effective as we can possibly make it. We have waited very long for it and we therefore want to make it as effective as it possibly can be. I welcome it and thank the Minister for the way in which she introduced it. We look forward to having it on the statute book.
My Lords, this Friday, 22 December, sees the seventh anniversary of the deaths of the Findlay family, from Larkhall in Lanarkshire. The family was made up of Andrew and Janette, and their two children, Stacey, who was then 13, and Daryl, who was 11. There will be many in Scotland who will see today’s debate as a timely tribute to them and to those in Scotland who have campaigned for a change in the law. I hope that noble Lords will forgive me if I address the issue before us on the basis of the law in Scotland and that some of the principles that I address are common also to England and Wales.
Following a full investigation, it was ascertained that the explosion was due to gas leaking from a corroding pipe into the family bungalow. As a result of that gas leak, an explosion occurred, which devastated the house and killed the occupants. Transco, which, with its predecessors, was responsible for the maintenance of the pipe, was indicted in the High Court of Justiciary on a common-law charge of culpable homicide and on contraventions of Sections 3 and 33 of the Health and Safety at Work etc. Act. Transco took a plea to the competency and relevancy of the charge of culpable homicide. At first, that plea was repelled but, on appeal, the plea to the relevancy of the charge of culpable homicide was upheld.
Three important things emerged in the judgment of the Appeal Court. The first was that, in common law in Scotland, it is competent to charge a corporation with culpable homicide. Secondly, however, in order to make a relevant charge, the prosecution must be able to identify a controlling mind with the necessary mens rea, as we call it in Scotland, or criminal intent, which one can attribute to the company. Thirdly, it is not permissible to aggregate the states of mind of various individuals who may, at one time or another, have been the controlling mind of the company—at least, in relation to the activities that gave rise to the death.
As it was conceded by representatives of the Crown that they could not point to a single individual with a controlling mind attributable to the company, the charge of culpable homicide was held to be not relevant. Transco was subsequently prosecuted on contraventions of Sections 3 and 33 of the Health and Safety at Work etc. Act and, after a lengthy trial, was found unanimously guilty. I say to the noble Earl, Lord Mar and Kellie, that I do not think that there is any difficulty in juries bringing a guilty verdict to corporations or corporate bodies where the evidence clearly points to that effect, which of course was true in the Transco case. As we heard from my noble friend Lord Brennan, the fine imposed was £15 million—a record which still stands in the United Kingdom for breaches of the Health and Safety at Work etc. Act. To put it into context, I understand that the fine in the Ladbroke Grove case was about £2.5 million, which, at that stage, was the highest ever levied in the United Kingdom.
In addition to the points made by my noble friend Lord Brennan, I mention that, in passing judgment, Lord Carloway commented that Transco had shown no remorse. It would be entirely wrong to speculate about what might have happened had Transco been prosecuted for culpable homicide, but it is legitimate to look at the judgment and the case and to ask what lessons can be learnt and whether there is any guidance for the legislature.
The first question to ask is whether, given the level of fine imposed against Transco, it is necessary to create a new offence of corporate homicide when the available financial penalties are the same. Lord Osborne made that point in the judgment in the Court of Appeal, observing that the financial penalties on conviction of an offence under the Health and Safety at Work etc. Act were unlimited. He said:
“It might be thought that the availability of such penalties on conviction would provide sufficient powers for a court to do justice in a case such as the present one. If, however, Parliament considers that a corporate body, in circumstances such as the present, should be subjected, not only to potentially unlimited financial penalties, but also to the opprobrium attaching to a conviction for culpable homicide, then it must legislate”.
In my submission, it is important to note that the Health and Safety at Work etc. Act does not distinguish between offences which cause death at work and those which do not. Although that may not be surprising in the context of the purpose of the health and safety at work legislation, many people consider that, where death has resulted from a gross breach of a duty of care, it should be specifically marked by the justice system with an appropriate conviction.
Cathy Jamieson, the Minister for Justice in Scotland, established an expert group to look at the development of the law in Scotland on this issue. It pointed to research that showed that companies are shameable. Indeed, they care about their reputation. Many have high ethical standards, or, at least, they claim to do so, and they are willing to spend a lot of money—sometimes disproportionately so in relation to the possible fine to which they might be subjected—in defending prosecutions. I suggest that a new offence will help with deterrence but I believe that, more importantly, it will give a sense of justice to those who have lost family and loved ones as a result of a gross breach of duty by a company.
I say, particularly to those who are anxious about the personal liability of directors and others, that I believe that, where we can bring home a guilty verdict against individuals in relation to their responsibility under the health and safety at work legislation or the offence of culpable homicide, it is up to prosecutors to prosecute them individually. Clearly, it will not be appropriate for prosecution under this legislation to take place in every case where death in the workplace occurs but, where the prosecutor is happy that he or she can satisfy the test set out in Clause 1 of the Bill, it should be appropriate to bring prosecutions under the new legislation. Where that test is not met but there are still breaches of the Health and Safety at Work etc. Act, prosecutions can still be brought under that legislation.
The second point is that the Transco case confirmed that a corporate body can be guilty of the common-law offence of culpable homicide, provided that a controlling mind whose actions are attributable to the company can be identified. The need to identify a controlling mind is also present in England, and, as has been recognised, the consequence is that it is virtually impossible to bring a successful prosecution against a large corporation, particularly if the allegation is based on a system failure. It is obvious that in a small or medium-sized company, where the number of employees is in the tens or hundreds, it may be easier to identify a controlling mind. I suggest that the present law discriminates against small companies and small businesses, which are, frankly, more at risk of prosecution for manslaughter or culpable homicide, and that that anomaly is sufficient to justify this legislation.
Following the Transco decision, there was a campaign in Scotland to change the law. I pay tribute to the work of Karen Gillon MSP, who led the campaign and was tireless in her efforts to remedy what she saw as an injustice with the backing of the STUC and, in particular, Grahame Smith, who I am pleased to see has now been appointed as the organisation’s new general-secretary.
However, the report of the expert group, to which I referred earlier, pointed to the difficulties in legislating in Scotland, given the reservations in the Scotland Act about the health and safety at work legislation and business organisations. That caused doubt about whether the Scottish Parliament could legislate in this area. I know that it caused disappointment to many who wanted a Scottish solution. As Lord Advocate, as I then was, my concern was to see a workable offence that would not be subject to challenge by an accused company on the grounds that the Scottish Parliament lacked the competence to legislate. Given that both health and safety and company legislation are UK-based, I believe that there is considerable merit in the offences north and south of the border, if not being the same, then at least being closely aligned. While some in Scotland might wish it were different, this place is indeed part of the legislature for Scotland.
There has, however, been substantial criticism of the offence as formulated for Scotland, which I shall address. As drafted, it is based on the concept of a gross breach of a duty of care. The common-law offence of culpable homicide in Scotland is based on gross, wicked or reckless conduct, and it has been suggested that the Scottish offence should retain recklessness as a foundation. I do not believe that there are difficulties for Scots law with the way in which the offence is formulated in the Bill. It is a new, standalone offence, using the familiar concept of a duty of care, albeit familiar in the context of civil liability, although I do not see that there is a difficulty with transferring that into criminal law.
The only problem that I foresee is that, where you might prosecute a company director, or someone from the company, on the common-law offence of culpable homicide alongside the company for the statutory offence of corporate homicide, the jury will have to approach deliberations from a different angle because the bases of the two offences are different. That is a difficulty, but it can be overcome by careful direction from the trial judge.
I raise two matters. The first was addressed in detail by my noble friend Lord Brennan and concerns the justification for requiring that guilt is brought home only if organisation of activities by senior management is a substantial element in the breach. I question the necessity to find a responsibility by senior management. I am not yet persuaded that it is the proper approach. It adds a burden on the prosecution to demonstrate that senior management were to blame, and to identify who they are. The question also arises of whether an organisation will be able to escape prosecution or conviction if the decision-making affecting the risks faced by employees in their work is sufficiently devolved to a level below senior management. If so, or even if it is a perception, might there not be a temptation for organisations to structure themselves to avoid that possibility? That would create a paradox: the legislation that we hope will further protect workers might be a spur to putting them more at risk, as the decisions leading to risk would be taken by junior members of staff.
Secondly, there is room for us to be more creative on penalties. Something like a corporate community service order is a suggestion that we might well look at. I would like to hear more about disqualification of directors, especially where the decision leading to a death can be traced back to them.
Many will say that this legislation is overdue. Equally, while the Bill is small, some of its concepts are difficult and important. It is right that we should give it careful consideration.
My Lords, I welcome the Government’s approach to this Bill and their willingness to accept good arguments for change and improvement, as the Minister has said several times. The key message that I am sure all noble Lords are looking for is that it must be fair, equitable, effective and equally applicable to all.
The Government have stated that the Bill’s aim is to improve safety. That is great, but it must not act as retribution. It is vital that the Government can demonstrate that the Bill is likely to achieve that. The emphasis must therefore be on effectiveness.
I shall address two issues: the remedies, and the organisations covered. First, on remedies, I am speaking in particular of some of the railway and oil and gas industry accidents. We have heard about the “Herald of Free Enterprise” but the point could apply to any incident. There must be a concern that a court considering one aspect of managing safety in a complex industry might not know the impact of decisions on the system as a whole. There is a worry that a criminal court would start to impose standards of safety or seek to regulate its management in a way which would be more usually done by the Health and Safety Executive. My noble friend Lord Brennan mentioned the Cullen inquiry, which lasted a long time and came up with recommendations, most but not all of which have been accepted.
If failure to comply with recommendations results in a mandatory court order, there could be unintended consequences of less rather than greater safety. That is not an argument for not doing it, but one for making sure that the right information is there before the court imposes whatever remedy it believes reasonable. We must be aware that in many industries there are set safety procedures, which have been generally accepted and approved, some of which have come as a result of accidents. We do not want to get back into having two different organisations setting rules on the same thing.
My second concern is the organisations that the legislation covers. Other noble Lords have referred to this point at length. It is important that all organisations, whatever their roles and responsibilities, are covered. The Bill seems to remove some Crown immunities but not all of them. Clause 2(1)(c)(iii) confines the duty of care to organisations operating on a commercial basis. I am not sure how one defines a commercial basis in this connection, but I can see the best brains in Whitehall thinking up how they can avoid being included. Does a hospital operate on a commercial basis? If it is in the private sector it does, but what if it is a trust? Is a trust in the private sector? We could have a long debate about that. An ordinary hospital is in the public sector. Other noble Lords have mentioned schools, the police, prisons and the military. Everybody must be treated equally.
Then there is a section about public bodies undertaking public functions. The impression I get is that a local authority will not have Crown immunity but Whitehall will because it is in charge. That is wrong, because the same policies come out at national, regional or local level, and if something is good for one it must be good for everyone. I agree with other noble Lords that partnerships should be included. The wonderful, large accountancy firms paying their partners salaries of millions of pounds, which one reads about, can probably afford a little responsibility for what they do.
Then there is the vexed question of whether Crown immunity applies to the Crown. After all, the Royal Household gets a lot of taxpayers’ money and is an employer, so it should be excluded from Crown immunity in this connection—that may be an odd way of putting it, but I think there is an argument there. The Duchy of Cornwall has lots of commercial enterprises selling environmentally friendly food and other products. There have been arguments about how much corporation or other tax it should pay, but it is clearly a commercial enterprise, and some firms in Cornwall feel that the competition is a bit unfair. It should surely not be able to claim Crown immunity under the Bill.
The Bill must be equally applicable to transport by road and by rail. We have spoken about rail a lot today, quite rightly so, but it is worth reminding ourselves that, for reasons that are probably historical, road safety is currently outwith the Health and Safety at Work etc. Act and is not the responsibility of the Health and Safety Executive. However, considering that 3,500 people are killed on the road each year and several hundred thousand are seriously injured, while for rail those events are in single figures, the Bill is an opportunity to level the playing field. I do not have a solution, and I do not know how we can get a level playing field on corporate manslaughter for companies moving people and freight by road and by rail if it is not possible or effective to prosecute companies for manslaughter under the Health and Safety at Work etc. Act. The noble and learned Lord, Lord Boyd, looked at the problem of amending that Act, and I do not know whether there is an answer there, but the matter needs to be looked at. I welcome the principles of the Bill, but it has to be workable and fair on the workers and the management, and I am sure that we will have useful discussions in Committee and at later stages.
My Lords, this is an important Bill for which many people have waited a long time, and the reference to the Law Commission’s 1996 report is very relevant. I agree with the noble Lords, Lord Rosser and Lord Brennan, in their approach to what should be done with the Bill. We must support it and get it on the statute book.
There are four matters that I wish to be dealt with in detail in Committee and on Report. The first is secondary criminal liability, which I mentioned in my intervention during the speech of the noble and learned Lord, Lord Lyell. That doctrine includes aiding and abetting in the commission of an offence and conspiracy in criminal and civil law. We must look again at secondary criminal liability, which applies right across our criminal law. Clause 16 excludes secondary criminal liability; we shall obviously have to discuss that matter further.
I agree very much with the noble Lord, Lord Brennan, that closer attention must be paid to penalties beyond the crude bludgeon of a fine, however large. Those penalties must be imaginatively drawn to promote a culture of safety at work, as a result of whose absence so many workers today suffer and, as we know from the dreadful incidents described, some are killed.
Secondly, we must look at the public sector carefully in order to achieve a balance between public functions and commercial or similar liabilities. I agree very much with those who have raised the question of deaths in custody, which must form a part of our considerations in Committee and on Report. There is a question in Clause 1 on how far the limiting phrases of “substantial” effect and “senior management” are a pressure to move the law back to what the Bill is supposed to be replacing. We must look very carefully at such phrases in Clause 1 to see what the Bill in practice would do in regard to the real corporate structures that surround us with such multinational and very complex management organisations.
Thirdly, it is unfortunate that the Bill is to be referred to a Grand Committee, which is used a great deal now by the Executive, through the usual channels. Its effect is to postpone decisions until Report or sometimes even Third Reading. We have seen it again and again, and it would be good if noble Lords and I reread the guidance in the Companion.
I warmly congratulate the Government on bringing forward this framework. It can be improved, but it must reach the statute book in its central design. I welcome the Bill and hope that it will become law very soon.
My Lords, I hope that I might be forgiven for also speaking extremely briefly in the gap. I make only one point. I very much apologise that, although I was here for the Minister’s opening speech, I have not been able to be here for the rest of the debate. I suspect that my point is novel. Since this new criminal offence is clearly based on the civil law of negligence, it might be worth considering that, as in the case of a civil action for negligence, there ought to be a limitation period for bringing a prosecution. I throw that out as something that the Government might consider before we get to Committee, as it is something that I would like to raise at that stage.
My Lords, I am grateful to have a brief opportunity to contribute to the debate. There have been a number of references to partial removal of Crown immunity. I want to direct attention particularly to Clause 4, which is the exemption for military activities. I particularly distinguish between the references made in the Explanatory Notes to the Armed Forces and those in the Bill to the Ministry of Defence. I suggest that there is a difference.
Liberty has already expressed concern that the Ministry of Defence might wish to remain immune to the risk of a criminal prosecution and the public scrutiny that would surround it. I think that others will share that anxiety. A number of speakers have expressed concern about the Ministry of Defence. I want particularly to take up the point made by the noble Lord Parekh earlier in the debate. He made specific reference to last night’s conclusions from the coroner in the inquest into the death of Sergeant Steven Roberts.
Sergeant Roberts came from my North Cornwall constituency, as it was when I was Member of Parliament for that area. He was the first British fatality in the Iraq invasion. Soon after his death on 24 March 2003, his family came to me seeking the facts of his death. Having put down a number of Questions and received very unsatisfactory replies, I raised these issues in another place on 19 December 2003, precisely three years ago. Forty-five months after his unnecessary death, we are at long last getting somewhere near the truth. We know that the death was preventable. That is certain. We know that there might well have been corporate negligence, but what we do not know is who was responsible for the decisions that led to his death and why. The family have found that obtaining information from the Ministry of Defence is like extracting teeth from a recalcitrant child.
The inquest, which reported last night, asked Mr Geoffrey Hoon to give evidence, but he failed to do so. He failed to do the coroner or Sergeant Roberts’s family the courtesy of appearing. Ministers’ reluctance to give evidence did nothing to stop the coroner laying bare the Government’s betrayal of our troops. Mr Andrew Walker, the coroner who heard that tragic case, said:
“To send soldiers into a combat zone without the appropriate basic equipment is in my view unforgivable and inexcusable and represents a breach of trust that the soldiers have in those that govern them”.
Defence Ministers do not just govern our troops in the same way that the Government oversee the various structures and strictures of our everyday lives; they put young men and women at risk of their lives in battle. Yet if they do so without proper preparation and planning, and neglect to provide basic equipment, they can slip away, move jobs, and exculpate themselves with what Mr Walker calls in his summary “justification and excuse”.
The Bill goes some way to denying that opportunity to senior management of companies and corporations. If they neglect those in their employ, they will face the courts. In Committee, we should consider the role of Ministers in a similar context. The inference of the evidence submitted to that inquest is that the Secretary of State deliberately delayed ordering essential protective equipment which would have saved Sergeant Roberts’s life in order to pretend that this country was not preparing to join the USA in an invasion of Iraq, on which President Bush was already hell-bent. If that is not an appropriate case for examination in similar circumstances to those that we are discussing under the Bill relating to corporate negligence, I do not know what is.
My Lords, first, I declare my involvement over the years in the boardrooms of a number of public and private sector companies and as a Minister at the Ministry of Defence, to which I shall refer a little later. As my noble friend Lord Cotter made clear in his opening speech, we support the broad thrust and aims of the Bill and believe that the new offence of corporate manslaughter marks a significant step forward. However, it has been a long time coming. I think that it was promised or hinted at in Labour’s 1997 manifesto.
In her introduction, the Minister talked about the present law as being too narrow and used what I thought was a rather elegant phrase about the Bill moving the area of negligence from “who” to “how”. Several noble Lords, especially the noble Lord, Lord James, my friend and former adversary, the noble Lord, Lord Hoyle, the noble Lords, Lord Sawyer and Lord Rosser, and the noble Baroness, Lady Turner, have been concerned about the “who” aspect. I am sure that we will debate that in detail in Committee.
I suggest that we should make it clear that, in a mature, developed and, I hope, fair society such as ours in the 21st century, an organisation, whether commercial or public, has a prime responsibility to its employees and others in its custody or care to protect them as far as is reasonably possible, and that, if it fails to do so in a grossly negligent way, a charge of corporate manslaughter will follow. As Jack Straw said about the Bill:
“The ultimate test of its success will not be the number of convictions that follow it, but whether it changes the behaviour of managers of businesses, resulting in far fewer deaths arising from the sort of major accidents that we have seen in the past”.—[Official Report, Commons, 20/7/06; col. 465.]
That was the point made by the noble Lord, Lord James. I hope that he will understand if I do not attempt to follow him on his international corporate journey—I do not have time to do that.
As the noble Lord, Lord Brennan, said in his very effective contribution, when the Bill is enacted, we expect a wholly different corporate culture in the area of health and safety. I wholeheartedly agree with that.
Although we support the Bill’s main aims, we have serious reservations about many aspects of it. It is rather as if the Government giveth with one hand and individual departments taketh away with the other, particularly in the area of Crown immunity. It is very sad that the Government, who surely should be taking a lead in the departments and activities that they control and setting an example, are actively seeking some very unsatisfactory immunities.
We are not happy with the immunities granted to the Ministry of Defence or to the police. Taking the form of the MoD, we accept that it is reasonable for there to be immunities in wartime and for Special Forces’ activities, and perhaps for anti-terrorism activities, but surely activities such as training recruits—obviously Deepcut comes to mind—should be covered by the Bill. I go further: in military operations such as Afghanistan and Iraq, should the MoD not be held to account for failures to provide adequate body armour for those whose lives are at risk? I support wholeheartedly the comments of my noble friend Lord Tyler.
I had the great privilege of being a junior Defence Minister in the 1980s, and I remember trying manfully to get proper protective clothing for MoD police guarding the cruise missile sites in freezing weather. At that time, I calculated that we were spending £1 million an hour, every hour, on equipment for our forces. The MoD has always had a huge budget—it is really just a question of priorities and programmes—but, sadly, it has form in this area. Similarly, an individual taken into police custody is wholly dependent on the approach and activities of the force while they are held in captivity. It is a period of complete helplessness for the individual.
The Independent Police Complaints Commission annual report of 2005-06, which has just come to hand, reports 28 deaths in police custody in 2005-06—a welcome reduction on the 36 deaths in the previous year. Surely if there is considered to have been gross police negligence in certain cases, a charge under the Bill would have been quite appropriate. Many Members with vast experience—particularly the noble Baroness, Lady Stern, the noble Baroness, Lady D’Souza, with her experience of monitoring Wormwood Scrubs, the noble Lord, Lord Parekh, and particularly the noble Lord, Lord Ramsbotham, with his very distinguished background in this area—have spoken about this aspect.
The proposed immunity is challenged by a whole range of organisations from Liberty to the Association of Personal Injury Lawyers. The Government will find it very difficult to justify and defend this custodial immunity as the Bill progresses. Indeed, I suggest that a vote against this immunity proposal by those participating in the debate today would have been near unanimous.
To return to the main thrust of the Bill, the reality is that the UK has failed to provide universal legal protection for the right to life. The offence of corporate manslaughter developed by the courts has been ineffective, and the public have become disillusioned by and outraged at the lack of successful prosecutions and the paucity of fines. The noble Lord, Lord Clinton-Davis, and my noble friend Lord Cotter referred to this in their contributions. Of the 34 work-related manslaughter cases brought since 1992, only seven prosecutions have succeeded, all against very small companies or traders.
On the fines themselves, the steelmaker Corus was reported only last weekend as having been fined only £1.3 million under health and safety legislation over the deaths of two employees. With Corus being the subject of a takeover bid valued at around £4.8 billion, a fine at £1.3 million is unlikely to have unduly exercised management or shareholders. Thus, the concept of unlimited fines, as set out in the Bill, is welcome.
My noble friend Lord Mar and Kellie talked about penalties other than cash, which no doubt will be examined in Committee. He referred also to the case of the eight year-old boy who was tragically killed by a falling tree at Dunham Park, which is fairly close to my home in the north. Clearly, we need to protect trees, but I suggest that young lives are even more important and that safety should be paramount. I must say that I am delighted that the noble Earl avoided his personal falling tree even though he is a Whip. Clearly, in Committee, we need and will have a full debate, as was requested specifically by the noble Lord, Lord Henley. In conclusion, we need this Bill, but we need it improved.
My Lords, I declare my interest as president of the All-Party Group on Occupational Safety and Health, partner in the national commercial firm of solicitors, Beachcroft LLP, and the other entries in the register. We have heard 23 speeches of high quality; the standard, I believe, having been set by the Minister in her most comprehensive outline of the Bill. We also have been treated to a new team on the Front Bench of the Liberal Democrats, with the noble Lords, Lord Cotter and Lord Lee of Trafford, whom we welcome to this debate and look forward to working with in Committee.
Before I turn to the substance of the Bill, perhaps I may echo the words of my noble friend Lord Henley in drawing attention to its most inadequate treatment at Report stage in the other place. More than 20 amendments to it were passed without any debate. If any Bill demonstrates the value of this Chamber, it is this Bill—because we know the problems caused by timetable Motions. This Bill demonstrates all the pitfalls of such Motions. That is why we will probably have a lengthy Committee stage as we seek to do the work of the other place for it. There should have been proper debate about some very significant amendments but there was not. Therefore, as a result, ours is an increased responsibility.
Various noble Lords have made reference to some of the cases that have added incrementally to the aggravated sense of injustice. For many years, a view has grown up that bodies corporate, as well as individuals, should be held to account where deaths occur as a result of their actions. The shadow of the “Herald of Free Enterprise” has been over this debate. The speech made by the noble Lord, Lord Clinton-Davis, gave that instance all its tragic connotations. Because of his many years as a shipping Minister, that tragedy probably meant much more to him than to many others. He gave us a reminder of the horrific nature of what happened.
We now wait to hear the noble and learned Lord the Advocate-General for Scotland—I am very grateful to the noble Earl, Lord Mar and Kellie, for reminding us of the correct title—respond to the many points that have been made. But there is a broad consensus behind the Bill in this House and elsewhere. However, I should put on record the fact that it was not my party’s view that this type of Bill necessarily represents the best way of addressing the particular problems that many have outlined.
We are speaking, in essence, of health and safety matters. My party believes that the existing corpus of law in that area would have given ample opportunities for the kind of reform we all seek. We could have built this new edifice upon the rather stronger foundations of health and safety legislation which, of course, goes back some considerable time. The relevant Bill was originally introduced by my party back in the early 1970s but brought to Royal Assent by the subsequent Labour Government. However, we are where we are. As the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Wedderburn, reminded us, there is a long history here.
I understand that a Bill of this kind was a part of the legendary—one is sometimes tempted to say “mythical” in view of the fact that it has never been published—Warwick agreement. It would be enormously helpful if the noble and learned Lord could place a copy of this agreement in the Library because, as I understand it, it has never been published and yet it is constantly referred to. But we must proceed on the basis that it said something that originated in this Bill. For that, I suppose, I am a supporter of that aspect of the Warwick agreement, if only I could ever see it.
Perhaps the noble and learned Lord could also assist us by telling us where the coroners Bill is. That is an important aspect, as the noble Lord, Lord Ramsbotham, pointed out, but no one knows where it is. If the noble and learned Lord could indicate what has happened to it, that would be very helpful. I also look forward to hearing the noble and learned Lord’s response to the noble Earl, Lord Mar and Kellie, on whether this is an area of dodgy and rickety constitutional significance.
Having accepted the broad principle of the Bill, I should like to raise a number of practical issues, issues of detail, and also several broader issues of principle that give some cause for concern. Foremost among those, as pointed out by my noble and learned friend Lord Lyell of Markyate and by the noble Lord, Lord Lee of Trafford, is the highly uneven application of the Bill as currently drafted. It would apply across a wide, almost universal front within the private sector but across a far narrower range of activities in the public sector. As my noble friend Lord Henley has already pointed out, the organs of the state will be responsible, and fully accountable in terms of possible prosecutions under this legislation, only to their employees and their tenants but not to those who use their services. We look forward to hearing the justification for that, but we will wish to explore the boundary very closely in Committee. In contrast, the private sector will have all the additional responsibilities set out in Clause 2(1)(c)(i) to (iv).
I know that fining bodies, in some senses, represents little more than a vastly expensive way of robbing Peter to pay Paul, but the Bill in its present form seems iniquitous. As many speakers have pointed out, the Bill must be about prevention as well as reparation. Indeed, many noble Lords have said that success will be achieved if we minimise the number of fatalities that result from accidents in the workplace.
Many other points have been touched on during the debate. Colleagues in all parties in another place, and here, are understandably exercised about the exclusion of deaths in custody from the ambit of the Bill. It is a huge responsibility to imprison a fellow citizen, and we must ensure that all the possible reasonable systems and precautions are in place to prevent unnecessary and avoidable deaths in custody.
I confess that I have not thus far been even remotely persuaded by arguments against adding these deaths to the Bill. In fact, I found very persuasive the arguments of the noble Baroness, Lady D’Souza—drawing on her experience on the independent monitoring board for Wormwood Scrubs—the noble Lord, Lord Parekh, the noble Baroness, Lady Stern, and the noble Lords, Lord Ramsbotham, Lord Judd and Lord Lee. The noble and learned Lord will have to come up with some convincing arguments which we have not yet heard from any noble Lord if he wishes to persuade us to omit deaths in custody from the ambit of the Bill.
Within the private sector, too, we must ensure that the legislation applies right across the necessary waterfront. There are some blatant loopholes. As a member of a partnership, I fail to see why they and other unincorporated bodies should be outside the scope of the legislation. The noble Baroness admitted that everyone would like to explore the boundary a little further, and I welcome that.
I was grateful to the noble and learned Lord, Lord Lloyd of Berwick, for raising a very important point about limitation, which we must explore in Committee. The Ministry of Defence has also come in for some close attention. We are all very grateful to the noble Lord, Lord Tyler, for reminding us in greater detail, as did other noble Lords, including the noble Lord, Lord Parekh, of the sad case of Steven Roberts. We must learn the lessons that need to be learnt from that terrible case.
I think that Ministers have been right to hold out against attempts in another place to change the thrust of this major reform by moving away from its primary purpose, the creation of a new corporate offence. To add individual sanctions to the Bill would dilute it and confuse people as to the intentions of Parliament. But I agree with the noble Lord, Lord Sawyer, with his background in UNISON, and the noble Lord, Lord Hoyle, with his background in Amicus and related trade unions, that individuals guilty of gross misconduct must not be allowed to feel that they will henceforth have nothing to fear but an hour or two in the dock, after which their organisation may have its knuckles rapped but they will get away scot free.
Measures for disqualification were much discussed in another place but my gut feeling is that this is probably best done through existing laws. The crucial point here is that we must be clear not only in our own mind but in the letter of our legislating that we do not intend through this Bill to reduce the incentives on individuals to keep their house in order. As I understand it, all existing sanctions will remain in place and nothing in the Bill should be construed as precluding simultaneous or subsequent action under the 1974 Act or, indeed, any other Act already on the statute book. We must, however, take time to consider secondary criminal liability and I look forward to debating this in Committee with the noble Lord, Lord Wedderburn.
Action against a firm for corporate manslaughter should be entirely consistent, where applicable, with action against individuals under health and safety law, but I am not sure that the Bill makes that sufficiently clear yet. If we are indeed considering twin-track prosecutions of this kind, as set out by the noble Lord, Lord Whitty, and others, against firms for corporate manslaughter and against individuals for gross breaches of health and safety legislation, should we not put that explicitly in the Bill? It would be a matter for regret if, in passing this legislation, we brought about an avoidable and unintended fall in the number of prosecutions under the 1974 Act.
Other points to which we shall return at later stages include the possibility of requiring firms to have a named director who is responsible for health and safety, an explicit requirement that all contractors and sub-contractors observe the same standards of health and safety, and naming and shaming. I agree with the noble Baroness, Lady Turner of Camden, that we must make sure that we have effective sanctions. I was very attracted by points made in another place about recording instances of prosecution under this legislation on the companies register. Some colleagues have even mooted the possibility of allowing the courts to demand that companies which are guilty of corporate manslaughter advertise the fact that they have been so indicted through some public medium at their own expense. I suppose that this is the modern-day equivalent of the stocks and public humiliation, and it has its attractions. I look forward to a discussion of that possibility and the idea of corporate probation.
The noble Lord, Lord Rosser, put forward various options for the sanctions necessary to deal with gross negligence resulting in death. We all agree with him that the object of the Bill is to improve safety and prevent accidents. We benefited from the business experience of the noble Lord, Lord Cotter, who stressed the need for simple common sense. I liked his phrase “act now or else”, which communicates a clear message. He reminded us—perhaps the Minister will refer to this—that Mr Sutcliffe had referred in another place to the recent report of Professor Macrory’s review of regulatory enforcement. Mr Sutcliffe said that the Government would have to consider the detail of the suggestions for new criminal sanctions which are put forward in that report. We look forward to hearing the Government’s responses on that and will no doubt hear more in Committee.
We benefited also from hearing the rather chilling examples of my noble friend Lord James. He could have shared 12 of them with us, but he specified four. We have to go through them to learn what lessons we can. His point that the legislation has to be simple and clear so that everyone can understand their responsibilities was so important. We benefited from the legal experience of the noble Lord, Lord Brennan, who also stressed the need for a clear and effective definition, and effective remedial orders.
It has been a very interesting debate, which many of us now want just to study. So many points were raised by noble Lords that we have to make sure that we debate them thoroughly and properly in Committee. I hope that the Committee stage will be constructive and free from partisan rancour. If I am wrong, noble Lords should attribute that to a surfeit of seasonal good will on my part. What one can say with confidence is that this Bill will be passionately debated and sincere attempts will be made to amend and improve it substantially.
We want a different corporate culture, both here and in Scotland. We were fascinated by the discussions between the noble and learned Lord, Lord Boyd of Duncansby, and the noble Earl, Lord Mar and Kellie. No doubt we will hear more of that in Committee.
I have my doubts, although my hands are tied, about whether this is the sort of Bill that should go to a Grand Committee—the noble Lord, Lord Wedderburn, made that point—but others have made those decisions. The Committee stage will no doubt start on Thursday 11 January, when we return, if the House approves the Motion.
There is an old saying that hard cases make bad law, and there have been some very hard cases of firms falling grossly short of their obligations to employees and customers, resulting in appalling loss of life that could and should have been easily avoided. We on these Benches welcome any attempt to improve the system for preventing such tragedies, but the Bill as it stands at the moment is an imperfect vehicle. We could start out trying to save lives and end up with just another stealth tax. But we are not going to do that. I look forward to working with Ministers to ensure that, for once, hard cases result in a law that is workable, just and, as the noble Lord, Lord Berkeley, put it, effective, and one that leads to prevention as well as cure.
My Lords, this has been a most interesting and high-quality debate and I am most grateful to all noble Lords who have participated for their wide-ranging contributions. I am also very grateful to noble Lords for their constructive tone; I trust that it is not just because of the festive season. I am pleased to say that this Bill was discussed in a very similar tone in another place throughout its time there, and I am sure that our discussions will continue in the same spirit as we proceed to Committee.
I add my welcome to the noble Lords, Lord Cotter and Lord Lee, to the Front Benches. I also thank the noble Earl, Lord Mar and Kellie, for identifying me to the House. I am much obliged.
Discussions in another place and here today reveal that while there may be differences of opinion in how we ensure that the law is effective in properly labelling and punishing organisations whose gross carelessness leads to death, few doubt that the current law is unsatisfactory. Many points have been raised today and I look forward to Committee, when they can be explored in greater detail. Now I shall briefly offer further thoughts for consideration on some of the matters raised.
Very few of your Lordships have raised even tentative questions about whether the Bill will achieve its objectives. That is, I assume, because most noble Lords consider that the option to do nothing would leave in place a law that has been shown not to work, giving a great sense of injustice to the families of those who have died in terrible and avoidable circumstances. For the public to have confidence in the criminal justice system, the law must be effective. When an organisation has been grossly negligent in managing health and safety, with fatal results, manslaughter is the appropriate label. A conviction for a breach of health and safety is not enough; it does not do justice to the circumstances. I submit that juries will recognise when they consider these issues that, when there is an issue of importance and significance, juries will be able to convict in these cases. The concern that the noble Earl, Lord Mar and Kellie, pointed to may be unfounded.
The noble and learned Lord, Lord Lyell, asked about the test for manslaughter and the question of risk. The test for gross negligence manslaughter is in essence an objective one requiring a gross breach of duty of care. Evidence of the defendant’s state of mind may well be useful in the case but is not part of the test itself.
The noble Lord, Lord Henley, raised a point about duties of care under Clause 2(1)(c), to which the noble Lord, Lord Berkeley, also referred. Noble Lords asked whether the provision would apply to private organisations alone. I do not wish to get too much into the interpretation of provisions, but Clause 2(1)(c) makes no distinction in itself between public and private organisations and applies to both.
While the offence is rooted in health and safety standards and does not require organisations to do more than comply with existing standards, we would hope that the creation of the new offence would send a message to organisations that pay no regard to health and safety standards, prompting them to think again. While corporation has no soul to be damned nor body to be kicked, as has once been said, corporations will at least be encouraged by the Bill to have a conscience. The noble Lord, Lord James, asks how that will save lives. I suggest that that is one way it may so operate. I give a similar answer to the noble Lord, Lord Lee, on his similar point.
It is clear that if an organisation’s health and safety is managed well at the senior level, the offence will not apply. We believe this also supports the Government’s view that health and safety management should be led from the top. My noble friends Lord Sawyer, Lord Hoyle, Lord Rosser and Lord Whitty mentioned that point, and I share that observation with them. The eloquent welcome given to the Bill by my noble friend Lady Turner and the noble Lord, Lord Wedderburn, is extremely welcome. The notion that this Bill is a long time coming is correct.
I shall talk generally for a moment about the application of the new offence to the Crown. We have taken the bold step of applying this offence to the Crown because we believe it should not be immune from prosecution for gross failings in the way health and safety has been managed. However, I urge your Lordships to focus on the types of incident this offence is aimed at, and resist seeing the Bill as a new way of challenging decisions of government and policy, or of providing new routes for holding public bodies to account for the discharge of certain difficult public functions. The civil courts have already recognised the difficulties inherent in those areas, and have been slow to impose duties of care in a number of operational areas. If one is looking for an area for challenge on the question of funding, I suggest that the importance of the Bill sets that to one side.
The Bill builds on a bright line around a number of activities that, one considers, should not give rise to liability. I recognise that some of your Lordships believe the new offence should go further than it does, but I return to the point that the sort of cases that are not covered will involve the discharge of public functions in often difficult circumstances, frequently involving the question of ensuring the safety of others, and will frequently involve questions of balancing competing priorities and public resources. Those are a far cry from the circumstances that were the impetus for reform, which were cases involving workplace and employee safety, or circumstances in which organisations had chosen to offer a service or engage in an activity, and then had failed to take adequate precautions when carrying it out.
The lifting of Crown immunity is a very significant step. It exposes government departments and other Crown bodies to prosecution for the first time, and brings their activities within the scope of the criminal law. This is plainly an area where one should move cautiously, even, I suggest, in cases of such difficulty as that of the most unfortunate death of Sergeant Roberts, as spoken about by my noble friend Lord Parekh and the noble Lords, Lord Tyler and Lord Hunt. The Bill represents a significant advance by bringing the Crown as employer and occupier within the offence when it is providing services or otherwise in a similar position to private sector organisations. It excludes the discharge of certain public functions, whether by government or wider public authorities, or indeed the private sector when in the same position. We should be cautious about extending this sort of offence to those other activities.
A number of points have been made with regard to exemptions and Crown immunity. It has been contended that the exemptions are too wide. As I have said, the removal of Crown immunity is an unprecedented step. My noble friends Lord Parekh and Lord Berkeley, the noble Lords, Lord Cotter and Lord Lee, the noble Baronesses, Lady D’Souza and Lady Stern, and the noble and learned Lord, Lord Lyell, have all considered in their interventions the importance of this area, while not necessarily agreeing with the approach adopted in the Bill.
The Bill comprehensively covers duties to provide safe systems for employees in the workplace for the Crown and others. It does not exempt Crown bodies from these duties. The Bill is not about judicial scrutiny of the way core government or public functions are carried out. The offence will not apply to: public policy decisions, for example the allocation of limited public resources; decisions about regulation and standards; or difficult public responsibilities such as law enforcement, detention, child protection and emergency services, as there is already a strong framework of accountability in these areas. Ministers are inevitably accountable to Parliament. There are public inquiries, coroners’ inquests and independent investigations by the Prisons and Probation Ombudsman, the Independent Police Complaints Commission and other bodies.
The noble Lord, Lord Cotter, asked whether deaths caused through emergency services staff driving to emergencies would be covered. That raises the difficult point of determining where the line should be drawn in deciding what public responsibilities should be covered by the offence. The cases that we are talking about will be, by their nature, tragic. We need to be cautious. Public bodies such as the emergency services will seek to address those in peril. If they drive more slowly, they risk not arriving quickly enough at, for example, the scene of a fire. These are the difficult questions that arise in this area.
The noble Lords, Lord Henley and Lord Hunt, and the noble Baroness, Lady Stern, addressed deaths in custody. This matter was debated at length in another place. Division on this showed strong support for the government position. I submit that there is a reasonable expectation that the Lords will swim to a degree with the tide of opinion. Tackling deaths in custody is a key priority for government. Initiatives for making custody safer include: suicide prevention co-ordinators in all prisons; development of new safer prison design, including “safer cells”; and investment of £26 million, allowing physical improvements to be made at six pilot sites.
Removal of Crown immunity means that the Bill comprehensively covers duties to provide safe systems of work for employees and in the workplace for the Crown and others. Strong mechanisms for accountability exist. All deaths in custody are subject to an independent investigation; for example, by the Prisons and Probation Ombudsman and the Independent Police Complaints Commission. Indeed, all deaths in custody are also subject to a coroner’s inquest, in public, with a jury. These wider inquiries produce recommendations which drive improvements in the custodial setting. That is precisely the area that the noble Lord, Lord Ramsbotham, referred to when he discussed sloppiness in custody. Existing mechanisms can identify such sloppiness, were it to arise.
One accepts that there is a view from others who share our priority for improving safety in custody that we should add to this accountability through corporate manslaughter. We do not think that this will improve safety or that the courts are the right place to examine issues which go to the heart of government decision-making about matters such as funding of prisons and protecting the public. There is always a difficult confluence between operational matters and policy. It is important that these be kept separate, although it is not always easy so to do.
The Bill is about the management of health and safety at work, not about scrutiny of the way core government or public functions are carried out. That, I submit, is Parliament’s role.
My Lords, I am grateful to my noble and learned friend for giving way. I was interested to hear his statement about lack of public funds being an excuse for not doing something. I suggest that lack of funds could not be used as an excuse for a private sector company not to do something. Would this measure apply to local authorities as well if they said that they did not have enough money to do something? Would they not be charged with corporate manslaughter if an incident arose in those circumstances? It seems an odd reason to put forward for keeping Crown immunity.
My Lords, regarding the position of the Crown, the difference is that one is dealing with decisions that go far wider than those of local authorities. It will inevitably have to deal with the overall national Budget, national funding issues and the question of priorities that fall to be considered. With respect, I contend that that is not a proper matter for the courts to become deeply involved in.
The noble Lords, Lord Henley and Lord Lee, raised the question of the police. The offence has been extended to police forces, which are covered as employers and occupiers, except where they are dealing with very serious threats, such as terrorism and civil unrest. How the offence should apply to operational activities more broadly was discussed for some time in another place, with some recognition that the matter was not straightforward. The police do not owe a duty of care for many of their operational activities and, therefore, it is important that this area is treated with considerable sensitivity.
A number of noble Lords, including the noble Lords, Lord Cotter and Lord Henley, the noble Earl, Lord Mar and Kellie, and the noble Lord, Lord Hunt, referred to unincorporated bodies. The current law does not extend to unincorporated bodies. Evidence from the Health and Safety Executive indicates that only 2 per cent of HSE prosecutions are against unincorporated bodies. It is true that these typically involve smaller businesses such as building firms and sole traders, where individual prosecutions are likely to be possible. Very few prosecutions or other enforcement actions are brought against the office-based industries, such as estate agents, law firms or accountancy partnerships, to which reference was made. However, this area has been debated extensively and we are looking at whether there is a sensible way to extend the offence in some way.
The noble Lord, Lord Henley, asked to see amendments immediately in relation to unincorporated bodies and sanctions. We are continuing to consider whether it would be sensible to extend the Bill to cover unincorporated bodies and alternative sanctions, and we will continue to do so. If we consider that amendments would be sensible, we will bring them forward, of course.
Provisions relating to incorporated bodies mentioned in the schedule cover a number of government departments. Incorporated public bodies that are not listed are covered by the offence automatically, including local authorities, National Health Service bodies and other public bodies, such as English Heritage and so on. The noble Earl, Lord Mar and Kellie, raised the question of Scottish partnerships. They will be considered in due course when we look at what may be dealt with in this area.
Turning to the question of jurisdiction, raised by the noble Lord, Lord James, the Bill already extends beyond the land of the UK in a number of important respects. It applies to deaths within territorial sea limits and would therefore apply to the circumstances of the Lyme Bay tragedy, when a number of canoeists were killed, which led to the first ever successful corporate manslaughter prosecution. It will apply also to deaths resulting from tragic accidents involving British ships, such as the Zeebrugge tragedy, and will apply to deaths on oil rigs, bearing in mind the Piper Alpha disaster. The noble Lord, Lord Clinton-Davis, asked about foreign-flagged vessels. Scottish and English law does not apply to vessels outside British waters, and the new offence follows the approach that the law has adopted thus far. These are all circumstances in which British law already applies. Perhaps the point to bear in mind is that once one goes beyond British jurisdiction, difficulties will inevitably arise. The police are not in control of the investigation and have no formal powers to gather evidence, which will be collected by other countries’ police forces and possibly subject to other rules of evidence.
The question of director disqualification was raised by the noble Lords, Lord Cotter, Lord Hoyle and Lord Hunt. Directors can currently be disqualified if they are convicted of an offence. Perhaps I should say nothing further about that at this point. The area is already substantially covered.
The noble and learned Lord, Lord Boyd, asked whether the Bill might lead to delegation of health and safety responsibility below senior level. It is clear that only organisations in which health and safety is managed properly at the senior level can be sure of avoiding liability for the offence. We do not think that the offence acts as an incentive to delegate responsibilities inappropriately.
A new offence of corporate manslaughter has been in the offing for many years. A number of high-profile cases have illustrated demonstrable flaws in current law. I am very pleased that we have at last brought this Bill before your Lordships’ House. It is a complicated area and has been difficult to get right. I look forward to having the expertise of noble Lords in ensuring that it receives proper scrutiny. I believe, having listened to this debate, that most noble Lords broadly support the Bill, for which I am grateful. We will have every opportunity to discuss the full details in Committee in the new year. It is no doubt a task for the Committee to consider the improvements to which the noble Lords, Lord Clinton-Davis, Lord Hoyle, Lord Rosser and Lord Wedderburn, referred.
I have been asked by my noble friend Lady Scotland to thank the noble Lord, Lord Ramsbotham, for his kind words about her. They are, if I may respectfully say so, highly accurate.
On Question, Bill read a second time, and committed to a Grand Committee.