Thursday, 18 January 2007.
The Committee met at two o’clock.
[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
Corporate Manslaughter and Corporate Homicide Bill
Welcome to the fourth day of the Bill. I am sorry that we have been moved to this Room, but health and safety officials predict that things might fall on top of us in the Moses Room if we did not wear tin helmets.
Clause 9 [Power to order breach etc to be remedied]:
80: Clause 9 , page 8, line 10, leave out “(“the relevant breach”)”
The noble Lord said: The amendments in this group are probing in nature. I want to give the Government an opportunity to explain the amendments that they moved in the other place, because there was no such opportunity on Report there.
Both Amendments Nos. 80 and 81 would delete “the relevant breach”. Amendment No. 81 would insert “that”, the word that appeared previously. Amendment No. 82 addresses paragraph (c) of subsection (1) of the clause. I was interested to note the inclusion of that small paragraph, which puts a duty on the courts to consider how,
“any deficiency, as regards health and safety matters”
may be remedied. I assume that that ought to be read in conjunction with proposed new subsection (3), contained in Amendment No. 83.
I am grateful that the Government have amended the clause in this way. I note that these amendments were tabled in response to my honourable friend Dominic Grieve, who raised a series of points in the other place.
Remedial orders are all very well and good but there is no structure within the Bill to ensure that they are carried out. What is more, previously there was no direct link to regulators, who have far more experience than the courts in the precise health and safety requirements that a remedy order would require.
The Minister in another place said that he was,
“confident that, as well as being involved in the drawing up of remedial orders, regulators will be fully engaged in monitoring compliance with such orders, without the Bill making specific provision in that respect”.—[Official Report, Commons Standing Committee B, 26/10/06; col. 178.]
I am glad that the Government agreed to reverse that position. It is important that there is a strong link between regulators and the courts during the entire process of a corporate manslaughter prosecution. They are the bodies which will be able to contribute most to the dissection of any corporation's health and safety practices. I beg to move.
I am grateful to the noble Lord, Lord Hunt, for his words and reflections on the passage of the Bill in another place. I am sure that his recollection is absolutely right. We were very happy to bring forward the amendments to which the noble Lord refers, in order to add clarity and structure. Our position on the amendments is very clear and understood. We are grateful to the noble Lord for tabling his probing amendments so that we can explain more fully our thinking.
It has been correctly pointed out that the relevant health and safety regulator is likely to have taken action long before a trial to address any dangerous practices in the organisation. The regulators have very considerable powers to do that. But the advantage of having remedial orders in the Bill is that the court can use them to deal with any deficiencies that come to light during the trial, or which the regulators feel are not sufficiently being addressed.
Remedial orders are not just about taking action to remedy the immediate and localised causes of a fatality, and the purpose of the provision that the noble Lord’s amendment seeks to remove is to make clear how much they can address. Remedial orders give the court the power to order the organisation to address the management failure that was the basis of the conviction and also to put right any consequences of that management failure that appear to the court to have been a cause of death. But the effect of the provision in question is that the court could go one step further and require the organisation to remedy any deficiencies in its policies, systems and processes for the management of health and safety which created the environment in which the fatal management failure could occur.
If a company was convicted on the grounds of inadequate staff training and it became clear at the trial that the lack of training in the company was indicative of a general disregard within the company for health and safety, by using this provision the court could order the organisation to develop and implement new health and safety policies. We think that the provision in question completes the picture of remedial action. The courts will be able to take a global view of the circumstances that led to a death and to order remedy at any level, from practices on the ground right up to the establishment of written safety policies throughout the company which seem necessary to prevent further death or injury. We want these powers to underline that the offence is not just about convictions and justice, but as we have discussed on a number of occasions, about changing corporate behaviour too.
Amendment No. 87 would remove the requirement for the prosecution to consult the relevant regulator before applying for a remedial order. We introduced this requirement in another place in response to concerns expressed by Dominic Grieve among others that prosecutors might not be in the best position to decide the appropriateness of a remedial order, and that expert guidance would be needed from the relevant regulator. It was always our expectation that the prosecution would liaise with the relevant enforcing authority before applying for a remedial order, but we accepted the arguments for an amendment to ensure that that would always happen. Clause 9 therefore stipulates now that the prosecution must consult the relevant regulatory authority before applying for a remedial order.
I hope that the noble Lord will feel that these comments flesh out some parts of the consideration that were not there before, and I am sure that he will be happy to know the exact basis on which we have made these changes.
83: Clause 9, page 8, line 15, at end insert—
“( ) An order under subsection (1) shall—
(a) identify a person or persons within the organisation to be responsible for ensuring that steps are taken; and (b) require that there is a report back to the court with details of the steps taken.”
The noble Baroness said: I shall also speak to Amendment No. 88. I will leave Amendment No. 89 to my noble friend Lord Wedderburn. We desire to strengthen Clause 9. The court should require named persons to take the steps required to improve the systematic failings that led to the offence. A person who fails to take the steps that the court requires to prevent more death and injury should clearly understand that this would be in contempt of court; that is the requirement of Amendment No. 88. This is a part of our attempts through amendments to ensure that the failings that led to offences will not be repeated. There should be a report back to the court on the steps being taken.
I hope that the Government will be prepared to accept these reasonable proposals, which we think are essential if the health and safety culture of organisations is to be significantly improved. This kind of step is likely to have public support as well, because whenever there is a disaster resulting in a death, it will be expected that steps are clearly seen to be taken to try to prevent a recurrence. Essentially, that is what we are trying to do in these amendments.
I expect that, like me, many noble Lords will have received documents from the organisation said to be representing the families of people who have died as a result of accidents at work. It serves to remind us that far too many accidents take place nowadays that result in injury and even death. The paper is headed:
“Corporate killers do the crime. Grieving families do the time”.
Of course we should not forget that grieving families suffer the problems behind this legislation. I beg to move.
I am happy to have got here to speak to Amendment No. 89, and somewhat lucky to have done so. I briefly commend Amendment No. 89 to the Government. I remind the Committee that we are at a point where an order has been made to the organisation to take certain steps. My amendment says that where the organisation, company or whatever it is has failed in that respect, and the substantial cause of that has been the,
“act or omission of a member of senior management”,
he is guilty of an offence. With respect, I prefer that to the suggestion that there is any question of contempt of court, although no doubt those who are expert in remedies will want to ponder that distinction. The most important part of Amendment No. 89 concerns where the person who has caused the failure is a director or shadow director. Then the court would have within its discretion the penalty not merely of a fine or other remedy but the possibility of disqualification.
Quite a lot has been said about this in debates on the Bill. It is a very practical matter. Where the court finds—I insist that it is where the court finds—that the failure to obey the order was very grave, it should have at its discretion a series of possible remedies. It is often said that, these days, directors can be disqualified for a large number of wrongful financial failures. I suggest that only a strange imagination would not put a failure to put the organisation’s safety culture, to the level that the court says it must, on a par with the various financial failures in the Companies Act that may give rise to disqualification. It is, if you like, a cross-cut from safety law to company law. In my humble submission, it is a very relevant and proper safety cut—effective to get away in a grave case someone who has not caused the original accident or death but has failed to ensure, as far as possible, that the company’s safety culture is at the level that the court thinks proper by its order. I commend Amendment No. 89 and hope that the Government will at least consider the possibility of such remedies in the Bill, as in company matters of financial failure.
Will the noble Lord, Lord Wedderburn, consider a possible variation to this principle? There is cause for concern here. We have talked about the possible need for directors to be given designated or exclusive responsibility for health and safety standards. In this instance, the failure would probably be that of the director responsible for those standards. There will be great difficulty in finding enough people with the right qualifications already serving on boards to become dedicated health and safety officers at board level. Many very good directors will probably be asked to take on this responsibility and learn it on the job. Will the noble Lord, Lord Wedderburn, consider whether it might be fairer and more equitable if, instead of disqualification, the offence should be disqualification of a director from acting as a health and safety officer at board level so that the role has to be circulated to somebody else? It would seem a great shame to throw out the baby with the bathwater, if you are getting rid of a very good director in all other respects because he volunteered to take on the health and safety and could not cut the mustard with it.
The noble Lord raises a most interesting point. Perhaps I may answer him in two, or possibly three, ways. First, I do not believe that it would be sensible for the Bill to stress the need for someone in senior management or the board—the noble Lord has mentioned companies and the board so we will stick to that—to be the safety officer or safety director. Secondly, that is all part of a problem that is still there in the Bill: I call it the problem of delegation. In some people’s view—the noble Lord raises this germane point—the Bill allows for delegation to a point where it could almost never bite.
I do not in my amendment suggest that there should or must be a director on the board nominated as safety director or the like; I say that after the accident, the death and when the court has passed on the initial proceeding, a director who is responsible for failing to carry out a court order should, according to the discretion of the court, be open to disqualification.
I have written to the Minister on delegation, which must surely receive a little more thought before Report. I am sorry to have mentioned it, as the Minister has so much to do, and in the absence of his colleagues it is an extra burden, but delegation is such an significant problem that I hope he will be able to turn his mind to it. I do not believe, for example, that it should be open to a board, the articles of a company or any other arrangement to delegate expressly safety matters to someone below board and senior management level. Where that is done as the Bill stands, the Bill will never bite.
Delegation below senior management should not be allowed. Somebody in senior management should have to use his greater authority to deal with these matters. As I say, I have written to the Minister about this matter and, with his colleagues, he will no doubt consider it before Report. I very much look forward to the Government’s views on the general question of delegation as it applies to the Bill. I am grateful to the noble Lord, Lord James, for raising the point.
I found the arguments of the noble Baroness, Lady Turner of Camden, persuasive, as, indeed were the comments of the noble Lord, Lord Wedderburn of Charlton, and of my noble friend Lord James of Blackheath. There is a strong case for the courts to ensure that responsibility for putting things right after an offence has been committed should rest with a named individual or individuals. It is presumably safe to assume that the organisations in question already suffer from substantial management dysfunction; therefore, little may be achieved if the responsibility for rectifying serious structural or systemic problems is allowed to fall between the cracks of an inadequate management structure, just as responsibility for preventing avoidable and unnecessary death or deaths leading to the conviction presumably must have done previously. So it is right that we try to find a way through this.
There is, however, a reason for qualifying support. If an individual is charged with putting things right, the question inevitably arises: what sanctions may be applied against that individual if he or she fails to deliver the required improvements,
“in the organisation’s policies, systems or practices”?
We have already had a hint of that, with the references to possibly contempt of court and possibly a fine or various other remedies. I suppose all this creates a danger of going against the corporate character of the legislation, since it seeks to add a provision, here in Amendment No. 89, for the fining or even limited or indefinite disqualification, in extremis, of individual directors of organisations. I agree with my noble friend Lord James of Blackheath that we have to be a little careful, because we do not want to get rid of really rather clever, astute and powerful directors because they have a complete inability to deal with health and safety practices. I assume that the Minister will speak along those lines, but I look forward to hearing what he has to say.
All the amendments in this group are concerned with ensuring that organisations convicted of the new offence carry out any remedial action ordered by the courts. My noble friend Lady Turner set out very clearly how she believes that should take place. It is important that organisations comply with remedial orders, and to that end we have made the consequences of not complying with an order more serious than was the case in the original draft Bill. Organisations that do not comply with a remedial order will be committing an offence, and will be returned to the Crown Court, where they will be subject to, potentially, an unlimited fine.
Amendments Nos. 83 and 88 propose that the courts should be able to go further than that, however, and name an individual who could be guilty of contempt of court if the organisation did not comply with a remedial order. Taking a different approach, Amendment No. 89 proposes to introduce a new form of secondary liability to the offence of non-compliance with a remedial order, with the penalty of an unlimited fine and, in the case of a director, possible disqualification. Like the noble Lord, Lord James, I have some reservations about that approach. Some might feel that naming an individual amounts to threatening to sanction an individual for the faults of the company and would stigmatise that individual without necessarily affecting compliance. The noble Lord, Lord James, went further and suggested that it might be damaging to an exemplary director in all other respects.
It may not be necessary to introduce a secondary offence of non-compliance. If failure to comply with a remedial order was clearly attributable to the acts or omissions of a particular individual, the ordinary principles of secondary liability would apply: the individual could be prosecuted for aiding and abetting in the primary offence committed by the organisation. Furthermore, given that directors can be disqualified after conviction for a health and safety offence, disqualification may well also be available in respect of a director convicted of aiding and abetting non-compliance with a remedial order.
We are, however, committed to ensuring that remedial orders have their intended effect. It is vital that organisations convicted of corporate manslaughter do whatever is necessary to ensure that the offence will not recur, and if a remedial order is necessary to give effect to that, it must be complied with. I understand the points that my noble friend made in this respect about nominating an individual as responsible for securing compliance. I hope, too, that she understands my reservations and why this does not appear in the Bill. It might be that some progress can be made here, but I do not want to raise expectations that we later cannot fulfil.
Amendment No. 83 takes another approach to compliance—
I think that the noble Lord is progressing from Amendment No. 89, on which I wish to comment. It does not impose secondary criminal responsibility. The noble Lord’s points about the secondary liability of aiding and abetting had crossed my mind, but there are problems with aiding and abetting that would not apply in the situation that Amendment No. 89 addresses. Amendment No. 89 is a very simple case of a primary liability for causing the failure to comply with the order of the court. It is a primary failure to obey a court order; it is not aiding and abetting the organisation. It is about substantial, direct causation.
I agree with the noble Lord that the arguments based on secondary liability have their problems, but, with respect, they do not seem very substantial here. I do not wish to inhibit the progress that the noble Lord has mentioned and I am very grateful that the word has been introduced into the discussions. We look forward to that progress, but—I say this simply to expose a difference between us—the amendment is not based on secondary responsibility.
I am grateful to the noble Lord, Lord Wedderburn, for his elucidation. Clearly, we will need to reflect on his comments. As I was explaining, Amendment No. 83 takes another approach to compliance and proposes that the court should be able to require a convicted organisation to report back to it with details of the remedial steps taken. However, it is not clear how such a proposal could work, given that the original court will have risen at the end of the trial. Reconstituting the court to receive such a report would be a new departure for the UK courts, which currently do not monitor sentence compliance in that way. Without expert guidance it would also be very difficult for the court to assess the quality or appropriateness of the remedial action taken, particularly if it was highly technical.
A better approach would be to trust the expert bodies to do their job. The relevant enforcing body will have a strong interest in ensuring that safe practices are adopted in a convicted organisation.
I was anticipating that the noble Baroness would argue that it would be more appropriate for the court that considered the original case, with its knowledge of that case, to consider the response to the remedial order. Obviously, I cannot speak for the noble Baroness, who will have to make that point herself.
The relevant enforcing body would have a stronger interest in ensuring that safe practices are adopted in a convicted organisation, which is especially true if that body has been involved in setting the terms of the order as the provision now requires. I am therefore confident that, as well as being involved in drawing up remedial orders, regulators will want to be, and will be, fully engaged in monitoring compliance with them.
The noble Lord, Lord Wedderburn, raised the issue of delegation and his correspondence with us. I can confirm that we have received the letter and are giving it active consideration. We believe that some delegation in respect of the safe management of operations is sensible. That must go hand-in-hand with monitoring and supervision. Given the wide range of circumstances, the Bill cannot seek to prescribe to which it will apply. We believe the Bill will act as a safeguard against an abdication of responsibility. We will of course consider the letter very carefully because it raises important points, as I am sure noble Lords will appreciate, so we will have to reflect on it. I hope that, having heard what I have had to say, the noble Baroness, while perhaps not entirely happy with the Government’s response, will feel able to withdraw her amendment. We will see what progress we can make on this issue because we recognise its importance.
I thank all noble Lords who have contributed to this debate. There seems to be a fair measure of agreement among us; it is simply the way in which we go about it. I am not sure whether that is also true for the noble Lord, Lord James, who seems to sense that there is something to be dealt with, but does not agree with the way in which we are proceeding with this text. I am very happy about that. From what the Minister has said, he seems to take that position as well, although he seems to be relying more on the remedial orders and the necessity to ensure that there is a reporting back even on the remedial orders. Of course, that does not go as far as we would want, but I am glad to learn that the point about delegation, which has already been raised sharply by my noble friend Lord Wedderburn, is receiving further consideration, because it is very important.
I am willing to withdraw the amendment today, but we shall look carefully at the text of our discussion and await with interest any possible further progress by the Minister on rewording on this very important issue. It is important that steps are taken, when there has been an unfortunate, desperate injury and death, to ensure that the circumstances in which it arose are not allowed to recur, and that the court has a role in ensuring that.
Before my noble friend proceeds further, will she deliver an encomium—or whatever it is—on the suggestion that I made? I do not think that there should be any obligation that a specific court should be reconvened. Am I not right that any court of the same jurisdiction would suffice?
Yes. That is what the wording says—well I believe that that is right; that is a point to consider. I am not a lawyer, so I really do not know the answer, whereas my noble friend Lord Clinton-Davis is. That is a matter for the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
84: Clause 9 , page 8, line 15, at end insert—
“( ) A court before which an organisation is convicted of corporate manslaughter or corporate homicide may order it to take specified steps to—
(a) prevent the occurrence of future instances of the breach mentioned in section 1(1), (b) publicise its conviction for corporate manslaughter or corporate homicide and any associated convictions, or (c) make reparation to any person or persons particularly affected by the death of the victim of corporate manslaughter or corporate homicide, or to the public or any section of the public.”
The noble Lord said: It may save the Committee's time if I speak also to Amendments Nos. 85 and 86, which make the same point. I notice that for the first time they are not grouped.
Amendment No. 84 would alter the types of order that can be made by a court on conviction, and the circumstances in which they could be made. I am very much obliged to the work that Justice has done on that point. The amendments would allow the court, in addition to making remedial orders, to order the organisation in question to take steps to prevent further occurrences of the breach in question—particularly relevant in cases where the breach is not ongoing—to publicise its conviction and any associated convictions and to make reparation to the family of the deceased, the public or any section of the public. We hope that such orders would act as a greater deterrent than a fine alone.
Amendments No. 85 and 86 are very straightforward. They would permit the orders to be made without there being a prosecution application. I beg to move.
The first limb of the noble Lord's amendment seeks to reduce the likelihood of a convicted organisation reoffending. That is obviously a shared ambition of the Government and it was for this reason that we included in the Bill a provision for remedial orders. The orders deliver exactly the benefit of the first limb of the noble Lord’s amendment: they are targeted at remedying the breach for which the company was convicted, matters arising from the breach, and policies, systems and practices which created the environment in which the original breach occurred. Remedial orders give the court the power to tackle failings at every level of the failure that caused death, from practices on the shop floor up to overarching health and safety policies. To that extent, the first part of the noble Lord’s amendment is already catered for in the Bill.
The noble Lord also proposes that an additional sanction of publicity orders should be provided in the Bill. We discussed a similar amendment to Clause 1, and I indicated then that we were giving very careful consideration to the possibility of including some sort of adverse publicity order. Reputation, as we all know, is an important asset to most businesses, and such a sanction would be a strong disincentive to those who think it may be worth their while to disregard health and safety obligations.
Publicity orders are already being used successfully elsewhere. In Canada, for example, the courts can order an offender to publicise, in a manner specified by the court, the offence of which it is convicted, the sentence imposed, and any remedial action the organisation is taking. The Government are giving very careful thought to the possibility of including a provision along these lines in the Bill.
The third limb of the noble Lord’s amendment concerns reparation made to the family of the victim, and to the wider society. On reparation to family members, it is already possible for the courts to make compensation orders under Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000, but it is not likely to be in the interests of the family to be compensated in this way. These orders are designed for straightforward cases where the amount of compensation can be readily and easily ascertained. In the context of someone losing their life, assessing the appropriate level of the compensation order would be complicated. Civil courts are likely to be in a better position to award damages, as they have the time and expertise to assess the scale of loss suffered and to assess compensation. We therefore do not expect the courts to use these powers much in corporate manslaughter cases.
On making reparation to the wider society, the noble Lord is in effect calling for the courts to be given the power to order convicted organisations to make amends for the damage they have caused. Very similar orders were recently recommended by Professor Macrory in his Review of Regulatory Penalties, in which he suggested that the courts should be given the power to require a convicted organisation to undertake specific rehabilitative activities, for example by carrying out a community project.
The Government are very interested in this new kind of sanction, but I think all would agree that it would be a novel disposal for the UK courts, and further work and consultation is needed on how it could be delivered. That, of course, is beyond the timeframe of the Bill. We are, however, keen to implement Professor Macrory’s recommendation, and legislation is already planned to implement the administrative penalties recommended by the review. There is also the possibility that a number of alternative criminal sanctions for use by magistrates and judges in cases of regulatory non-compliance will be included in this work. I hope I have assured the noble Lord that we are actively considering the issue and are working out some practical way in which alternative sanctions for those convicted of a wide range of criminal offences—in this case, corporate manslaughter—might work.
Amendments Nos. 85 and 86 would allow the court to impose remedial orders without reference to anyone else. I understand why the noble Lord advocates this, but we argue that there are some risks in going down that road. During pre-legislative scrutiny, the Association of Train Operating Companies gave a very good example of a remedial recommendation that might on the face of it have been superficially attractive but which would in effect have compromised the structural integrity of train services. If we were to accept the noble Lord’s recommendation, it would be for the judge to decide the terms in which the order should be given. However, remedial orders may sometimes be very technical, and we argue that it would be unrealistic to expect a judge necessarily to be in the best position to recommend remedial action without some form of expert guidance. For those reasons, innovative though the noble Lord’s amendments are, we cannot accept them at this stage. They might, however, be considered in the longer term.
I thank the Minister for his quasi-positive response. When we talk about longer term considerations, it always worries me that the relevant Minister will be subject to the pressures of time and Queen’s Speeches. I also worry that he will give consideration to this, but that it will be another 12 years before the Government, or the relevant Home Secretary, can free his department from the burden of more than 50 law and order Bills since 1997 in order to be able to get something like this into the Queen’s Speech.
I shall withdraw the amendment. The noble Lord, Lord Hunt, always makes the point that there is not a lot of time. Could the Government see whether any progress on this could be made before this Bill becomes law? I fear that otherwise it will go into the great waste paper basket in the sky of government promises that cannot be fulfilled. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 85 to 89 not moved.]
Clause 9 agreed to.
Clauses 10 to 14 agreed to.
Clause 15 [DPP's consent required for proceedings]:
On Question, Whether Clause 15 shall stand part of the Bill?
I suppose from the Government’s point of view this is really a yes or no answer on whether they are prepared to accept this simple issue of principle. My purpose is to remove the requirement that a prosecution for corporate manslaughter can take place only with the consent of the DPP or the DPP for Northern Ireland. The effect of the clause is to prevent private prosecutions from being launched for the offence of corporate manslaughter.
Obviously—this applies to all criminal law—the prosecution of criminal cases should normally be a matter for the state, but there is also a general principle of criminal law that from time to time private prosecutions are permissible and desirable. I would certainly have thought that in the case of corporate manslaughter, the possibility of a private prosecution should certainly be permissible and often will be desirable, particularly in circumstances where there is an offence for which a government department can be held liable. To some extent, there is a potential conflict of interest between the Government and the DPP deciding whether a prosecution should be made.
We can all envisage circumstances where death has resulted from a tragic accident caused, in the view of the public, by the gross negligence of the perpetrating authority. For justice to be seen to be done, if the DPP has refused to allow a prosecution, there should be the possibility of a private prosecution. Understandably in these circumstances, the people who feel that they have been wronged by the act or omission do not go away simply because the DPP has decided that a prosecution should not be allowed. I stress that the organisation under investigation in the case of corporate manslaughter could often be a police or law enforcement body, or even the CPS. In our modern world, a failure to consent to prosecution will undoubtedly give rise to accusations that the DPP is seeking to insulate the relevant organisation from proceedings. Indeed, it is obviously totally inappropriate for the DPP to be asked to consent to the prosecution of his own department, which is included in the list in Schedule 1.
I started by saying that this is a simple point of principle. I hope for all those reasons that the Government could concede the desirability of permitting private prosecutions in relation to the corporate manslaughter offence.
Clause 15 stipulates that the consent of the Director of Public Prosecutions, or the DPP for Northern Ireland, will be needed before corporate manslaughter proceedings can be instituted. In Scotland, all proceedings on indictment are instigated by the Lord Advocate. Therefore, there is no need for a consent mechanism.
Requiring the consent of the DPP means that private prosecutions will be able to proceed only if the two-stage test in the code for Crown prosecutors is satisfied; namely, that the state of the evidence is such that there is a realistic prospect of conviction, and that a prosecution would be in the public interest. If the DPP does not consent to prosecution, that decision can be challenged through judicial review.
In Committee in another place, there was concern that this requirement effectively prevents private prosecutions. A question was asked whether, if the DPP felt that there was sufficient evidence and a public interest, there might still be some question of whether he would allow the private prosecution. There is no question here. There is no additional factor in the DPP’s decision about whether to give consent, and, if evidential and public interest tests are met, there would be no basis for refusing consent.
In the vast majority of cases, there will be no question about public interest; although I should pause to say that there may be some tragic cases where, for example, in the case of a family business and a close relative is killed, the public interest in pursuing a prosecution may be low. But even in these cases the CPS will bring a case if, despite the tragic circumstances, it is in the public interest to do so.
In practice, the DPP’s decision on consent will hinge on whether sufficient evidence is available. The CPS must assess the quality and admissibility of evidence and so on, and decide whether it supports a realistic prospect of conviction. That test means that, on the basis of the evidence, a jury, properly directed according to the law, is more likely to convict the defendant of the alleged charge.
Where the evidence does not exist to support a realistic prospect of conviction, we do not think that any organisation should face the prospect of a private prosecution. We do not see requiring the DPP’s consent as reducing victims’ access to justice. The Bill ensures cases can get to court and can be considered by the court under a wider test for liability than they currently can. We argue that it is in no one’s interests to see cases go to court where there is no realistic prospect of conviction under the new framework.
We believe that the label of manslaughter is and should be taken very seriously; that it should be reserved for the very worse sort of offending; and that its impact on a company convicted of it should be significant. But because we want it to have that effect, and believe it will, we do not want companies that manage health and safety well, but which tragically have a fatal accident, to have their reputations damaged through unfair charges. That is why we believe the DPP should be satisfied in every case that the evidence supports a reasonable prospect of conviction.
Given the safeguard that a decision by the DPP not to give consent can always be subject to a judicial review, we do not think that the provision advanced in the amendment should find its way into the Bill.
I take the point made by the noble Lord, Lord Razzall, about conflicts of interest of the DPP in Crown cases. We do not think that it should be a problem. The DPP is an independent person. It is a highly respected position that carries great integrity. We are entirely confident that the DPP would act independently and quite properly. In answering that point, we have to respect the integrity of the DPP’s position and understand just how that works.
There is a problem here—is there not?—that many Members of the Committee will be troubled by. Despite the Government’s confetti of exemptions, many public sector organisations, including some that are very closely associated with the DPP, will still come under the aegis of this legislation. There will, therefore, be at least a possible perception of a conflict of interest in the minds of the public. The DPP himself is included in the list of organisations in Schedule 1. I know that we all believe strongly in the integrity of the DPP, but it is the perception here which troubles me considerably—the point raised by the noble Lord, Lord Razzall.
Well, I take the noble Lord's point, but the history of how the DPP has operated has shown that we can have confidence in the DPP. In some senses, we could argue that the amendment undermines that position, because it questions that independence and integrity. I take issue with that quite seriously. We should rely on that independence and integrity and ensure that we express our confidence in the DPP to act independently and entirely properly.
My understanding is that that is a matter for administrative arrangements within the CPS. The papers are automatically sent to CPS headquarters and, in most cases, the matter is that branch level, so a distance can be achieved here and the system should work quite properly. Of course, the default position if people are unsatisfied with the DPP's judgment is that that can be questioned by judicial review.
Perhaps I can take the Minister to a slightly different tack. I would have great confidence in the Director of Public Prosecutions exercising the discretion that the Bill gives him, although I appreciate the publicity problems where a government department is involved. Is there not a second point about government policy? The possible conflict I detect is between the position that the Government take here and the position that they regularly take in all serious crime legislation. I heard it being taken the other day in respect of the Mental Health Bill, which is proceeding through your Lordships' House in Committee at this very moment—it is a pity that the two Committees conflict.
Again and again, the Government have said that the criminal law system does not pay enough attention to the victims. Although I cannot offhand cite particular occasions, the Committee will be well aware that that note is struck by the Prime Minister and other important Ministers. I do not think that it was struck in Bangalore, the other day by one very important Minister, but the victim’s place is a constant theme of government policy in criminal legislation. This is a very serious crime guarded by all sorts of limitations in the Bill—I do not suggest that there should not be particular conditions—but surely the Government’s policy suggests that in some circumstances a private prosecution should be left open in the Bill. My noble friend Lady Turner mentioned the organisation for those who are or have been victims and the dreadful consequences where workers are killed by gross negligence at work.
The noble Lord makes a case and puts an argument with which we do not ultimately agree. The way in which cases are prepared and the fact that the CPS gives them very careful consideration before going forward ensures that these interests are properly considered. It is in everyone’s interest for cases to be properly supported by evidence. Where evidence is not sufficient to suggest the likelihood of a proper trial, fair consideration and likelihood of a conviction, I am not sure that it would be worth the cost or be in the public interest for such a case to proceed. The requirement for consent does not ultimately prevent a private prosecution, but acts as a filter, which we have seen in some cases of public concern historically. I do not think that I entirely agree with the noble Lord. The noble Lord’s point about seriousness is important. These are very serious cases, and I suspect their number will be small. It is right that we should be absolutely certain that we are taking the right course of action, so that such cases can be properly heard with a realistic prospect of a positive outcome in terms of a conviction.
Of course, like other noble Lords, I was not in any way impugning the independence or integrity of the DPP. I do not think that the Minister has really dealt with my point: in this crime, as in almost no other crime, people who have been damaged, or whose loved ones have been killed, as a result of what they perceive to be the gross negligence of an organisation, will not give up simply because the DPP says that it is not prepared to prosecute. By definition, for this to be a relevant question, anyone who has suffered what those people have suffered will be, very often, in campaigning mode. Recently, when the Attorney-General failed to take actions that members of the public thought that he should have taken, we saw what happens in practice when people who feel aggrieved get into campaigning mode. I would think that it is significantly in the interests of the Government to agree this amendment: if the DPP has, for perfectly justifiable reasons, declined to give consent to a prosecution, the Government could simply say to someone who wishes to pursue it, “Well, it is always open to you to bring a private prosecution”.
The point that the Minister makes about the organisation needing to be protected against frivolous prosecutions is dealt with by the protections in criminal law procedure. With my noble and learned colleague Lord Lloyd of Berwick sitting on my right, I am bound to say that, by definition, all judges are fair and reasonable. If there is no case to answer and no evidence, any reputable judge—all High Court judges are of course reputable—will immediately dismiss the case for no evidence. The protection is already built in against frivolous prosecution. Removing this restriction would very much benefit this and future Governments, because when the DPP turns down a case and will not give consent the answer can be, “If someone wants to pursue it, it is open to you to bring a private prosecution”. I would ask the Government to think again on this for their own benefit.
Clause 15 agreed to.
Clause 16 [No individual liability]:
[Amendments Nos. 90 to 92 not moved.]
Clause 16 agreed to.
93: After Clause 16, insert the following new Clause—
“Limitation of proceedings
Proceedings for an offence of corporate manslaughter may not be instituted against an organisation if an action for damages for negligence would be time barred under the provisions of the Limitation Act 1980 (c. 58).”
The noble and learned Lord said: This is the amendment which I foreshadowed during my brief speech at Second Reading in the hope that the Government might give it favourable consideration in the mean time. It is right that it should come at the end of these Committee proceedings, because it is rather different from the other amendments which noble Lords have been considering. It is of course unusual—I accept that at once—for a serious crime to be subject to a limitation period. There is no period of limitation for murder or for rape, and as the phrase goes, time does not run against the Crown, and as the noble Lord, Lord Hunt, having displayed his knowledge of Latin earlier in the proceedings will no doubt recall, nullum tempus occurrit regi. This is therefore unusual, but the crime that we are considering is of a most unusual kind. Corporate manslaughter does not depend, as we are all learning, on criminal intent in the ordinary sense, but on negligence; and negligence is a civil and not a criminal concept. It only becomes criminal when the negligence is gross or in Scotland, as we have also learnt, when the conduct is reckless, which is a similar but not identical test.
Proof of negligence in civil proceedings depends on proof of fact—evidence as to fact, evidence as to events and, above all else, evidence as to conduct. It has been found that in civil proceedings, it is simply not fair on the defendant to require him to investigate events which have occurred many years ago. It has been the good sense of the law for many years now to insist on a limitation period for bringing proceedings in negligence for damages. That is true however serious the injury which the plaintiff has suffered and however great the loss. The limitation period in England for negligence is six years, while in Scotland it is three years, but in each case it is liable to be extended in certain events in favour of the plaintiff if he can prove that he would be unfairly prejudiced as a result.
We have this limitation period in civil cases, and the justification I say again is simply that it is not in the public interest that the defendant should be required to investigate events when the evidence has all gone cold and when many of the relevant witnesses may already have died. If that is true of civil actions for negligence, how much more is it true of a criminal prosecution for corporate manslaughter? It would simply be an anomaly that civil proceedings should be barred by the ordinary limitation period, and yet it would be open to the Crown to bring a prosecution when it would not be open to the plaintiff himself to bring civil proceedings. I can see no ground for making a distinction between the two. Surely, to investigate these cases, in the case of corporate manslaughter some 10 or 20 years after the event, would be bound to result in many cases in miscarriages of justice, which is just the kind of thing that we ought to be trying to avoid. Any limitation period is necessarily arbitrary, but the obvious move in this case would be to make the limitation period the same as that for civil actions for negligence. I beg to move.
Perhaps I may make a brief point. The amendment is couched in terms of the limitation period provided for in the provisions of the Limitation Act 1980. The noble and learned Lord did not spend much time on those occasions when the limitation periods are extended. My memory may be wrong, and I have not had a chance to check the precise language, but I believe that where there are central facts that could not be known within the limitation period, under certain circumstances the court can have that period extended.
The amendment as it stands would not, perhaps, give to the layman, at any rate, a clear idea that there would be many cases where the period should and would be extended. For instance, consider the asbestos cases, or the asbestos situation, to put it very generally. In the many claims made—by those who I still call plaintiffs but who are now called claimants—the illness, the death and/or the cause of death cannot possibly be known to the claimant within the short limitation period, and so it has to be extended. I cannot at the moment precisely list all the cases where a worker’s death would cause complaint on grounds under the Bill’s provisions on corporate manslaughter.
It should be made clear that the short periods of limitation would, in many cases, have to be considered carefully. They would give rise to an enormous amount of complex argument, which might give rise to the feeling that it might not be preferable to leave in the Bill the general rule that crime is not subject to limitation—in murder and rape, as the noble and learned Lord said.
I am very much obliged to the noble Lord for drawing attention to this fact. In many civil cases, the limitation period will be extended. That is the reason why I gave the illustrations of when it would be, but that is the very reason why I am not tying the limitation period to a specific period of six years, I am tying it to what would be the limitation period in civil cases. That may, as the noble Lord has pointed out, be extended for various reasons where, for one reason or another, the negligence has not, or could not be, discovered, and it may be much longer than the six years. But that there should be a limitation period seems to me to be in the highest public interest.
Perhaps I may mention one other thing, which I should have mentioned. The whole idea of limitation is not—in case it might otherwise be thought—an idea of the judges; it was something on which Parliament has insisted for, I would think, many hundreds of years. The noble Lord is a better legal historian than I, but I would think that the first limitation provision was certainly laid in the seventeenth century. So this is not a new idea of the judges; it is something that Parliament has always insisted on.
I am grateful to the noble and learned Lord, Lord Lloyd, for moving the amendments in the very fair terms that he did. He gave notice at Second Reading of his intention to table the amendment along these lines. Although we have given it some thought, it is not something that we feel persuaded or attracted towards, for reasons that I shall set out.
Picking up on the point about the history of limitations, my understanding is that the civil law of negligence has recognised the need for a limitation period since 1623—so the noble and learned Lord was right on that point—when apparently the first Limitation Act was passed through Parliament.
English criminal law generally proceeds on the basis that there is no restriction on the time that may elapse between the commission of an offence and its prosecution. There are important exceptions to that principle. For example, information charging a summary offence to be tried in a magistrates’ court must be laid within six months of the commission of the offence. Clearly, that does not relate to serious offences such as manslaughter. Clause 1(6) makes the new offence indictable only. The code for Crown prosecutors makes delay a relevant factor when considering whether it is in the public interest that proceedings should be brought. Again, that is specifically disapplied for serious offences, which the new offence will undoubtedly be. At present, there is no limitation period for bringing proceedings of gross negligence manslaughter, either against individuals or against companies. I am reluctant to introduce one in the absence of any specific mischief.
Generally, a limitation period in the law of negligence operates to provide some certainty that individuals and companies will not be open to claims for damages for loss many years after the loss was sustained. That puts the general interest in allowing people to reorder their lives and be aware of the extent of their liabilities ahead of the need to provide compensation. However, the interests are weighted differently when the question is one of holding a person to account for the commission of a serious offence.
That is not to say that the law is entirely at large here. For example, if there has been a lengthy period between a person’s injury and their death—perhaps in one of the cases alluded to by the noble Lord, Lord Wedderburn—the consent of the Attorney-General may be needed. Although the year-and-a-day rule was abolished some years ago, it was replaced with a requirement that the Attorney's consent be sought where more than three years passed between injury and death. That rule would apply to the new offence.
Equally, where very substantial delays have occurred, it might amount to an abuse of process for a prosecution to be brought. The noble and learned Lord, Lord Lloyd, made that point. In the 1985 case of Bell v DPP of Jamaica, the Privy Council accepted that courts have an inherent jurisdiction to prevent a trial which would be oppressive because of unreasonable delay. It laid down a number of factors to consider, including: the length of delay, the prosecution's reasons to justify the delay, the accused's efforts to assert his rights, and the prejudice caused to the accused.
The test, though, is very high: the defendant will need to show that as a result of the delay he will suffer prejudice to the extent that no fair trial can be held. However, that echoes the requirement in Article 6(1) of the European Convention on Human Rights for a charge to be heard within a reasonable period.
I hope therefore that, with those caveats and explanations, I have persuaded the noble and learned Lord that, although I cannot offer him direct comfort that I will accept his amendment, there are means at the courts' disposal to ensure that criminal charges are brought before them promptly. I do not believe that the balance of interests between allowing defendants to move on from a death or injury caused negligently and enabling justice to be secured is the same in the law of negligence as it is in the criminal law, and for that reason we are reluctant to transpose the civil limitation period into the criminal law. I hope that, having heard that, the noble and learned Lord will feel able to withdraw his amendment.
I am disappointed by the Minister’s reply, but I shall consider carefully what he said. I shall almost certainly want to bring this matter back before the House. The Minister made the valid point that there is no limitation period for individual charges of manslaughter. That is for the obvious reason that in individual cases of manslaughter by gross negligence, death almost always results very quickly thereafter. That would not apply in the case of corporate manslaughter, where one might be investigating systems of work which were operating 10 or 20 years ago. That is the crucial distinction, to which I shall return. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 17 to 20 agreed to.
[Amendment No. 94 not moved.]
Schedule 2 agreed to.
Clause 21 agreed to.
Clause 22 [Extent and territorial application]:
95: Clause 22 , page 14, line 8, at end insert—
“( ) in any place outside of the United Kingdom, where an inquest or fatal accident inquiry held in England, Wales, Scotland or Northern Ireland has brought a verdict of “unlawful killing” and the death was caused by circumstances identifiable under section 1(1) of this Act.”
The noble Lord said: This amendment would extend the jurisdiction of the offence to circumstances where an inquest in this country had resulted in a verdict of unlawful killing but the event itself happened abroad. Following such a verdict, it would be possible to bring an action against a body under the Bill. Perhaps I may just set out how the jurisdiction currently works under the Bill.
Currently, any company based in any country can be prosecuted under the Bill so long as the harm that caused the death took place in the United Kingdom. If the management failure took place outside the UK but the harm took place inside the UK, the company could be prosecuted. However, the offence will not apply either if the management failure took place within the United Kingdom but the harm took place outside the UK or if the management failure took place outside the UK, even if carried out by a British-based company, and the harm took place outside the UK.
I have in mind the recent case at the Louis Corcyra Beach Hotel, where two children tragically died of carbon monoxide poisoning while on a Thomson’s holiday package in Corfu last October. I understand that that case is still under investigation by the Greek authorities, but were it to be proved that there had been unlawful killing, there would be no opportunity under the Bill to bring a charge of corporate manslaughter against the holiday company, even if the deaths were the result of gross management failure in this country.
What is more, the Bill’s current application is inconsistent with the application to individuals. As the Minister in another place pointed out:
“There is … extraterritorial jurisdiction for some sex offences … and for homicides”,
“committed by British subjects”.—[Official Report, Commons Standing Committee B, 31/10/06; col. 218.]
When an individual has committed a crime abroad, he may be indicted in this country. There seems no reason why the corporate manslaughter offence—a sister offence to individual manslaughter, in many respects—should not apply where a British company acts with such negligence that preventable death occurs.
The Minister went so far as to say in the other place that he had a good deal of sympathy with the aims of amendments that would extend the jurisdiction, although so far I have seen no evidence in Committee that the Government have produced anything since then, despite having acknowledged that there could be some improvement in this regard. He cited the difficulty of extended jurisdiction as a reason for restricting the offence, referring also to the difficulty of gathering evidence. Yet British companies can be prosecuted for corruption offences abroad under Section 109 of the Anti-terrorism, Crime and Security Act 2001. There are other instances, too.
The Home Affairs and Work and Pensions Select Committee noted, at paragraph 254 of its report, that the Attorney-General recently spoke proudly of having secured the conviction, under international war crimes law, of a non-British citizen for torture committed in Afghanistan. Clearly, therefore, it is not impossible to gather evidence. Both that report and the Centre for Corporate Accountability have offered a solution to this problem. My amendment might not cover it entirely, but it is worth considering whether the offence could be extended so that, in the case of deaths occurring in the European Union where the management failure occurred in England or Wales, the body responsible for the management failure could be liable for prosecution.
My noble friend Lord James of Blackheath has suggested that I might consider a slight amendment to the penultimate line of Amendment No. 95, which says,
“and the death was caused by circumstances”,
so that it read, “and the death may have been caused by circumstances”. I have a lot of time for that suggestion. Whatever we decide, we must try to get this right so that we can prosecute the right organisations in circumstances in which their conduct justifies it. I beg to move.
I support the noble Lord, Lord Hunt, and Amendment No. 95.
Amendments Nos. 96 and 97 would extend the territorial jurisdiction to include any place of detention operated by the United Kingdom Armed Forces, and more generally. We believe that they make sense.
Oddly enough, this is probably an area best left to the judges, partly because the circumstances, in a world of globally expanding multinational and transnational corporations and organisations, are bound to give rise to many cases where the alleged gross negligence could be attributed to senior managers abroad or in the United Kingdom. I am horrified to mention the BP case again, but it illustrates the possibilities. At this stage of globalisation, we would probably not get it right if we tried to deal with jurisdiction in this Bill—except in the case of noble Lords whose imaginations were much wider than mine. There are already provisions on jurisdiction, which the courts apply, and they may or may not be sufficient; but we would have to think about jurisdiction in that much wider context. If noble Lords disagree, then by all means let us come back to it on Report and get something that is exactly right.
I wholly agree with the noble Lord, Lord Wedderburn, that this would be best left to the judges. The question is how we get it in front of the judges in the first place, unless we have a mechanism to make that process occur. I have from the outset of this debate been extremely concerned about what I see as the relative narrowness of the jurisdiction on this. I have always felt that the jurisdiction should really include the boardroom that sent the man out to stand in front of the bullet rather than the man who pulled the gun that fired the bullet in whichever country he was sent to. That is the fundamental flaw in our process here. This amendment, to some extent, overcomes that, because if the man who pulls the trigger to shoot the man gets convicted, you have effectively the means by which to progress to bring a charge in front of a British court. That, to some significant extent, answers my anxiety about jurisdiction.
From my original case studies, Case K is a perfect example. Case K was not a personal decision of mine; it involved a company that I took over that was in deep trouble. The former chairman, whom I replaced, had acquired the 30 per cent holding of a gold mine in Tanzania, to which he sent two people to work on its development. He sent them £60,000 a week to pay the local native workforce to help dig the goldmine. When I took over, they had already run up a bill of £28 million, and they had found absolutely zero gold. I cut off the funding of £60,000 a week immediately, whereupon the native workers lynched the two consultants whom we had sent out, and they sent us a beautiful photograph of them both hanging from the balcony porch. In those circumstances, the local native workers were prosecuted for murder in Tanzania, and that would have triggered the point that my noble friend Lord Hunt is seeking to establish. Without that, we could never have got that sort of case in front of a British judge, where the very reasonable point of the noble Lord, Lord Wedderburn, to leave it to a judge to decide, can then take effect. This is a wholly worthy amendment that should be pursued.
As I am on my feet for probably the last time in this Committee, noble Lords will be pleased to hear, I shall take this opportunity to express a cautionary concern. It is what my noble friend Lord Hunt would call a probe to the Minister, rather than a question. I am increasingly concerned that throughout the Committee we have been indulging in a gross oversimplification of what a corporation is. We have assumed that a corporation is a unitary business; very few are. Many businesses are conglomerates, big or small, and as such have diverse responsibility for anything from foundries through to retailing or production companies. Each of those will be run through a separate subsidiary, which will be a corporate entity in its own terms with its own board. They will all come under one single holding company. Each should require its own health and safety officer or director, who would be the responsible party in a case like this. However, they would all be under a single overall co-ordinating health and safety officer or director in the parent company.
I am by no means content that the wording of the Bill, and certainly the Explanatory Notes, give adequate guidance on how and where proceedings would apply in a multi-functional group where the manslaughter had been committed at a subsidiary level. Here I take the excellent point made earlier by the noble Lord, Lord Wedderburn. He has looked to see whether a line has been drawn to limit how far down a delegation can go, but if a parent company is delegated to a subsidiary, then the subsidiary would have a separate delegation within it as well. Delegations have delegations have delegations. Given that, I ask the Minister to give some thought to producing guidance notes to simplify this so that corporations who are going to have to live with this can understand exactly how a multi-functional company would deal with these different levels of responsibility.
I thought that that last peroration by the noble Lord, Lord James, was very grand, and I am sure that it was well intentioned.
These amendments deal with extra-territorial jurisdiction. I understand entirely the desire to make the legislation as extensive as possible and that in itself is a laudable objective. But we must balance that against ensuring that the offence is practical and enforceable as well as in line with the principles of territoriality.
Criminal jurisdiction usually applies on a territorial basis. This reflects the practical reality that that is where a country’s police forces operate and are effective. Once you go beyond a country’s borders, the police do not have jurisdiction and difficulties arise. As my noble and learned friend Lord Davidson explained during our Second Reading debate, in other jurisdictions UK police forces will not be in control of the investigation they have to carry out and will have no formal powers to gather evidence.
If a person is killed in a company’s plant overseas, the police would need to gather evidence and be able to present to a court over here, through witnesses and statements, evidence of how that person died, how the company’s plant was being managed and how that was grossly negligent. These matters are difficult enough for the police in respect of deaths in this country, but I am sure noble Lords appreciate that they could be severely hampered in an overseas investigation.
The Bill is based on the current statutory jurisdiction for manslaughter, which is distinct to the position of individuals where extra-territorial jurisdiction applies. The Law Commission recommended in 1996 that the position for corporate manslaughter remain on a territorial basis, and we have followed that. As it stands, the Bill would still extend in important respects to cases that occur not on the UK mainland but where the UK criminal law already applies and which the public would expect to see covered. It would apply, for instance, to deaths within territorial sea limits such as the Lyme Bay tragedy, which gave rise to the first ever successful corporate manslaughter prosecution, and it would apply to the circumstances of the “Herald of Free Enterprise”, which was a British ship.
A number of suggestions have been made during consultation, scrutiny and debate in the other place for extending the territorial jurisdiction of the offence: to British companies operating abroad, by analogy to homicide laws for individuals; to deaths in the EU but not more widely; and to the deaths of UK employees or employees normally based in the UK but posted abroad. Under the amendment tabled by the noble Lord, Lord Hunt, the offence would apply where an inquest or fatal accident inquiry returns a verdict of unlawful killing and that death was caused by circumstances identifiable under Clause 1. I fully appreciate the effort that has been applied to try to find a workable solution, but I am not sure that that has been achieved.
There would not be a question of jurisdiction until an inquest or inquiry had brought in a verdict of unlawful killing, but that of course may be some way down the line from the death. This would involve the police here seeking to pick up a manslaughter investigation after a potentially lengthy period of time. It would also leave great uncertainty at much earlier stages. Should the police be getting involved in seeking evidence because such a verdict might be brought in?
The second limb of the amendment requires that the death must have been,
“caused by circumstances identifiable under section 1(1) of this Act”.
We are not entirely sure what that test would involve, but it would seem to confer jurisdiction where a death was caused as a result of gross management failure by an organisation. This would appear to link jurisdiction to the question of whether the offence had been committed. That would mean that a court had jurisdiction only if it could be established that the offence took place. But that will be established only as a result of a prosecution, leaving the courts in a rather invidious position: if it is satisfied that a death has been caused by a company’s management failure, then the offence can be tried in the UK. But if that is not made out, then the case should never have come to the court in the first place because it does not have jurisdiction.
The test might be wider than this, but there remains a further concern that no other connection with the United Kingdom is required other than that the body was repatriated here and a verdict of “unlawful killing” returned. It would therefore extend to cases where a UK national is killed abroad, by a foreign company operating entirely abroad, provided that gross management failure by that company had caused the death. That would appear to be a very wide jurisdiction and not one that we think could in practice be effectively policed.
Amendment No. 97, in the names of the noble Lords, Lord Razzall and Lord Lee, appears to address this concern by conferring jurisdiction only where a substantial part of the grossly negligent management failure took place in the UK. However, this still contemplates that a substantial part of the failure might have occurred overseas. That not only involves the practical problems I outlined earlier for the police in seeking to investigate the offence, but also risks the prospect of lengthy investigations seeking to establish whether, taking the picture of gross negligence as a whole, it could be said that a substantial part of it occurred in the United Kingdom and therefore the offence falls within the United Kingdom’s jurisdiction. For cases such as this which involve death and allegations of corporate failure, we think that a clear test is needed so that investigators and families are clear from the outset whether there is a prospect of the Bill applying.
Amendment No. 96, also in the names of the noble Lords, Lord Razzall and Lord Lee, seeks to extend jurisdiction, but only in respect of persons detained by our Armed Forces abroad. We have concern whether such a provision could be implemented in practice. It may be necessary to detain people during continuing military operations in self-defence or defence of others, or in some cases, for imperative reasons of security. Even if held for a temporary period, or in a temporary facility, this amendment could be taken to apply. The tactical situation on the ground will, however, affect the precautions which the capturing troops can realistically take to ensure the safety or well-being of the captured person.
In an international armed conflict, there are clear legal rules to govern the conduct of service personnel in the Geneva Conventions of 1949 and associated additional protocols and in other provisions of the law of armed conflict. If UK Armed Forces personnel breach those rules, they are liable to disciplinary action and punishment in accordance with the service discipline Acts and they are subject to UK criminal law.
I hope that I have outlined some of the complexities here. The new offence represents a significant change in the law for the better for holding corporations and public bodies to account for gross management failure. We think that the right approach is to apply the new offence to deaths within territorial jurisdiction, where the law already applies, before we start raising hopes about how it might apply more widely.
I am very grateful to the noble Lord for paying tribute to us for giving this matter some thought. He has all the negative arguments out of the way. Could he now share with us the positive work that has been going on within the department to find a solution to this problem, given that the Minister in the other place said that he had sympathy with the efforts to extend jurisdiction? What has been going on in the department? When will the Government come forward with amendments in line with the sympathy and support expressed by the Minister in the other place?
I am sure that the noble Lord knows that we often express sympathy for amendments, and sometimes support, but that does not necessarily lead us in the direction of commissioning additional work to give greater effect to that sympathy and expression of support. I take the noble Lord’s point that one should always try to be positive about these things. I hope that my initial point was positive. We seek to put in place legislation that is workable and has as wide an application as is practicable. However, we have come up against a very practical consideration. I am sure that the noble Lord well understands the difficulties of trying to act outside a jurisdiction. It is very complicated and difficult. I made the simple point about evidence gathering being very difficult in an extra-territorial jurisdiction. There are some limited circumstances in which extra-territorial jurisdiction operates. They are limited for the very good reason that it is very difficult indeed.
It is right and proper to give sympathy, support and understanding and to give matters fair consideration, but there has to be a limit to where we can take this. Given the difficulties inherent in the legislation per se, we think that we have struck a reasonable balance in limiting the jurisdiction as we have.
That was a fascinating response. I think that the Minister is saying that nothing has happened in the department to explore the support that the Minister in the other place gave when he said not only that he had sympathy but that he had a good deal of sympathy with the aims of amendments that would extend jurisdiction. I hope that between now and Report the noble Lord will have a word with Mr Gerry Sutcliffe to see whether there is a way of meeting the points that were raised by the noble Lord, Lord Lee, and myself. These points anticipate the furores that arise from time to time when criminal acts have clearly taken place and one has to explain these matters. As former constituency MPs, both the noble Lord, Lord Lee, and I often had to explain to the bereaved why nothing could be done. I do not want to see those situations arise in the future. The noble Lord is not shaking his head. I am not allowed to refer to body language.
I understand where the noble Lord is coming from. During my political life I had to deal with a case that was extremely similar to the one mentioned by the noble Lord of the tragic death of two young children in Greece. At the time I felt considerable frustration that more could not be done to make sure that the jurisdiction within which that terrible incident took place was not made more effective. The Conservative Government were in place at the time. With good reason they took the view that there was very little that they could do in the circumstances. Therefore, I understand and share the noble Lord’s frustration. I certainly commit to having a word on the issue with my good friend Mr Sutcliffe to see just how far his sympathy and support went and what work he has commissioned as a consequence. We should conduct these sessions in good humour and with good intent.
I am very grateful to the noble Lord, Lord Wedderburn, for anticipating my words. I can read between the lines. I am now very happy to accept what the Minister has said. I understand that there is no commitment. I just wanted to ensure that there was exploration to see whether there was a way through. As the noble Lord, Lord Wedderburn, said—I know that I speak for the whole Committee when I say this—we are very grateful to the noble Lord, Lord Bassam, for the way in which he stepped into this role of answering all the points without, given the circumstances, perhaps having had the extensive preparation for the Committee stage that he would have preferred. He has on a number of occasions given us commitments which we are very happy to accept. As we have mentioned, there is limited time before 5 February. I hope that a lot of these problems can be sorted out in good time before then. In the mean time, with grateful thanks to the Minister and his officials, I seek the leave of the Committee to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 96 and 97 not moved.]
Clause 22 agreed to.
Clause 23 agreed to.
Bill reported with amendments.
The Committee adjourned at 3.42 pm.