Clause 1 [The offence]:
1: Clause 1 , page 1, line 11, leave out from “force” to end of line 13 and insert—
“( ) a partnership, or a trade union or employers’ association, that is an employer.”
The noble and learned Lord said: My Lords, in the absence of my noble friend Lady Scotland, I am pleased to be joining the consideration of the Bill. I am pleased that the first time I rise is to move an amendment that responds positively to concerns which have been put by a number of noble Lords and is supported by the Official Opposition—at least, the noble Lord, Lord Hunt, has added his name to it. I do not think that I will be in quite that position later.
The amendment deals with the extension of the offence to unincorporated bodies. The Bill that was introduced in the other place focused on the question of corporate liability for corporate bodies. The mischief that the reform seeks to address is the difficulty that has arisen in practice, under the identification principle, of prosecuting large corporate bodies for very serious management failure. To deal with that, the new offence defines a liability for management failure, which is not dependent on the guilt of a particular individual. The problem of finding a person to be liable for this is sidestepped in the case of a corporate body, because liability can be attached to the corporate body itself, distinct from any specific individual.
The circumstances are somewhat different with unincorporated bodies. These exist as a group of members or individuals, with no separate legal personality. The question of attributing liability to the body does not arise because there is no body as such. So there are some differences between the position of corporate bodies and unincorporated associations. However, we recognise that the offence goes deeper than simply setting out the legal liability of the corporate body. It is primarily designed to offer accountability where the way in which an activity has been managed or organised has been grossly deficient but no individual can be identified as responsible for that failure. Those are circumstances that can exist whether an organisation is incorporated or not, and we recognise the concern about extending the offence to such organisations.
The amendment extends the offence to partnerships, trade unions and employers’ associations. I freely acknowledge that we are still taking a cautious approach to the extension. As it happens, unincorporated bodies are not currently liable to be prosecuted for gross negligence manslaughter; they include a wide range of smaller and informal groups, including those in the voluntary and charitable sectors. Those smaller organisations are less likely to have access to advice about the implications of the new offence and they may act in a way that is risk averse to it. We would not want to see that extending the offence had the unfortunate effect of discouraging organisations from undertaking worthwhile activities. On the other hand, the concern is that a lacuna in the law will be left if larger organisations are excluded from the offence.
We have sought to meet this balance by extending the offence in the first instance to a defined range of unincorporated bodies such as partnerships and bodies that already have a quasi-corporate status under statute—trade unions and employers’ associations. That will extend the offence to a range of organisations closely associated with work and business activities which already have an identity as an organisation if not a corporate personality. The amendment also proposes that those sorts of organisation would be covered only if they are themselves employers. That does not mean that they are only covered in respect of duties to employees: they will be responsible under all the relevant duties under Clause 2. But organisations that do not employ staff will not be covered. Noble Lords may think that that has two benefits. First, it will inevitably focus on larger organisations rather than very small ones. Secondly, it will reflect the existing legal position because under the Health and Safety at Work etc. Act 1974 unincorporated bodies will owe general duties to staff and the public. This would not be imposing a new duty on those who are not subject to some duty already.
It was then thought right to allow for the possibility that further bodies might be included in the future. That is the purpose behind Amendment No. 51, which provides a power to extend the offence to further categories of organisation by secondary legislation subject to the affirmative procedure.
I draw noble Lords’ attention to the fact that the Delegated Powers and Regulatory Reform Committee published a report today that expresses concern about the extent of this power. That gives rise to a difficulty. The Government have thought it sensible to start with a clearly defined range of organisations which frequently share many of the characteristics of corporate bodies. That is intended to be coupled with a relatively straightforward way of extending the offence in the future, if that seems to be appropriate. Comments from noble Lords and other quarters have supported the idea of extending the offence, so we are going with the grain in seeking to do that.
The Delegated Powers and Regulatory Reform Committee suggested that we ought to identify the sort of body that the offence might extend to rather than leaving the power general. That is not straightforward. It is not at all obvious to us what sort of bodies the offence might be extended to that would not be included in any form of formulation that we put forward. When one looks at the possibility of defining the sorts of bodies that might be covered, particularly in line with comments that have been made so far, one would probably end up with something that was no narrower than the general power proposed at the moment.
Recognising that the committee wanted a justification for why there should be a power, that is what I have been seeking to put before your Lordships. Put shortly, in practical terms, there does not seem to be a great deal to choose from at the end of the day between the power proposed in Amendment No. 51 and one that seeks to set out more clearly the categories of body, but that is a matter for your Lordships, of course.
Other amendments in this group are also consequential on extending the offence to unincorporated bodies. Amendment No. 41 ensures that there is no loophole in the offence because partnerships do not themselves owe a duty of care. It also makes provision for partnerships to be treated in a manner similar to corporate bodies when being prosecuted for the offence. The opportunity has also been taken to put a number of definitions that are used in various parts of the Bill in a single interpretation clause. That is set out in Amendment No. 52. Consequential amendments remove the various single definitions.
In summary, the Government hope that in putting forward Amendment No. 1 we have addressed a concern expressed by many that the Bill should extend to a wider range of organisations. The Government have accepted that argument but believe that caution is still needed in how that is progressed. That is why the amendments are put forward on the basis that they are. I beg to move.
My Lords, I very much welcome the Government’s U-turn on this whole question of unincorporated bodies. I have added my name to Amendment No. 1 because it is precisely what I sought to persuade the Government about in Committee. However, the Bill has been in existence for a very long time. I rather share the view of the Delegated Powers and Regulatory Reform Committee that:
“We also note that this bill originated from Law Commission recommendations, was subject to pre-legislative scrutiny and has almost completed its passage through both Houses. The more important the delegation, the closer and more careful scrutiny it needs. We have considerable difficulty with such an extension of the bill being delivered by a Report stage amendment tabled at a late stage, not least because we ourselves have not had adequate time to consider the matter”.
I hope that the noble and learned Lord the Attorney-General will learn lessons from this episode. It is very important indeed, particularly when a Bill of this complexity reaches this place, to make sure that we have adequate notice of the amendments. I remain uneasy about Amendment No. 51.
The noble and learned Lord has in effect said to the House that he is not sure that the Government can do this any other way. However, he owes it to the committee and to this House to spend a little more time thinking about ways in which this power could be circumscribed in a little more detail. With that proviso, I very much welcome what he said. However, he needs to take on board and consider more carefully the committee’s recommendations.
My Lords, I join in with the remarks of the noble Lord, Lord Hunt. This topic caused significant concern when we debated it in the Moses Room. We are extremely pleased that, even at this late stage, the Government have moved to meet the concerns that these Benches and the Conservatives touched on.
I also share the noble Lord’s views about Amendment No. 51. As the Minister indicated, a significant difficulty arises when an amendment tabled this late elicits a report from the Delegated Powers and Regulatory Reform Committee, which says in substance that it has not had the opportunity to consider the matter properly.
I hope that the Minister accepts that these Benches have no wish to divide the House on Amendment No. 51 at this stage, particularly as its substance is exactly what we argued for in Committee. Therefore, it would be a foolish move. As the noble Lord, Lord Hunt, indicated, between now and Third Reading the Government could determine whether they could table an amendment to meet the concerns of the Delegated Powers and Regulatory Reform Committee to enable us to re-examine the matter at Third Reading. That would perhaps be an exception to the normal principle that the Government and the House authorities are trying to ensure; that we do not vote on Third Reading. As the noble Lord, Lord Hunt, indicated, this Bill has been subject to extraordinary scrutiny, and we now have these amendments being tabled at a very late stage, so perhaps this could be an exception and we could consider it on Third Reading.
My Lords, I have one comment to make. The noble and learned Lord knows as well as I do that there is no law that an unincorporated association must be small. If I may say so, it is wrong to criticise the Government for taking a very sensible path in Amendment No. 51. For example, the Government could have representations from a trade union or other body that its employees were working in a dangerous enterprise run by an unincorporated association, as it could be—“unincorporated” does not include only the clubs with which noble Lords and the Opposition normally associate it. It could be large, and the Government might then have to consider whether the Bill should apply equally to such an enterprise as to many others. It seems to me that Amendment No. 51 is essential to the Government’s compromise position on this question.
My Lords, first, I am grateful for the general welcome that the amendment has received. One stands here on behalf of the Government in the usual position; if you do something that others want, you are criticised for having left it too late or for having made a U-turn. We have listened, and we have come forward with an amendment. The important point is that the principles of the amendment are accepted and are welcome to the House. Of course, I take on board what the noble Lord, Lord Hunt, said, about lessons being learnt, and I will make sure that his comments are passed on to the Bill Ministers.
On Amendment No. 51, I am grateful to the noble Lord, Lord Wedderburn, for his support. He is absolutely right; we have got to move forward. I take the point, and the noble Lord is right to say, that what has probably happened here is that the committee felt that it has not had enough time to reach a final view on this. I propose to the House that when we come to it, I will move Amendment No. 51 as it stands, on the basis that the Government will consider this further between now and Third Reading. If it seems appropriate to table a further amendment defining in some further way the category of bodies, we would table such an amendment. Obviously, I am not guaranteeing that such an amendment would be tabled, but it certainly would be considered.
On Question, amendment agreed to.
Schedule 1 [List of government departments etc]:
2: Schedule 1 , page 15, line 34, at end insert—
“National School of Government”
On Question, amendment agreed to.
Clause 2 [Meaning of “relevant duty of care”]:
3: Clause 2 , page 2, line 34, at end insert—
“(d) a duty owed to anyone held in custody.”
The noble Lord said: My Lords, the purpose of the amendment is very simple; it is to rectify a glaring deficiency in what otherwise has been a generally welcome Bill, by including,
“a duty owed to anyone held in custody”.
I do not intend to repeat all that was said on Second Reading or in Grand Committee. I rest my case on the stark difference that there is between the rule of law and the provisions of the Bill as they stand on the one hand, and on the other hand the two sets of perverse reasoning put forward by the Government on why neither the rule of law nor the provisions of their own Bill should be applicable to those responsible for the duty owed to anyone in custody.
I am not a lawyer; but two elements of the rule of law seem to me to apply here. First, there is equality before the law, which means that every official, from the Prime Minister down to a constable or a prison officer, is under the same responsibility for every act done without legal justification. Secondly, there is equal protection under the law. The protection that you receive from the criminal law should not depend on whose carelessness puts your life at risk—a public body or a private company—or what they were doing at the time. Also, there is the provision of Article 2 in Section 1 of the European Convention on Human Rights, which states that everyone’s life should be protected by law.
Before Committee, the noble Baroness, Lady Scotland, who sadly is still not with us, in briefing a number of us said that the Government had been very brave and courageous in breaching Crown immunity in this Bill. Anyone reading it for the first time could be forgiven for presuming that this breach applied to the duty of custody, because the Home Office, and therefore its constituent parts, is included in the government departments listed in Schedule 1. Clause 1(1) states:
“An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised … causes a person’s death, and … amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”.
Subsection (3) expands on that, saying:
“An organisation is guilty of an offence … only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to”.
Paragraph 47 of the regulatory impact assessment states:
“The new offence will also apply to a range of government departments and other Crown bodies ... However, the Government recognises the importance of such bodies being clearly accountable for senior management failures that lead to death. The Bill therefore applies the offence to the Crown, and sets out a mechanism for bringing prosecutions against Crown bodies”.
Paragraph 51 of the RIA states that,
“the offence creates no new regulatory requirements, being based on the common law duty of care, and is closely linked to health and safety duties with which Crown bodies must already comply”.
Taken at face value, it seems to me that my amendments are entirely in line with the purpose and content of the Bill, which, as the Government have stated, applies to failures of management and the duty of care when it is owed by government departments and other Crown bodies, both of which are subject to the rule of law that applies to everyone in the country without exception.
However, it would appear that that is not to be. In her briefing, the Minister said that the Government’s bravery and courage did not extend to the inclusion of custody, which was a step too far for government, for reasons that were spelt out in the debates in another place, the Explanatory Notes and the words of the noble and learned Lord the Advocate-General for Scotland and the noble Lord, Lord Bassam, at Second Reading and in Grand Committee. But neither of those reasons seems to stand up to scrutiny.
In Committee, the noble Lord, Lord Bassam, said that the offence of corporate manslaughter,
“should not apply to deaths in custody because the unique set of factors contributing to the safe running of prisons involves too many matters of core government decision-making and public interest to render them appropriate for judicial, as opposed to parliamentary, scrutiny. There are already established mechanisms for investigating the causes of deaths in custody … prisons must act within the constraints of the resources available and balance the needs of all prisoners in making … decisions. The Bill … is about the management of health and safety”.—[Official Report, 15/1/07; cols. GC 196-98.]
But my amendments, then and now, are nothing to do with either core government decision-making or resources. They are entirely to do with the clauses of the Bill that I have already quoted; namely, the performance of management and the duty of care. We live in a pretty curious world where public sector management has to be good or where the owed duty of care applied is subject to core government decision-making based on resource constraints.
Responding to that reasoning, the noble and learned Lord, Lord Lyell of Markyate, said in Grand Committee that the Minister,
“has confused or obfuscated the position. It was not a decision of public policy that there should be an incompetent system in Feltham”—
leading to the death of one Zahid Mubarek—
“or that senior officials … should run a young offender institution in a way that put young offenders at risk of their lives. That is not a matter of public policy, but a matter of bad management and of bad supervision by the Home Office ... The Minister has evaded the real issue that is causing concern to the Committee”.—[Official Report, 15/1/07; cols. GC 199-200.]
The other reasons put forward are that deaths in custody are already subject to public inquiry, inquests, internal inquiries and those conducted by the Prisons and Probation Ombudsman, but those do not stand up to detailed scrutiny either. In view of their track record on this matter, I am surprised that the Government dare to mention public inquiries in their support, because throughout their life successive Home Secretaries and senior officials, such as directors-general of the Prison Service, have resolutely and consistently opposed every application for a public inquiry into a death in custody. The only inquiry that has taken place, into the murder of Zahid Mubarek at Feltham in 2000, followed the determination of the family over four years, despite many rebuffs, and finally the direction of this House.
The Government make frequent reference to their wish to rebalance the criminal justice system—whatever that means—in favour of the victim. To whom do the Government owe more responsibility and explanation than a victim who has lost a loved one who was in their care? I have always taken the line that someone with nothing to hide has nothing to fear from disclosure and everything to gain from having events such as deaths in custody opened up to public scrutiny. Therefore, one can conclude only that someone who opposes a public inquiry does so because he has something to hide. When that person is the Home Secretary, who is responsible for the safety and well-being of all those in his custody and care, one is entitled to wonder at his motivation. That is why I am concerned at his reported attitude to this Bill: that he will pull it if this House decides to vote for my amendment.
I was going to quote at length, but I shall not do so in every detail. Last week’s issue of the newspaper Inside Time—the national monthly newspaper for prisoners—contains an article by Mr Peter Quinn, a former prison governor and co-author of an official report to identify those members of staff at Wormwood Scrubs prison who are responsible for assaulting prisoners and to determine whether disciplinary action can be taken against any of them. He writes:
“We could not recommend this, since the Prison Service's own rules require such action to be taken as soon as possible after the misbehaviour comes to light. On each occasion this had been many years previously. By the time of the review some 40 potential witnesses had resigned, retired, emigrated or died. Some were in prison as a result of assaults”.
So to suggest that these things should follow years after an event does not seem to be very sensible. Mr Quinn also said:
“It was also evident that there were staff who were totally opposed to the corrupt elements of the regime, but that they were vulnerable to vilification by colleagues and experienced lack of support from their superiors. We were invited to make further recommendations and this is why we proposed a public or official inquiry, under a person of standing, to discover how parts of the prison had degenerated into the sadistic mess it became”.
That is not a disgruntled prisoner or a penal reformer speaking but a former prison governor talking about his own service. The Government claim that internal inquiries, such as he was commenting on, that never see the light of day or never result in any disciplinary action in cases where both failure of management or duty of care are proven justify exclusion from the Bill. The third justification—inquest—does not apply either because inquests only go into the causes of death.
It should not be necessary in a civilised society for decency and humanity to have to be imposed by threat, but I venture to suggest that had there been a risk that a charge of corporate manslaughter would have been brought against them, managers at all levels would have taken a great deal more care over the detailed exercise of their responsibilities in the cases of Christopher Edwards, Zahid Mubarek, Sarah Campbell, Joseph Scholes, Paul Day, Gareth Myatt and, I dare say, many others who might still be alive if that care had been properly exercised.
Two distinguished members of the Labour Party in another place, Mr Andrew Dismore, chairman of the Joint Committee on Human Rights, and Mr John Denham, chairman of the Home Affairs Select Committee, have expressed their dissatisfaction that the Government have not cancelled their desire to exclude deaths in custody from the Bill and, separately, have expressed the hope that this House will vote against that exclusion. Nothing I have seen or heard from the Government so far has convinced me that there is any justification in the exclusion. I look forward to hearing whether Ministers have anything further to offer than the unconvincing reasoning put forward so far. This House has both a duty and an opportunity to prevent something which would not make me proud were I part of it. The Prison Service’s statement of purpose says that it has a duty to treat those committed to its care with humanity. I hope that, in agreeing with these amendments, the House will uphold that purpose and the rule of law, demonstrating that we deserve to be called a civilised nation. I beg to move.
My Lords, I warmly support this amendment, moved so comprehensively and convincingly by the noble Lord, Lord Ramsbotham. The state has particular responsibility to those for whom it is immediately and directly responsible. If one is introducing legislation with far-reaching ramifications, one carries the nation behind that legislation much more convincingly if the Government and those in authority say that they will lead by example, making themselves second to none in their commitment to those principles. To say that everybody else must apply this law but they want exemption in their own sphere of responsibility is not a convincing position from which to win the positive support of the nation as a whole.
In moving his amendment, the noble Lord referred to the statement by Andrew Dismore, the chairman of the Joint Committee on Human Rights in the other place. I am a member of that committee; indeed, it is meeting at this very moment, taking evidence from Ministers on asylum policy. With the encouragement of my colleagues, I absented myself to be here for this debate. If the House will forgive me, rather than trying to regurgitate the committee’s sentiments in my own inadequate language, I shall draw the House’s attention to what the Joint Committee on Human Rights has said on this matter.
In our original report on the Bill, we said, starting at paragraph 1.38:
“We welcome the express application of the new offence to a range of Crown bodies and the express disapplication of Crown immunity from prosecution. Both of these, in principle, are capable of enhancing the compatibility of the UK's law on corporate manslaughter with the positive requirements of Article 2 ECHR …We note, however, that the combined effect of other provisions in the Bill restricting the definition or the scope of application of the offence is substantially to restore the legal or de facto immunity from prosecution enjoyed by many public bodies under the present law”.
We gave our conclusions in heavy type:
“In our view the effect of these provisions is to give rise to a serious risk that the UK will be found to be in breach of Article 2 ECHR in the particular circumstances of a future case where the case-law of the Court requires that there be recourse to the criminal law. In particular, 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. This would mean, in situations where responsibility for the death lay with the public body for a management failure, rather than any identifiable individual, recourse to the criminal law would not be possible”.
We put forward more supporting arguments, but I draw the attention of the House to paragraph 1.47:
“In our view, the restrictions on both the scope of the new offence and its applicability are likely to lead, in a sufficiently serious case, to the UK being found to be in breach of its positive obligation under Article 2 ECHR to put in place an efficient and effective system of judicial remedies including, in certain circumstances, recourse to the criminal law”.
That was our first report. We wrote to the Minister about our concerns—we always try to take a reasonable approach if we can—and we were given the courtesy of a very full reply. It would be an abuse of time to quote all the correspondence, but in Legislative Scrutiny: First Progress Report, Second Report of Session 2006-07 we referred to what had happened. We drew attention to the fact that in their response the Government offered three justifications for excluding deaths in custody and in other public sector contexts from the scope of the Bill.
First, we noted that the Government,
“argues that the decisions taken by public bodies when exercising public functions have a public policy dimension, involving matters such as the allocation of public resources, which are matters more appropriate for an elected Government to decide than for criminal courts”.
Our comment on that was unequivocal:
“In our view, while we agree that courts should only have a very limited role in decisions about the allocation of public resources, this reason cannot justify a sweeping exclusion from the new criminal offence of any decision taken by a public body in the performance of a public function”.
Secondly, we noted that:
“the Government argues that public bodies are subject to wider forms of accountability, including accountability to Parliament, accountability under the Human Rights Act 1998, accountability through public inquiries and the existence of specific watchdogs such as the Independent Police Complaints Commission”.
Our conclusion, which was also printed in heavy print, was that:
“In our view, however, those wider forms of accountability have proved inadequate in the past to prevent deaths caused by gross management failures in public bodies, and in any event they cannot have the same deterrent effect as the possibility of criminal prosecution and conviction. The purpose of the offence is to protect lives by preventing violations of the right to life, and the European Court of Human Rights in its Article 2 case-law has repeatedly stressed the importance of the deterrent effect of the criminal law in protecting life”.
The Government put forward a third explanation. We noted that,
“the Government seeks to justify the exclusions on the ground that criminal investigations are costly and disruptive and it would not be in the public interest to impose a resources burden on the Crown”.
I hope we will not be taken as having been dismissive, but we wrote, again in heavy type:
“In our view this concern with cost and resources belittles the importance of what is at stake: the right to life”.
The Joint Committee is representative of both Houses and all parties, and it gave a lot of time to this matter. The strength of the chairman’s comments in the other place is an indication of how the committee felt. Paragraph 2.13 of the report stated:
“Having considered the Government’s arguments, we therefore remain of the view expressed in our earlier report, that the exclusion from the scope of the new offence of deaths in custody and other deaths caused by gross management failure in the public sector where no individual can be proved to be responsible is likely to lead to the UK being found to be in breach of its positive obligation to protect life under Article 2 ECHR”.
The whole House should be extremely grateful to the noble Lord, Lord Ramsbotham, for bringing all his experience, commitment and professionalism to bear on this matter. Having moved the amendment so clearly, I hope that he will receive full support from all parts of the House.
My Lords, this issue should not be a test of one’s political beliefs. A powerful and convincing case has been put forward by the noble Lord, Lord Ramsbotham, supported by my noble friend Lord Judd. The rule of law should be at the heart of what we think about, rather than being directly confronted by this Bill.
This morning I read in the newspaper of the Government’s determination to oppose this amendment. I hope sincerely that that is wrong. I hope also that my noble and learned friend will agree to consider the amendment again and return later with an amendment which embraces what this one seeks to achieve. It gives me no pleasure to oppose the Government, whom I invariably support. But on this occasion why quarrel with an opinion voiced by members of another place and members here of all parties who are deeply troubled by what the Government hope to achieve? I hope that the Government will be frustrated on this occasion.
The noble Lord has put forward a compelling and convincing argument. I hope therefore that my noble and learned friend will understand that this issue deeply troubles many of us, and will agree to the proposition I have advanced. It does not, as I have said, give me any pleasure to do this, but on this occasion I think that I am compelled to do so.
My Lords, I speak to Amendments Nos. 3, 5, 11, 13 and 21 with which I am linked. These Benches very much support the sentiments expressed by the noble Lords, Lord Ramsbotham and Lord Judd.
In our free society, any organisation which effectively has near total control over an individual—be it the police, the Prison Service or a local authority—has a great responsibility to that individual and should be responsible under law for their behaviour. Where deaths occur they have to be thoroughly investigated and, if appropriate, charges brought. This corporate manslaughter Bill should apply to deaths in custody. It does the police no favours to exclude them from the provisions of this Bill.
Currently, relations between the police and many in our society are tender. In today’s media the most reverend Primate the Archbishop of York is quoted as warning that Britain is in danger of
“coming close to a police state”.
While I believe that statement is much exaggerated, the fact that it has been made at all is evidence of the extreme sensitivity of police/public relationships. It is our contention that protecting the police from action under the Bill can only add to mistrust, cynicism and suspicion.
I am surprised that the light, sensitive touch that the Home Secretary normally displays seems to have deserted him on this occasion. We have not taken kindly to the hints that if we continue to press the amendment we risk the whole Bill. Deaths during custodial sentences have not only united the principal opposition parties but also many Cross-Benchers, so ably led by the noble Lord, Lord Ramsbotham. In addition, organisations such as Inquest, Justice, Liberty and the Prison Reform Trust stand four-square with us.
So far, I have heard no speech from the government Benches—excluding those from Ministers—either at Second Reading or in Committee which support the Government’s position. Indeed, we have heard a speech indicating very much the opposite from the noble Lord, Lord Clinton-Davis. As the Bill stands, without the amendment it is not fit for purpose.
My Lords, I am sorry to disappoint the noble Lord, Lord Lee of Trafford, but I support the Government and the proposition they are putting forward. I have been undecided about whether or not it is right to lift Crown immunity in any case and, once one accepts its lifting, where the line is to be drawn. In Grand Committee, we heard powerful speeches from the noble Lords, Lord Hunt of Wirral and Lord Ramsbotham, in support of amendments which have now been brought forward in a slightly different form.
Perhaps I may share some of my concerns with the House. First—I suspect some people may think this is an old-fashioned and quaint view—I have a conceptual difficulty with the idea of the state prosecuting itself, or, at least, one arm of the state prosecuting another arm of the state. I appreciate that we get over that by dividing lines drawn in the sand, as it were, but it does lead to some absurdities. For example, if the amendments were accepted, in Scotland, assuming the evidence supported it, a death in a prison would be prosecuted against the Scottish Executive. In English terms, they would be the defendant; in our terms, the accused organisation. The Lord Advocate is constitutionally responsible for the investigation of all deaths in Scotland; the Lord Advocate is also a member of the Scottish Executive. So, in effect, the Lord Advocate would be taking a decision to prosecute an organisation of which she is a leading member.
In Scotland, the Crown Office and Procurator Fiscal Service is listed in Schedule 1, and yet that body, essentially, would be responsible not only for the prosecution but for the investigation of the offence. I dare say similar issues would arise in England. I notice that the Attorney-General’s Office and the CPS are also listed in Schedule 1.
Before I come on to my real concerns, perhaps I may mention the report of the Joint Committee, to which my noble friend Lord Judd referred. There is a difference between making an argument and making a judgment. The committee makes the argument under reference to Article 2 very well indeed. I accept fully that an argument can be made under reference to Article 2 that we ought to extend the Bill to include deaths in custody. Nor, of course, can one rule out the possibility that as the case law of the European Court of Human Rights develops and as the European convention, which is a living instrument, develops, we might at some stage have to consider extending the Act. But I do not accept the judgment stated at paragraph 2.13 of the first progress report of the committee that,
“the exclusion from the scope of the new offence of deaths in custody ... is likely to lead to the UK being found to be in breach of its positive obligation to protect life under Article 2 ECHR”.
With the greatest respect to the committee, that overstates the position. I believe that what the European Court of Human Rights would expect from the United Kingdom is a full and thorough investigation, possibly an independent inquiry held in public, and the prosecution of any individual found to have committed criminal offences. I do not accept that the European Court of Human Rights would expect the prosecution of one arm of the member state.
My Lords, I do not know of a case that would point to the conclusion made by the Joint Committee. I fully accept that the argument is there to be made.
However, my real concern is with the interaction between public policy and the duties of public authorities. I illustrate my concern by reference to a Scottish case, the case of Napier against Scottish Ministers. It dealt with slopping-out in Scottish prisons. In Scotland, we were somewhat behind England and Wales in providing sanitary facilities in cells. That resulted in prisoners being doubled up in cells with no sanitary facilities and, in effect, during times of lock-up, being forced either to ring for release from the cell or, more often, to urinate or defecate in front of their cellmate.
The matter was raised by Mr Napier against Scottish Ministers based on alleged breaches of Articles 3 and 8 of the European Convention on Human Rights but also based on the common law of negligence—delict in Scotland, tort in England. In the course of that case in the Court of Session, the issue of £13 million, which it was said had been taken from the Prison Service budget, was raised. I should say that Mr Napier had been incarcerated in C Hall in Barlinnie in 2001. I do not think that he was a stranger to that establishment.
In any event, in paragraph 88 of its opinion, the court stated:
“Two particular facts demonstrate that the respondents could easily have installed integral sanitation in the cells in C Hall before 2001. The first of these was the decision of the respondents, made in December 1999, to claw £13 million back from the Scottish Prison Service budget. There was a well-established practice in Government of allowing departments to carry budget surpluses forward into subsequent years. These surpluses might build up over a number of years. The discretion always existed for these funds to be redirected to other areas within the responsibilities of that Ministry, or indeed for them to be redirected to other Ministries. The Minister of Justice later explained”—
I think that this was in an affidavit—
“what had happened in relation to the £13 million in these terms: ‘That £13 million has been spent on other priorities in the Justice Department, such as a drug enforcement agency, tackling domestic violence, and establishing a witness support scheme for all of Scotland's sheriff courts. These are proper priorities. Government is about making choices; those other choices that we have made.’ The decision was made not to use those available funds to solve the slopping out problem”.
It is true that £13 million was taken from the end-of-year flexibility of the Prison Service. The decision was taken by the then Minister for Justice, Jim Wallace. To be fair to him, he would say that he was not aware that the likely consequence would be a slowing-up of the refurbishment programme. I should also say that Mr Wallace is a decent, humane individual who feels strongly about conditions in prisons. He also feels strongly about drugs and the misery that they cause, domestic violence and the support that is given to witnesses. However, before we decide where we are going to apportion legal blame, where do we in the court of public opinion assign blame for what happened? We could blame the Minister, or we could blame the party—my own party, the Labour Party—that proposed a drugs enforcement agency. We could blame the electorate for having voted for it, or we could say simply that these were proper priorities that were being set by government. The point is that the decisions were being taken in the context of public resources and their assignment.
Much was made in Grand Committee of the report on Zahid Mubarek. Although I had heard about him, I had not looked at the report. I went away and did so. I cannot claim to have read it all, or to be familiar with all its terms, but a couple of things struck me as I went through it. The first was that the Prison Service has co-operated very fully with the inquiry and was praised for doing so. In passing, I wonder whether it would have done so had it been facing prosecution, but there we go.
Paragraph 40.11 of the report relates to Mr Clifford, the governor who came in in, I believe, March or April 1999, and says that,
“it would be wrong to judge Mr Clifford’s tenure at Feltham simply by results. The core problems – too few staff, too many prisoners, too little investment and a supposedly militant local branch of the POA – were problems which he inherited, and could not be changed overnight. So too was the forthcoming diversion of resources for the successful separation of Feltham A and Feltham B”.
In the report’s final conclusion, Mr Justice Keith said:
“There are many lessons to be learned from Feltham’s decline, but the most important is that population pressures and understaffing can combine to undermine the decency agenda and compromise the Prison Service’s ability to run prisons efficiently. When that happens, it is important for the Prison Service to tell ministers that, and they should listen very carefully to what the Prison Service has to say. The Prison Service will no doubt continue to strive to do the best it can with the resources it has. But if those resources are simply not enough, and the prison population continues to increase, ministers must find the extra money to enable the Prison Service to deliver a proper regime for the prisoners it is required to hold. If more resources are needed to ensure that our prisons are truly representative of the civilised society which we aspire to be, nothing less will do”.
I listened with great care to what the noble Lord, Lord Ramsbotham, said about this being not about resources but all about management. On the basis of the above remarks, I simply cannot agree. The management of Feltham, and indeed of other institutions, is always made in the context of public obligations and the resources that are available.
I would have a lot more sympathy with these amendments if, as a corollary to them, the Prison Service was entitled to charge the state a realistic price for keeping prisoners in custody, if it were to have a free hand to determine the level of security in which it kept individuals and could refuse to take a prisoner or a particular type of prisoner. That would put it on the same footing as the private sector, which is controlled by costs, while the public sector is controlled by a host of other factors including resources, investment, and the statutory and common law obligations that are imposed on the Prison Service and others.
In considering these amendments, we also have to look to ourselves. The prison population in England and Wales, and in Scotland, is far too high. We do not have the number of places to accommodate all prisoners in the kind of conditions in which we, in a decent society, would like to see them. We have to look to the number of laws that we pass and the kind of custodial sentences passed by the courts and to consider the amendments in that context. However, it is simply unfair, in my respectful submission, to pass the buck to a management that does not have the resources, the investment and everything else that is required. The great distinction between the sectors is that while the only control in the private sector is one of cost, in the public sector, there are other obligations.
My Lords, the noble Lord, Lord Ramsbotham, has set out a very powerful case. The amendment to bring deaths in police and prison custody within the ambit of the Corporate Manslaughter and Corporate Homicide Bill deserves strong support from your Lordships’ House. The amendments would not, of course, mean that all or most deaths in custody would result in a prosecution for corporate manslaughter. We are not talking about a blanket provision. That would apply only when, exceptionally, there had been a gross breach of a relevant duty of care. However, if that was the case, in those circumstances, a prosecution for corporate manslaughter should enable the courts to hold that serious management failures, a point rightly stressed by the noble Lord, Lord Ramsbotham, had occurred resulting in an individual’s death.
In their 2005 consultation paper, Corporate Manslaughter: The Government’s Draft Bill for Reform, the Government argued that deaths in custody should be exempted from the scope of the Bill on the grounds that,
“organisational failings in these areas are more appropriately matters for wider forms of public and democratic accountability”.
They argued that deaths in prisons are,
“subject to rigorous independent investigations through public inquests before juries and through independent reports capable of ranging widely over management issues and publishable post inquest”.
This is nonsense. There are still grieving parents who have no answer to how many vulnerable youngsters have died. I have taken up case after case in your Lordships’ House. I would simply recommend that people look at the case studies that have been produced by inquests to back up this statement.
However, the Independent Police Complaints Commission effectively answered that argument in its comments on the consultation paper. It stated:
“The consultation paper suggests that the reason for not applying corporate manslaughter to public functions is that this would conflict with existing accountability mechanisms”.
That point was repeatedly stressed by the noble and learned Lord, Lord Boyd. The IPCC continued:
“In fact, it would complement them. All deaths following police contact have to be referred to the IPCC, and some of these will be independently investigated. If the evidence from such an investigation showed the most appropriate way forward was a corporate manslaughter prosecution, it would cause serious public concerns about the effectiveness of public accountability if this was not an option”.
The commission pointed out that at present, in a case of serious systematic failure resulting in death,
“there could be a disproportionality whereby a death occurs and the only sanctions available are minor disciplinary sanctions against individual officers”.
This is a wholly unsatisfactory position, which the amendments would remedy.
Unless these amendments are passed, a private company running a business could be liable to a charge of corporate manslaughter, but a public service charged with the care of particularly vulnerable people behind locked doors and high walls would not. This is an indefensible situation—indeed, because of the particularly vulnerable position of prisoners, we should take special care to protect their lives. Even more indefensibly, a private company running a prison would not be liable to prosecution for corporate manslaughter, although a private company running any other kind of business would be liable to such a charge.
The House of Commons Home Affairs Committee and the Work and Pensions Committee concluded in their joint report on the draft corporate manslaughter Bill that,
“there is no principled justification for excluding deaths in prisons or policy custody from the ambit of the offence … where deaths in prisons and policy custody occur, they should be properly investigated and the relevant bodies held accountable before the courts where appropriate for an offence of corporate manslaughter”.
Perhaps I may remind the Minister of the analogy with previous race relations legislation whereby functions of criminal justice agencies, and police and immigration officers, were excluded. It took the death of Stephen Lawrence and a proper inquiry to make the Government pass the Race Relations (Amendment) Act, which brought these agencies within the jurisdiction of that legislation. Let us not make a similar mistake.
My Lords, I support the amendment. I shall be brief because all the points that I would have wished to make have already been made. It is said that one litmus test of any society is the way in which it treats those which it holds in custody. As I understand it, in any civilised society, “custody” applies to anyone who is detained by any servant of the Crown. I speak as a police officer for more than 30 years. I see no reason whatever to exclude the police from the effects of this Bill. We can be proud of the police service in this country, but that is not to say that mistakes do not happen from time to time or that at times; rare though it may be, things go wrong.
So why create doubt in the minds of those within the services and among those who look inwards at it? I believe that if we were to support this amendment it would send all the right signals internally and externally. Indeed, to exclude it would send, quite obviously, all the wrong signals. I said that I would be brief, but the point needs to be made that I support the amendment that has been so fully and expertly put to this House by the noble Lord, Lord Ramsbotham.
My Lords, I regret that I was unable to be in your Lordships’ House at Second Reading, for which I apologise. The death of the wife of a close friend had to take precedence over my attendance. However, I wish briefly to make a couple of points about deaths in custody. On reading the Official Report of the Second Reading and the Committee stage, if one did not know better, one could be forgiven for thinking that a death in police custody would not be investigated thoroughly, nor would there be any recommendations for action to be taken either in the criminal court or under police discipline regulations. That is not so.
In Committee, the noble Lord, Lord Bassam, rightly pointed out that police are not and must not be above the law. I certainly agree, and I would wager that every police officer in the country would agree that the police are not above the law. Indeed, that reflects a comment of the late Lord Denning. I cannot remember the exact words and I do not attempt to imitate his lovely Hampshire accent, but he said something like:
“Be they ever so great, they are not above the law”.
I am sure that the noble and learned Lord will correct me if I am wrong in that, but Lord Denning said it and we believe it.
Should there be a death in police custody, it is immediately reported not only to the coroner but also to the Independent Police Complaints Commission. The commission ensures that a thorough and independent investigation is carried out and may well recommend that someone it deems responsible for the death should stand before a court of law. If there are side issues of discipline, not infrequently it will recommend that a disciplinary charge be brought. Having been the president of a number of disciplinary hearings, I can assure noble Lords that they do not hand out minor punishments. Dismissal from the service or a requirement to resign immediately is not uncommon if there have been grave breaches of discipline. My fear is that this amendment may well make the police risk-averse and that the Act will have the opposite effect to that intended. If the amendment is passed, more deaths will be caused rather than fewer.
I understand fully the sentiments behind the amendment and I can see how they must apply, certainly in the testimony of the noble Lord, Lord Ramsbotham, on the case of Mubarek, the young detainee in Feltham young offenders’ institution. That would have persuaded me that the Bill should go through with this amendment, but there are so many risks attendant on it. Any death in police custody is properly investigated, and officers may stand before a criminal court. I do not think that the amendment is necessary, and I fear that it will make the police risk-averse.
Let me give a brief example of risk-averseness. On 22 December 1974, a long time ago now, a bomb was thrown through the window of 17 Wilton Street here in Westminster. It was then the home of Edward Heath. A marked police car was patrolling nearby, but the officers in that car did not know about the bomb. They saw a Ford Cortina motor car with a driver and two passengers acting suspiciously by driving through red traffic lights and the passengers looking about them. When they apparently noticed the police car, the Cortina picked up speed. The police car did the same because the officers suspected that the car had been stolen or was being used in a crime. However, because a force order had been issued to the effect that high-speed chases were not to be indulged in without permission of the then chief inspector in the police control room, the officers did not want to cause any danger to other people or to themselves, or to lose their jobs if they disobeyed that order, so they abandoned the chase.
A year later, when three suspects who had given themselves up in the Balcombe Street siege were being interrogated, one of them, when asked what happened that day, said to me—I was on the investigation at the time—“We were chased”. The question was put to him, “What did you do?”. He said, “We went round the corner and abandoned the car”. One year later, five other people had died. The suspects were charged with the deaths of Ross McWhirter, Allan Quartermaine and a Dutch female travel courier, and with the maiming of many hundreds of other people. They were found guilty and sentenced. If only those officers had not been risk-averse, they may well have prevented a number of deaths and serious injuries. We should consider that.
During the previous stages of the Bill, the words “common sense” and “balanced” have been used. I ask us all to think carefully about a balanced approach to this issue. As it stands, the Bill will serve a very useful purpose, and will fill a lacuna in the law. I lost a valued colleague on the “Herald of Free Enterprise”. Having previously been a passenger on that ship myself, I can imagine the absolute horror and terror of those men, women and children as the boat turned over simply because the doors had not been closed. The “Piper Alpha” disaster, the death of Mubarek, the death of Sergeant Roberts in Iraq—one can see that this Bill might well cover all those cases, and indeed should. I fear that with the amendment, as I have already said, police will become too risk-averse. However, your Lordships could resolve another pressing problem by voting for the amendment; it would help reduce prison overcrowding. I think the clause should stand as it is.
My Lords, I had not intended to intervene in this debate, and so far have not done so in the course of the Bill, but the speech of my compatriot, the noble and learned Lord, Lord Boyd of Duncansby, prompts me to reflect briefly on some of the things he said, which certainly rang no bells with me. First, he said he had a conceptual difficulty with understanding how the public service could prosecute itself. He was answered inferentially by the noble Lord, Lord Imbert, who pointed out that in the event of a death being caused, it being apprehended that there was blame and an inquiry being held, it was perfectly possible to prosecute the police. The only question is whether that can be done by other, more ordered means than a prosecution that follows the exercise of executive discretion by the Home Secretary, or someone who has a clear political interest in the body for which he is nominally responsible.
The consideration that flows from that, however, is that, in my experience of more than 40 years in two Houses of Parliament, the wider remedy of a parliamentary inquiry into the circumstances of a particular case of death in custody will not give anyone a secure sense that the victims of gross mismanagement are in safe hands, so long as what is popularly called the “High Court” of Parliament exists. That has not been our experience as the years have gone by.
The second question arising from the noble and learned Lord’s speech—which I was surprised to hear, because I greatly admire him—was his reflection on the issue of Article 2 of the European Convention on Human Rights. He appeared to be casting doubt on the judgment of the Joint Committee of the two Houses of Parliament that Article 2 was at risk of being offended. He appeared also to be saying that he would prefer to wait until there was a judgment in the European Court of Human Rights making it clear beyond peradventure that this was the case. I am bound to say that I would prefer to rest my judgment on the apprehensions of our eminent committee.
Finally, when the noble and learned Lord went into his account of the Napier case in Scotland and talked about “slopping out”, it seemed to me that he had lost the plot. We are not talking here about mismanagement resulting in indignity to individual prisoners; we are talking about the loss of life, the right to life and standards that ought to be held in high regard by our public servants. Thank goodness that in this debate we have heard from policemen and others that those considerations can be sustained by the application to the public services, as to others, of the rule of law.
My Lords, I declare an interest as a partner in a national commercial firm of solicitors, Beachcroft LLP, and as president of the All-Party Group on Occupation Health and Safety.
I thank the noble Lord, Lord Ramsbotham, for his introduction. The clarity and passion with which he opened this debate were of the highest order. He has set an entirely appropriate tone, according the debate the gravitas it merits. I believe we are debating the most important possible set of amendments to the Bill; they cut right to the heart of the Bill’s appropriateness and viability, both as a functional piece of legislation and as a historic legal landmark, the end result of many years of preparation, debate and redrafting. As many of the speakers have pointed out, the essential question before us is whether or not the Prison Service and other public bodies detaining individuals in custody owe a clearly defined, legally enforceable corporate duty of care to those individuals. My response is: of course they do. They must; it is a duty of the highest order. Rather like the noble Lord, Lord Judd, I find it incredible that this Government could or would say otherwise.
Those are the fundamental principles at the core of this debate about extending the Bill to deaths in custody. I do not think I need go into the arguments the Government have adduced, as they have already been prefaced by a number of speakers. I await with great interest to see whether the noble and learned Lord the Attorney-General will go back to those old arguments or accede to what is clearly an overwhelming majority, in all parts of the House, that would like to see a more positive response from the Government.
The noble Lord, Lord Dholakia, pointed out some case studies. Ten unlawful-killing verdicts have been returned by inquest juries. The Government say that that is an appropriate means of accountability; rather, they add a formidable impetus to the creation of a corporate offence of manslaughter.
The Government have pointed to public inquiries as a method of accountability. Yet as the noble Lord, Lord Ramsbotham, said, they have consistently and resolutely refused to hold inquiries into the deaths in custody of Zahid Mubarek and Joseph Scholes and have resisted the attempts of both families to have a public inquiry held in the civil courts. I have been around long enough to know that there is a pattern to this. Parties in opposition tend to call for public inquiries, while parties in government regard them as an expensive and unnecessary nuisance—and so the wheel turns. But I hope that noble Lords appreciate that this debate has not been about partisan politics. As the noble Lord, Lord Clinton-Davis, reminded us, it is really about justice. The poverty of the substantive argument against extending the offence is again obvious when one hears reference to cost. As the noble Lord, Lord Dholakia, pointed out, we are dealing with a gross breach. The families of those who die in custody as a result of the grossly negligent behaviour of a public service do not seek financial compensation but want a legal acknowledgement of injustice and a well-founded hope that responsibility has been accepted and lessons learnt. The refusal of Ministers to countenance applying these principles to deaths in custody will, I am afraid, reinforce perceptions of a Government fearful of exposing their own activities to the same level of scrutiny they seek to apply to others. Where is the substance of the Government’s commitment to the rule of law? Physician, heal thyself.
I also hope that Ministers will not respond frivolously by quibbling about the amendment’s wording. They now have to face up to the essential, fundamental point of principle which is at stake. Third Reading still lies ahead, with all the attendant possibilities of getting the details right. I want the Government to be brave and look the big questions of life, death and justice fully in the eye. There can be no greater responsibility than the power to deprive an individual of his or her liberty. If that power is exercised by the state so negligently that it deprives its own citizens of life, then accountability should be clear, transparent and clearly effective on a case-by-case basis. For deaths in custody, this law is an obvious vehicle.
I have one more example. A case where inappropriate restraint techniques, principally those intended for restraining adults, are used in the restraint of juveniles in custody, with fatal consequences, would be a perfect illustration of a corporate offence. The idea that it would be adequately dealt with by voters at the next election is at once laughable and tragic, truly an insult to our intelligence. I should add, in view of the speeches of the noble Lords, Lord Imbert and Lord Dear, that the amendments are in no way inimical towards the police or the Prison Service, and they should not be perceived in that way—on the contrary. I do not agree with the noble and learned Lord, Lord Boyd of Duncansby, who until very recently had been Lord Advocate for six years. I understand where he is coming from, but it is not just a question of the state prosecuting the state. The noble Lord, Lord Maclennan of Rogart, has already answered that point.
I simply say this, particularly to the noble Lord, Lord Imbert: if the amendment is accepted by this House today, as I fervently hope it will be, staff in all those services will be able to hold their head up high. They will be able to demonstrate that they do not need any special treatment, they have nothing to hide, they are willing to be judged by the highest standards and are subject to the same disciplines as the rest of us. They are not above the law, as the noble Lord said.
If the message goes out from this place that the services need special dispensation and protection, it would do a great deal of damage to their reputation. We are talking about highly trained and professional people, and it is patronising and indefensible to suggest that they, of all people, must be clad in immunity, particularly when the Bill sets the bar for prosecutions so very high.
The choice before us today is clear: the noble Lord, Lord Ramsbotham, has outlined with great and devastating clarity the reasons for applying this offence to deaths in custody. As the noble Lord, Lord Judd, and my noble friend Lord Campbell of Alloway have said, failure to do so poses a potential contravention of Article 2. We must listen to our colleagues in that respect.
I urge other noble Lords to support the amendments. I do not want to tempt fate, but there has been a remarkable lack of support for the Government from their own Benches, apart from the noble and learned Lord, Lord Boyd of Duncansby. I detect the emergence, across the House and beyond it, of a consensus in support of the amendments. I would call it a consensus of the fair-minded that I encourage Ministers to join, even at this 11th hour. I hope that the noble and learned Lord the Attorney-General will be able to take some lessons from this debate and give the legislation the teeth it needs, opening up the Government to the application of this new offence, which is of their own making. Only by demonstrating that the Government fully accept their own responsibility, as custodian of those who have been deprived of their liberty, will Ministers create legislation of lasting value and credibility.
My Lords, I recognise the strength of feeling that has been expressed with complete sincerity by all those who have spoken, and I thank them. There was a lengthy debate on this in Committee and there has been a lengthy debate today on Report. I do not want to detain the House too long from doing what it plainly wants to do, if I detect its mood correctly, and expressing its view.
I agree with the noble Lord, Lord Hunt, that there is an issue of principle here. I should like to summarise the Government’s position. Ultimately, the issue of principle will come down to what position the other place—it has significantly supported the Bill and has not taken the view that the extension that the amendment of the noble Lord, Lord Ramsbotham, seeks should be included—will take. We will not know that unless and until it has another opportunity to consider this.
Before proceeding to a Division, which I think is inevitable, I should like to correct one or two misapprehensions. I do, with respect—I mean that; it is not a lawyer’s “with respect”, because I really respect the way the noble Lord, Lord Ramsbotham, put his point of view—believe that the arguments advanced by the Government to date and today have been dismissed too readily. I illustrate that by recognising that the debate is important and complex and that two very senior ex-police officers—the noble Lord, Lord Dear, from the West Midlands, and the noble Lord, Lord Imbert, former Commissioner of the Metropolitan Police—take different views on the amendment. Neither takes the view that the police should be above the law—nor do I or the Government, who do not believe that any should be above the law—but they take a different view about the validity, merits and justification of extending this particular offence in particular circumstances. It is not, with respect to the noble Lord, Lord Hunt, a question about whether it is accepted or rejected that a duty of care is owed by the state—by the Home Office, for that matter—to those who are in custody. Plainly, such a duty exists. The question is whether corporate responsibility in a criminal sense should be imposed on the Home Office or the police, and whether they should be in the dock on a criminal offence.
Nor is it a question of whether others should be subject to the law. The noble Lord, Lord Hunt, said that these individuals—the police, prison officers—do not expect to be told that they have to be protected specially by the law. Nobody is talking about that. They are subject to the law and if the responsibility for a death could be put at the door of an individual, that individual will find himself or herself prosecuted.
Nor is it a question of whether the Government take a different view on the importance of their responsibility towards those in custody or the tragedy or worse of those who die in custody. I certainly do not. One step that I took soon after taking this job was to personally review the cases of deaths in custody where prosecutions had not taken place to see what improvements could be made. But there is a real question of principle about whether corporate criminal responsibility should extend in particular ways.
My first point illustrates that, as the Bill stands, cases of deaths in custody as a whole are not outside its ambit. They are not. The Bill is clear that the responsibilities as occupiers of premises and to employees are relevant duties of care, and they are only excluded to the extent that there is a decision as to matters of public policy under Clause 3(1). Under Clause 3(2):
“Any … duty owed in respect of things done in the exercise of an exclusively public function is not a ‘relevant duty of care’ unless it falls within”,
those duties of occupiers or employers. What does that mean? I do not for a moment suggest that it means that some of the cases of deaths in custody that noble Lords have in mind would be covered, but others would be. For example, the offence will apply where deaths have arisen as a result of failure to have adequate fire precautions or to maintain cells in adequate conditions, of poor hygiene in workshops, or of failures in medical treatment. Those do not fall outside the Bill. I do not want to pretend that the issues in relation to restraint referred to by the noble Lord, Lord Hunt, and decisions about cell-sharing, police custody or arrest techniques or other areas that flow from public policy decisions would be included.
My second point—
My Lords, I hesitate to interrupt my noble and learned friend when he is moving on to his next point, but am I to understand therefore that his position is that, for matters to do with a systemic failure, the police are above the law? I have grave doubts about whether it is in the interests of the police service as a whole for there to be that appearance of being above the law—not when it is about the failure of an individual, but where there is a failure of the systems which have been instituted by that organisation.
My Lords, I am certainly not saying that anybody is above the law. I am describing the effect of the Bill in terms of criminal corporate responsibility—in what circumstances the Bill will impose it and in what circumstances it will not.
My second point concerns the other mechanisms that are available. They have been described in some detail. They exist in a way for public bodies but not private bodies. I will not go through them in detail again because they have been raised on previous occasions; certainly some are important. The Government have made strides towards strengthening the protection of prisoners, including strengthened external investigation of prisons through the Prisons and Probation Ombudsman, the creation of a forum for the sharing of lessons throughout Whitehall, and the establishment of successive suicide prevention programmes. The Chief Inspector of Prisons recognised the improvement of safety in custody in recent reports and I note, as she did, the continuing fall in the number of self-inflicted deaths in prisons, which must reflect the considerable efforts that have been made. All deaths in custody are subject to independent investigation by the Prisons and Probation Ombudsman and, so far as the police are concerned, by the Independent Police Complaints Commission, as the noble Lord, Lord Imbert, said.
My third point relates to the ECHR. I always respect the views of the Joint Committee—indeed, I was one of its inaugural members—but it does not necessarily have invincibility in its views. The key point to draw attention to in relation to the Joint Committee’s report is what it seeks to draw from a Turkish case, Öneryildiz v Turkey. I think that that was the case that the noble Lord, Lord Judd, had in mind. That case establishes for the first time that there may be circumstances in which the existence of criminal responsibility may be necessary to meet the Article 2 requirement. In my reading of that case, it does not say that it has to extend to an offence of corporate responsibility. I accept that we may need to have the availability of criminal responsibility for individuals, but to go beyond that remains, in the Government’s view, not shown in accordance with the legislation.
I have one other observation on the Joint Committee’s report. It recognised that the,
“courts should only have a very limited role in decisions about the allocation of public resources”.
The report went on to say that,
“this reason cannot justify a sweeping exclusion from the new criminal offence of any decision taken by a public body in the performance of a public function”.
That is not what the Bill said, because the Bill keeps intact these responsibilities as an occupier or as an employer.
I come finally to the issue of principle. Is there a justification for keeping public policy decisions separate from the jury at the Old Bailey? The view that the Government have taken is that such public policy decisions are ultimately not really appropriate for a criminal court to determine. They are appropriate for Parliament to consider and, from time to time, for public inquiries to consider. A view can appropriately be taken by the electorate, but decisions about whether resources should be applied to education, health or prisons are difficult policy decisions which, in the Government’s view, should not be determined by the courts. That is ultimately the point of principle which lies behind this amendment. Would amending the Bill in this way improve safety in prisons and in custody? Views differ on that issue. The noble Lord, Lord Imbert points to—
My Lords, I will give way to the noble Viscount after I have made this point. The noble Lord, Lord Imbert, points to the risk of people becoming risk-averse and applying resources in a particular way rather than other ways. Others take a different view.
My Lords, I should like to have another try at getting an answer to the question put a moment ago about systemic failure. The noble Lord, Lord Hunt, talked about improper restraint that is suitable for adults being used on young persons. As I understand it, if the Prison Service or the police service has given clear instructions about when it is appropriate to use such restraint and a warder or prison officer wilfully disregards those, he can and will be prosecuted for manslaughter. When the Prison Service or a police force has incompetently and wilfully failed to issue that guidance to its staff, why should those individuals and the body in question be immune from prosecution?
My Lords, in lifting immunity for the first time in certain circumstances to submit the Crown to criminal responsibility in these areas, the Government have sought to keep on one side one category of decision-making, which is exclusively in the public policy area, while recognising a government responsibility in the rest. I entirely understand that one wonders whether certain examples should be on one side rather than the other, but that is the ring-fence which this Bill seeks to achieve.
My Lords, I can sum up my question in few words. Although the noble and learned Lord rejects liability in the cases that have been put by the noble Viscount, if a brick falls off the prison which has been grossly negligently maintained, he says that there is liability under this Bill. It is such an extraordinary line that I hope that the noble and learned Lord will be prepared to take the amendments away and think about them.
My Lords, I do not think that option is being offered to me although I thank the noble Lord for his helpful intervention.
As I sought to draw to noble Lords’ attention in my first point, the issue is the duty owed by a public authority in respect of a decision on matters of public policy. Whether you allow a brick to fall off a prison is not a matter of public policy. I believe that the noble and learned Lord, Lord Lyell of Markyate, made a not dissimilar point.
It is plain that your Lordships wish to express the opinion of the House. That is entirely within your Lordships’ rights. We shall see what the result is. I thank the noble Lord, Lord Clinton-Davis, for inviting me to consider the matter further but it is not within my mandate.
My Lords, I thank all those who spoke about these amendments so powerfully and wisely. I am particularly glad that my noble and learned friend Lord Boyd and my noble friend Lord Imbert raised an opposite view to what has been expressed. Up till now that view has not been expressed at either Second Reading or in Committee. It is only right that it should be expressed. Anyone reading this debate is entitled to expect the broadest cover of all the many issues raised.
I do not wish to single out anyone in particular because I have been enormously impressed by all the speeches, but it would be improper of me not to thank the noble Lord, Lord Hunt, not only for his powerful remarks but for all that he has done to ensure that various briefings were provided in addition to those provided by the Government. It is a huge help to people who do not understand many of these issues to have them explained with such wisdom, clarity and good humour.
As noble Lords said, this is rightly an issue of principle and of great seriousness. As the noble Lord, Lord Dholakia, pointed out, none of us has suggested that every death in custody should automatically be followed by a charge under this Bill. Charges should follow gross breaches of management and the duty of care.
I was very grateful to the noble and learned Lord the Attorney-General for the way in which he covered various points, but I was disappointed that finally he returned to whether this amounted to questioning policy. This is not about policy; it is about good management. Good management does not depend on resources but rather on the whole ethos, structure and direction of management. That is what this is all about. That is what is contained in the Bill. Therefore, as the noble and learned Lord predicted, I wish to test the opinion of the House.
4: Clause 2 , page 2, line 34, at end insert—
“(e) a duty owed to members of the public who may be affected by the way in which the persons referred to in paragraph (a) perform their duties;”
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 9, 10, 12 and 20. The amendments extend the duty of care owed by public authorities, thereby ensuring that the offence would apply in a situation where the actions of a public body, even in the carrying-out of exclusively public functions, had been so grossly negligent as to cause the death of a member of the public.
I do not think that it is necessary for me to repeat the arguments that I made in Committee to the Minister, the noble Lord, Lord Bassam. The merit and the virtue in the amendments are clear. As JUSTICE said so clearly in its briefing:
“To create such an exception”—
that is the exception exempting public bodies and public functions from the offence—
“is to state that in those circumstances gross negligence causing death on the part of a corporation is lawful under the criminal law”.
The exemption of public bodies could amount to a breach of Article 2 of the European Convention on Human Rights and Article 13 concerning the obligation to provide an adequate and effective remedy in respect of breaches of the right to life, to which my noble friend Lord Hunt referred in the debate on Amendment No. 3.
I made it clear in Committee that I was deeply unsatisfied with the response that I got from the noble Lord, Lord Bassam, and his defence of the Government’s position. His primary point seemed to be that the Government had already made great inroads in rolling back Crown immunity, but then he rather hoisted himself with his own petard by saying that,
“as few of these organisations have Crown immunity as the law stands, they are already liable to … gross negligence manslaughter”.
The current exclusions from Crown immunity do not so much constitute a comprehensive provision for the application of the offence to public bodies, as the Minister claimed in Committee, as simply restate in the Bill what should already exist in law.
I am disappointed that the Government have not taken these amendments on board, even though they have recognised that establishing a duty of care towards the public is in the public interest. Again, I quote what the noble Lord said in Committee:
“The Government recognise the strong public interest in ensuring that government departments and other Crown bodies are clearly and openly accountable for management failings on their part”.—[Official Report, 11/1/07; cols. GC 120-21.]
The simple fact is that public authorities should set an example and be prepared to be accountable for that example. Where a public authority cannot even act within the wide parameters set out by the Bill, where its actions fall far beneath what can be expected of it, it is right that the families of victims of its negligence should be entitled to prosecute those responsible. I beg to move.
My Lords, first, I want to clarify how the Bill will operate. Having looked at what has been said before on this amendment and, to some extent, having listened to what the noble Lord has just said, I think that there may be a misunderstanding. As the Bill stands, the offence is not limited, in its application to public authorities, to employer and occupier duties. It is important to emphasise that the relevant exclusion here is Clause 3(2), which states:
“Any duty of care owed in respect of things done in the exercise of an exclusively public function”,
unless it is an employer or occupier liability issue.
What does “exclusively public function” mean? It does not mean whenever a public body is operating. That is not how the term is defined. It is defined in the Bill as,
“a function that falls within the prerogative of the Crown or is … exercisable only with authority conferred”,
by that prerogative or by or under a statutory provision. That certainly does not mean a public authority acting just with statutory powers; it refers to things that can be exercised only with statutory powers.
Let us take education as an example. Education is not an exclusively public function, even though it is carried out by many public authorities. Healthcare is not an exclusively public function, although it is carried out by many public authorities. Those things can be carried out by private bodies without statutory backing or in the exercise of the prerogative, so the exclusion would not apply in those cases. Members of the public who, sadly, suffer as a result of a public body carrying on that sort of activity would not be excluded from the protection of the Bill. The exemption is limited to cases where it is an exclusively public function. We discussed one such function in relation to the previous amendment: the holding of people in custody can be done only by virtue of statutory authority; it cannot be done otherwise. Carrying on military action can be carried out only either under the prerogative or by statutory authority. Those are the limits.
When public bodies carry on general commercial activities, for example, or activities such as healthcare or education, then, so long as a duty of care exists—I hope that no one is talking about trying to extend the existing duty of care as it stands in the law of negligence—the Bill as it stands will cover that. That is a very important difference compared with how the Bill has been seen. I give way to the noble and learned Lord.
My Lords, I am most grateful to the noble and learned Lord. I think that we are looking at the interrelationship between paragraphs (a), (b) and (c) of Clause 2(1) and Clause 3(2). Is the noble and learned Lord telling the House that, if a public authority is doing something in connection with the supply by the organisation of goods or services, the carrying on of construction or maintenance, the organisation of any activity on a commercial basis, or the keeping or organisation of any plant, vehicle or other thing, it is liable in respect of all those matters?
My Lords, yes it is. Clause 3(2) would exclude it only if what it was doing was done in the exercise of an exclusively public function, defined as,
“a function that falls within the prerogative of the Crown or is … exercisable only with authority conferred … by the exercise of that prerogative, or … by or under a statutory provision”.
To be entirely accurate—it is important to be so—the exclusion is also in Clause 3(1), which relates to a,
“duty of care owed … in respect of a decision as to matters of public policy”.
But the provision of goods or services, construction or maintenance operations, the carrying on of any other activity on a commercial basis, or the keeping of plant or vehicles and so on, or is not carried out in respect of a decision as to matters of public policy. So I believe—I am fortified by nods from the Box—that I am right in having answered the noble and learned Lord’s question in the way that I have.
My Lords, I believe that, in any event, soldiers would be employees covered by Clause 2(1)(a). I am not sure whether there is anything about the relationship of soldiers to the Army—we have one or two Members of the House who would have been able to tell us. Subject to that point, duties to employees would be covered. Even if it is the exercise of an exclusively public function, because it falls within Clause 2(1)(a) or (b), it would be covered.
My Lords, the noble and learned Lord did not convince me and I suspect he did not convince himself. I imagine that at the top of the notes, which have been prepared to assist him in taking the Bill through, there is that little word “resist” which we all remember. That is what he wants to do. In some of what he said I had the impression that if that were the case, there is no reason why he could not accept my amendment. I do not think he has answered the points we have made or the points made by my noble and learned friend Lord Lyell, to whom I am very grateful for his intervention. The best thing is to test the opinion of the House.
My Lords, I was part way through what I was saying when I answered the questions from the noble and learned Lord, Lord Lyell. I thought that the noble Lord, Lord Henley, was speaking to that point and he has assumed that I had completed what I wanted to say.
I am most certainly resisting the amendment. I was trying to point out that the basis on which the noble Lord was putting his amendment is fallacious. It is simply wrong because it does not take account of what the Bill says. Nor does it take account of the fact that what he seems to be proposing is that the Bill should extend the duties to members of the public that already exist in the law of negligence. Notably missing from what the noble Lord said was a single example of a case where he believes that the duty should be extended—where he believes that the Bill should be extended—which is not covered by the Bill at the moment. With great respect to the noble Lord, surely it is important to put that forward. The noble and learned Lord asked me about soldiers on Salisbury Plain. I have answered him and said that that is covered. What example can the noble Lord, Lord Henley, put forward that is not covered?
My Lords, I hope I am not out of order but I do not believe the noble and learned Lord answered me. He parried my thrust by saying that the soldiers would be covered because they are employees or perhaps because they lived in barracks and were covered by occupiers’ liability. Suppose a member of the public is killed as a result of some gross negligence in the supply of goods or the carrying on of any construction or any other activity; the noble and learned Lord was using as part of his argument the fact that the Bill is not as restricted as we thought, and that somehow, under paragraph (c)(i), (ii), (iii) and (iv), the Government are accepting much more liability than most of us thought. He has asked for some examples from the Opposition, but can he give some examples of the kind of circumstances in which public authorities are liable under paragraph (c)(i), (ii), (iii) and (iv) but are not under paragraphs (a) or (b)?
My Lords, I do not like to intervene in this way, but this is Report stage. Members should make only minor points of elucidation when asking a Minister a question. The noble and learned Lord the Attorney-General has been extremely generous in his responses. I ask the House to respect the usual conventions.
My Lords, I have every intention of respecting the usual conventions. I had thought that the noble and learned Lord had sat down, as he had. I was brought up to believe that once the Minister has spoken, it is time for the mover of the amendment to say a few words and tell the House what he intends to do. I have done that and I do it yet again. I wish to test the opinion of the House.
5: Clause 2, page 3, line 18, at end insert—
““custody” includes being held in prison, secure mental healthcare facilities, secure children’s homes, secure training centres, immigration removal centres, court cells and police cells, and being subject to supervision by court, prisoner and detainee escort services;”
On Question, amendment agreed to.
6: Clause 2, page 3, leave out lines 32 to 34
On Question, amendment agreed to.
7: After Clause 2, insert the following new Clause—
“Offence by member of senior management
(1) A member of senior management, responsible under section 1(3), shall be guilty of an offence if by his acts or omissions which amount to a gross breach of his duty, he contributes to a breach under section 1.
(2) A person guilty of an offence under this section is liable on conviction to—
(a) imprisonment for a term deemed appropriate by the court, or (b) a fine not exceeding the statutory maximum, or to both.”
The noble Baroness said: My Lords, I declare my interest as a former trade union official; my union is Amicus and I am a former member of the TUC general council.
As I explained in Grand Committee, the unions support the Bill and want to see it on the statute book but do not think that it goes far enough. Unless there are amendments, they do not think that it will be effective in improving health and safety at work. The briefing paper I received from the TUC makes the strong point that organisations do not kill people, but the action or inaction of people within them does. Directors and senior managers should be held to account for their actions or omissions. Nothing in the Bill would lead to the people making a decision resulting in a death being held liable. Both my union and the TUC believe that unless the Bill is amended to provide for individual responsibility and appropriate penalties there will be no changes in company culture to ensure that these accidents do not take place in future.
We had a good debate on this in Grand Committee, but I and my noble friends who supported me failed to get the Government to agree with us. We therefore said we would reconsider and have now done so, and come back with a slightly different wording based on the same concept. Since Grand Committee, however, it has become clear that the issue arouses a great deal of concern. My own union, Amicus, in its current journal, has expressed its disappointment that there has so far been a failure to allow for the imprisonment or heavy fines of individuals and companies found guilty of gross negligence leading to the death of employees. The article includes a photo of the gravestone of a union member said to have died tragically, a victim of corporate killing. The general secretary says that Amicus will continue to campaign for a change in legislation.
In the week following Grand Committee, an article appeared in the Times law section about the Baker report into the BP fire in Texas, in which 15 people were killed in 2005. It is headed:
“Will managers ever accept blame?”,
“At the heart of the problem…is that our society (and we probably mean Anglo-Saxon societies here) continues to shy away from making individuals accountable for corporate failure”.
The article quotes a lawyer, who says:
“The Enron case illustrates that if a senior executive is guilty of fraud then he faces a long term of imprisonment. But if his or her conduct leads to death then there is nothing more than a company fine”.
That was my point during the argument for my amendment in Grand Committee. The article further says:
“Many hopes had been invested in the creation of a crime of corporate manslaughter”,
but that the Bill,
“still does nothing much more than impose fines on the business”.
Another comment quoted in the article from a lawyer who has been actively involved in the area is that:
“Personal liability would focus the minds of directors and ensure that they placed the health and safety of workers and the public at the very top of their … agendas. That way, we might see a reduction in tragic but avoidable accidents”.
The article concludes,
“until that happens don’t hold out hopes for real change too soon”,
yet the Bill presents an opportunity for real change.
I urge the Minister to reconsider. The issue will not go away. Campaigns will continue; families who have lost members are already campaigning for changes in the law. We cannot wait until another disastrous industrial accident increases public pressure, as it surely will. We have the opportunity, with this Bill, to do something now. I urge my noble friend to take it. I beg to move.
My Lords, I support my noble friend on this amendment because it goes to the heart of the Bill. I must declare my interest in the union movement: I am a member of Amicus and the ex-president of two unions that are now part of Amicus, the ASTMS and MSF. In welcoming the Bill, we feel that it does not go far enough because as long as no one in a company is responsible, this problem will continue. My noble friend referred to the Baker report on the deaths that occurred in BP’s plant in the United States. BP’s aspirations include no accidents and no harm to people but, among many other things, the Baker report stated that:
“BP does not have a designated high-ranking leader for process safety dedicated to its refining business”.
That makes the case we are making very clear. Unless somebody is responsible and will have to face up to the consequences, these accidents will continue. Priority must be given to health and safety at high level, at boardroom level, and someone must be responsible for it. I believe that, my union believes that and, as my noble friend said, so do all those whose husbands, wives or other relatives have been subject to these disasters in large companies. I want to emphasise that the problem is with large companies. With small companies, it is easy to prove that somebody is liable. I hope that the amendment requiring companies to accept that somebody must be responsible at boardroom level will be accepted.
My Lords, I hope that the Government will not accept this amendment. We on these Benches cannot offer it any support. As we have made clear on a number of occasions, we support the general principle behind the Bill, which is the establishment of a corporate manslaughter offence, but to take it further and add layers to the existing offence of manslaughter would undermine the central principle of the Bill. For that reason, we hope that the Government will reject this amendment.
My Lords, I am grateful to the noble Baroness, Lady Turner, and the noble Lord, Lord Hoyle, for their enthusiasm for this amendment, even if I do not entirely agree with their thinking and the logic behind it. The amendment raises an issue that goes to the heart of the debate on the Bill. The question of whether the new offence should impose liability on individuals as well as on corporate bodies has been central in debates on the Bill. Noble Lords will know well that the Government’s position is that the offence should focus on corporate not individual liability, which means creating a new offence applicable to organisations and excluding secondary liability for the new offence on the part of individuals.
The case for making provision in the Bill for individual liability is fundamentally based on two arguments: first, that an individual must be held to account when there has been a death; and, secondly, that individual liability is needed to drive home the responsibility of senior managers, a point forcefully made by the noble Lord, Lord Hoyle. These are weighty arguments but, in summary, the Government do not believe that individual criminal liability can always be established, and consider that the question of director responsibility goes wider than the imposition of criminal offences. Therefore, I am not able to offer much comfort to the noble Baroness, Lady Turner, or the noble Lord, Lord Hoyle. However, I owe it to them to set out our thinking in more detail.
The genesis of the Bill lies in the difficulty the law has in establishing an effective form of accountability for manslaughter for corporate bodies. The controlling mind test in the existing law has worked in a small number of prosecutions of small companies, but it has not proved to be a successful basis for prosecuting more complex organisations where failures in the chain of management can rarely be laid at the door of specific individuals.
That is the problem the Bill seeks to address, and is why the Bill shifts the focus away from individuals and bases liability on gross failures in the management of systems and processes within an organisation. In the future, juries will be able to consider the overall picture of how an organisation’s activities were managed or organised, instead of having to focus on the actions of a single individual. That offers scope for a wider and more effective basis for holding organisations to account for failures in the way they were managed.
Having recognised that complex organisations cannot be convicted solely on the basis of the acts and omissions of senior managers, we think it is problematic to try to turn that situation on its head and say that senior managers ought to be identified to take responsibility for the organisational failure. The failure of the controlling mind test has shown that it does not reflect the reality of corporate decision-making and, as the Health and Safety Executive has attested, the majority of work-related deaths are due to systemic management failures, not to the actions of individuals.
In the case of the Hatfield crash, when sentencing Network Rail and Balfour Beatty for breaches of health and safety legislation, the judge felt moved to remark that:
“In the case of Balfour Beatty, I regard their failure as lying at the top of the scale. I have spent over 30 years of my professional life involved in cases concerning the duty of care, including many of the major transportation and other disasters of the late 1980s and the 1990s. I remind myself to guard against overreaction to this incident and I believe I have done so. But I have to say that I regard the failures of Balfour Beatty, set out above, as the worst example of sustained, industrial negligence in a high-risk industry I have seen”.
In the same circumstances, proceedings against individuals for manslaughter offences and under health and safety law resulted in dismissals by the judge or acquittals from the jury. That underlines the need to move to a new basis for judging corporate negligence that is not linked to individual criminal liability.
It also raises a significant question about what the offence proposed by the new amendment would add. It would impose liability where a senior manager contributes to the offence of corporate manslaughter by gross negligence. If it is indeed the case that a senior manager has acted grossly negligently and caused death, he can already be prosecuted for manslaughter. Lower down the scale, health and safety law provides sanctions against individuals whose conduct has contributed to health and safety failures.
My Lords, I was a commissioner at the time of the “Herald of Free Enterprise” disaster. As I understand it—and I will be corrected if I am wrong—there was no satisfactory inquiry into that episode. Would my noble friend therefore argue that the families of victims of that episode should not be compensated? Is it not right that there should be a criminal prosecution against the people who perpetrated that disaster?
My Lords, the issue of compensation is wider than the subject of the Bill. I do not think that that is the point. Whether the “Herald of Free Enterprise” case would have led to criminal prosecutions is a matter for some conjecture, although one should abstract one’s personal view from these issues.
What I was trying to say to my noble friends was that, on the lower order of issues relating to health and safety, the law provides for sanctions against individuals whose conduct has contributed to health and safety failures. The proposed new offence, with a test of gross negligence, would not add a significant new liability or deterrence to that already provided by the law.
The second argument advanced in favour of individual liability is the desire to see responsibilities taken seriously at a senior level. That is part of a wider debate about director-level engagement in health and safety management.
We recognise the importance of director leadership. Over the past 12 months, the Health and Safety Commission has examined in depth with its consultees, its stakeholders and others the issue of statutory duties on directors for health and safety management. It has not advised in favour of legislation, but intends to return to the matter when the implications of other reforms are clear—such as the effect of the Bill, recent company legislation and the action following Professor Macrory’s review of regulatory enforcement.
In the interim, the commission has asked the Health and Safety Executive to press ahead with producing new guidance on director responsibility, with the Institute of Directors playing a leading role, and with input from other business, the trades unions in particular, professional bodies, the Government and other stakeholders.
Just to remind ourselves: this Bill is designed to tackle a particular problem with corporate liability. We want to ensure that organisations will no longer be able to escape liability for their action because the law makes this contingent on individual guilt. Where individuals are personally responsible for a death, the law sets out a framework for holding them to account. We consider that it is the link between individual and corporate guilt that is inappropriate; and the primary purpose of the Bill is to address that problem.
The noble Lord, Lord Clinton-Davis, made a point about the “Herald of Free Enterprise”. I am reminded that there were criminal prosecutions against individuals and that there was a public inquiry. He is entirely within his rights to question the findings of that inquiry and to raise the points he did. I put that on the public record for accuracy.
My Lords, I thank my noble friend for that very comprehensive response to the amendment, but he repeated a great deal of what he had already told us in Grand Committee. This is a different sort of Bill; it does not provide for individual liability, and there is no intention by the Government that it should do so. I stress, as I have stressed before, that this will not be acceptable to many people—and I do not just mean the unions. This is a new offence and an entirely new Bill. It is new legislation and it gives an opportunity, as I said in my opening remarks, to deal with the issue of individual liability if the Government wish to do so.
There is public concern about this, and cases will arise where families will campaign. They have already begun to do so. The families of past victims have formed an organisation that has started to issue briefing papers and to campaign for a change in the legislation along the lines we have suggested.
As I said in my opening remarks, the unions will not be satisfied and will continue—although they accept the new legislation—to campaign for its improvement, as they see it, and for the introduction of an offence involving individual liability. They believe very strongly that without that provision there will not be a change in the culture of a number of companies. Indeed, as the article in the Times stressed, if you introduce the idea of individual responsibility it will change the culture of companies in the direction of better health and safety management. That is really what we are all about and want to achieve.
This issue will not go away; it will recur again and again. Let us hope that we do not have to wait for another accident with a death for more public pressure and then perhaps a further piece of legislation. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8: After Clause 2 , insert the following new Clause—
“Aiding and abetting etc
A member of senior management who is found to have aided, abetted, counselled or procured the commission of an offence of corporate manslaughter or corporate homicide shall be liable to imprisonment for a period not exceeding seven years.”
The noble Baroness said: My Lords, Amendment No. 8 is about secondary liability. It seeks to establish secondary liability for those who connive, conspire or collude in an act which results in death. This matter was recommended by the Joint Select Committee and it was discussed in Grand Committee. I am still unclear why the Government felt unable to accept the recommendation of the Select Committee.
It was suggested during the course of the debate that individual directors could be prosecuted for the common law offence of gross negligence leading to manslaughter under the Health and Safety at Work etc. Act. It then transpired that during the past 10 years there had been only seven successful prosecutions and that all of them occurred in small companies.
I therefore return to the issue on Report. There seemed to be considerable support for this in Committee. It is widely believed that a provision of this kind in legislation would have a significant deterrent effect. I therefore hope that since Grand Committee the Minister has been able to consider the powerful arguments made in favour of this by a number of noble Lords, in particular my noble friend Lord Wedderburn and the noble and learned Lord, Lord Lloyd, who declared that he could see,
“no reason why secondary liability should be excluded”.—[Official Report, 15/01/07; col. GC 211.]
Of course, in order for this to be effective, we cannot have Clause 16 in the Bill and we have therefore tabled an amendment to leave it out. I beg to move.
My Lords, it is beyond reason to imagine that the board could not have considered a rapid turnaround. The “Herald of Free Enterprise” and similar ships would have followed the instructions of the board to the letter. That instruction undoubtedly was that the quicker the turnaround the better because it meant more profits; it meant a whole lot of things that the board would have thought were very desirable. That policy was undoubtedly against the public interest. Therefore, I conclude that senior management must have considered that policy. The crew would have followed those instructions. If they had not, they would have been fired. So, I ask my noble friend to consider with favour what this amendment seeks to address.
It may be, of course, that there are issues which the amendment fails to address, but I shall not go into that. However it is worded, the impression given by my noble friend is absolutely right. There can be no doubt that at the highest possible level this issue was considered. I therefore believe that my noble friend the Minister owes the House the duty of addressing these important issues.
My Lords, I support my noble friend’s amendment, to which has been added my name and the name of the noble Lord, Lord Wedderburn. There was a great deal of support for the amendment in Committee. It was felt that the only way to bring the seriousness of the matter home to senior management was that if a death occurred, anyone found guilty of corporate manslaughter should be liable to a period of imprisonment. This seemed to strike a chord with people across the Committee. I know my noble friend the Minister has had time to reflect on this and I hope the Government will support the amendment.
My Lords, we have all missed the presence of the noble Baroness, Lady Scotland, throughout this process. At the outset of the debate in Grand Committee, I passed to her a copy of the test cases which I wished to use as examples of how the Bill might apply in practice. She honoured me with a reply, for which I am deeply grateful, in which she made specific reference to one of those cases. Her reply is worth reading because it underlines the confusions that even the noble Baroness herself can see in this, which could lead in time to the Bill being regarded as an unjust arrangement in the eyes of the public.
In her reply, the noble Baroness referred to my example F, the case I postulated of a racecourse with a fence which is known to be particularly dangerous if horses jump into a setting sun and, therefore, as a regular practice it is “dolled off”. But on one occasion, it is not dolled off and the fatality of a jockey occurs. In regard to example F, the noble Baroness said that,
“the Clerk of the Course may owe a duty of care to jockeys, but his personal duty of care could not give rise to a corporate manslaughter prosecution—the duty of care must be owed by an organisation to the deceased. Similarly, the duties of the board”—
of the racecourse—
“to the jockeys cannot give rise to a corporate manslaughter charge, but the duties owed by the organisation which they run could. In practice, there may be an overlap between personal duties owed and those owed by the organisation. Individual duties of care may give rise to questions of manslaughter under the current law of gross negligence manslaughter under which individuals may be liable, whereas organisational duties may give rise to questions of corporate manslaughter”.
Given the state of confusion which exists even in the mind of the noble Baroness, Lady Scotland, how can the wider public possibly perceive the justice of pinning imprisonment on anyone? There are at least five candidates in that particular case—the man who forgot to put the dolling around the fence; the groundsman; the clerk of the course; the chairman or chief executive of the racecourse; and, beyond that, what used to be the Jockey Club but is now the British Horseracing Authority. Some of those might look juicy targets to go for but, on the other hand, to go for any of them would look completely ridiculous in the eyes of the public.
My Lords, my name appears on this amendment and Amendment No. 47, with which it is grouped. Amendment No. 47 seeks to leave out Clause 16 and I hope your Lordships will pay close attention to it. It is incumbent on me, therefore, to explain, as I did to the noble Baroness, Lady Turner, why I can support Amendments Nos. 8 and 47 and not Amendment No. 7.
It depends on a fundamental issue relating to the criminal law. What one might call the DNA of criminal liability is a curious and now rather complex double helix, the bond between primary liability and secondary liability. One leading textbook, quoting a case from 1611, states:
“It has always been sufficient to prove that the defendant was either the principal or the secondary party”.
The secondary party in the common case is one who is found liable if the evidence proves that he committed the offence primarily or, secondly, that he aided, abetted, counselled or procured it. That is still the ordinary rule of law. Where there is an offence, you expect liability in the primary case to be on the person who committed it, and the secondary liability to be on someone who aids and abets. But not in this Bill; Clause 16 expunges all notion of secondary liability from the Bill’s grasp. Anyone who aids, abets, counsels or procures the offence established by Clause 1 has a complete immunity under Clause 16. It has never yet been explained precisely why this has to be so.
Perhaps I may deal with Amendment No. 8 and then turn to what the Government have said. Amendment No. 8 takes the common-sense line that mostly the people who will be said to have aided or abetted, or in some way assisted in the gross negligence that has led to a death, will be in senior management. It might be said that the amendment should be couched in terms of “anyone” who aids or abets but, as a matter of common sense, I have found it possible to put my name to it as it stands.
The amendment raises the issue of corporate homicide in Scotland. In Committee, we learnt a great deal from noble and learned Lords from Scotland and that the test of corporate manslaughter is quite different north of the Border than it is here. Having raised the point, I suggest that it should be debated when we reach Amendment No. 43, tabled by the noble Earl, Lord Mar and Kellie, and I leave it there for the moment.
Returning to the main issue, why should someone who aids and abets this new offence be given a gigantic, special, separate immunity? As a matter of common sense, again, it has been complained by some people that executives in companies which have been involved in rather large accidents in the past have gone to such lengths by the mantra of “cut costs” that they have aided and abetted the gross negligence of those who left aside the safe system and caused deaths. BP is in the middle of such a controversy. It had a disaster in Grangemouth in 1987, in Falkirk in 2002, and now of course there is the extraordinary explosion at its plant in Texas.
I take it as common ground that there can be cases where, under the ordinary rule of law, someone could be liable for aiding or abetting this offence. It is not a burden upon me to establish precisely what the circumstances are. As I understand it, it is for me to agree with the case the Government put in Grand Committee that such liability on a set of facts that one might agree upon is possible. If it is possible, why is it excluded?
Aiding and abetting can, in some circumstances, be constituted by an omission. In 1940, the Lord Chief Justice Lord Hewart faced the case of Rubie, an experienced driver who just sat in the car and did nothing when, by the side of him, a learner driver drove recklessly and caused a terrible accident. The Lord Chief Justice said in that case that,
“it was open to the justices to find, as they did, that, by his passive conduct in circumstances in which what was required was something which was not passive, but active, he aided and abetted the offence”.
It does not take great steps of the imagination to translate that test against some industrial circumstances of a very large enterprise.
If I may, to be fair I shall cite what has been said by the Government. The noble and learned Lord, Lord Davidson of Glen Cova, said in Committee:
“we do not think that providing secondary liability for the new offence would cover a level of criminal behaviour that is distinct from the culpability required by a conviction for manslaughter”.
Later, he said:
“We do not think that by allowing secondary liability for the new offence we would achieve any significant extension of individual liability, but would create a new level of complexity”.—(Official Report, 15/1/07; GC 214.)
Complexity is no defence to giving a wide immunity of this sort. Nor, indeed, is it a question of achieving a new level of liability. It is a question of reaching a second defendant.
The amendment accepts that criminal primary liability is the object and aim of the Bill. What it and Amendment No. 47 do not accept is that secondary liability—the normal rule of law about secondary liability—should be excluded from this field forever. The statements of the noble and learned Lord the Advocate-General for Scotland in Committee are true as far as they go, but they are not to the point of why there should not be secondary liability for anyone who aids and abets.
Finally, I have made my case as quickly as I can. Of course it is a legal case on the point of simple legal analysis: that secondary liability is the normal rule of law; that the Bill excludes it; and that the Government take away the amendment and think about it, which is what I am asking for tonight. I am asking that the Government think again about the circumstances raised by Amendment No. 8 and come back at Third Reading having rethought the idea of secondary liability in general. However many cases there may be, however few they are, if there were a case of aiding and abetting the offence under the Bill, there should be criminal liability under the normal rule of law.
The noble and learned Lord said earlier something to the effect that we want everyone to be covered by the law. I want everyone to be covered by secondary as well as primary liability, which is why I support the amendments, not the previous ones.
My Lords, I hesitate to intervene in this debate, as I have been unable to take part since Second Reading. I redeclare my interests as a member and sometime adviser of the GMB and as chair of the National Consumer Council.
I follow the noble Lord, Lord Wedderburn, in particular, on this because I strongly support the amendments: in particular, Amendment No. 47. I understood the Minister’s argument about the noble Baroness's previous amendment. I do not necessarily entirely agree with it, but I understand that the Bill is about creating a new offence of corporate manslaughter and that individual primary liability should not be covered in the Bill. It is a thin Bill with a clear purpose. I understand that.
However, in this case, having created a new offence, we are now, via Clause 16, excluding any liability for aiding, abetting or conspiring to commit that offence. As my noble friend—or my noble ex-friend—Lord Wedderburn said, that is surely a novel principle. Secondary liability automatically arises in such cases and the clause is pretty novel in excluding in all conceivable circumstances a secondary liability for contributing to a primary liability. In response to the noble Lord, Lord James of Blackheath, that will appear extremely anomalous to the public. Their confusion is in the exact opposite direction from that which he claims. If someone has made a major contribution to a prima facie corporate manslaughter case, the public will not understand that no prosecution is possible. Therefore, I support Amendment No. 47 in particular.
My Lords, earlier, we considered whether there should be a new offence that would apply to individuals to make them liable if, through gross negligence, they contributed to the new offence of corporate manslaughter. Now we consider the more novel issue of secondary liability. The question posed by the amendment is in similar territory to the position of individuals under the Bill, but it addresses it in terms of secondary liability for the corporate offence, rather than through a distinct offence.
Much of what I said in response to the earlier debate is equally applicable in this debate. The central focus of the Bill is to find a new and more effective way to attach liability to a corporate body for the offence of manslaughter. Relying on the identification principle and a requirement of individual guilt does not adequately address the question of corporate mismanagement that should underpin corporate liability in this area.
Clause 16, to which noble Lords have referred, and which Amendment No. 47 would remove, goes a step beyond simply creating a new corporate offence and removes secondary liability for that offence on the part of individuals. That is a departure from the general principle of secondary liability in the criminal law, but it is done with good reason. The Law Commission’s report in 1996 stated that the new offence was intended to stand in parallel with homicide offences relating to individuals, representing a particular means for attaching an offence of manslaughter to an organisation. It was not intended to provide, through the test of secondary liability, a new set of circumstances where individuals would be subject to criminal liability. Our thinking on the Bill works with the Law Commission’s original thinking set out in its report more than 10 years ago.
If there are questions of gross negligence on the part of an individual, we think that proceeding should be taken under existing law, not as a matter of secondary participation. I shall repeat some of the arguments that we adduced on Report. They may not necessarily find favour with my colleagues.
We are not satisfied that providing for secondary liability in respect of the new offence would deal with a distinct level of culpability not already covered by current law. To show that an individual was secondarily liable for an offence, it is generally necessary to show that the accessory had a similar state of mind as the main offender, or at least knew or intended that the offence would be committed. In the context of corporate manslaughter, that would mean that an individual would need to be aware of the picture of failure in the organisation, at least contemplate it being grossly negligent and act in a way that supported or sought to bring that about.
In those circumstances, it is likely that an individual charge of manslaughter would be possible. If those circumstances were to be present, it is appropriate that the individual should be prosecuted for manslaughter in his or her own right, not for a secondary offence.
My Lords, this is Report. We have been tolerant, but perhaps the noble Lord will let me develop my argument.
In particular, that would put the individual at risk of maximum sentence of life, as opposed to seven years, as under the amendments. On the other hand, although posing the question of secondary liability would not extend individual liability significantly, it would add an extra layer of complexity to the investigation and prosecution of the new offence. As well as assessing individual liability to existing criminal offences such as manslaughter and under health and safety law, the police and prosecution would need to explore any potential differences between these offences and secondary liability for corporate manslaughter. That would complicate the issues brought to trial, but would not lead to any significant increase in the chance of individuals being successfully prosecuted. That is key.
To conclude, the position of individuals is obviously an important issue for the Bill. The new offence sets out to address the particular mischief in the law that provides for a narrow basis for corporate liability for manslaughter. In doing so, it is not our intention to try to redefine when individuals should be guilty of offences. That would be the effect of allowing secondary liability for the new corporate offence. Excluding secondary liability is novel—that point has been well made—but it reflects the peculiarities of this new offence as a means of defining corporate liability for manslaughter, rather than an entirely new addition to the ranks of criminal offences. In these circumstances, we think that the exclusion is appropriate. In future, cases will be investigated on the basis of the new offence and existing offences for individuals. I argue that that would be a substantial step forward, and one that I am sure the House would generally commend. For those reasons, we continue to resist the amendment.
My Lords, I would be most grateful if the Minister would allow me to ask a question. Is he saying that, after the first and only debate on secondary liability during the passage of the Bill, apart from ones in Grand Committee in which one can go on and on for ever and no decision is ever taken, the Government will not think about it again at all?
My Lords, Governments at all times reflect on issues that have been raised in debate, and I am sure that we will continue to reflect on these matters.
The noble Lord, Lord James, argued in summary that duties of care could become too confused. The response that we provided sets out the position as it applies at the moment. Individuals can be liable for gross negligence and manslaughter if they are in gross breach of a duty of care. Complexities inevitably arise when more than one person is involved. That must follow because the position of each person and their responsibilities must be considered. I hope that the noble Lord will think on that response.
I hope that our responses have been helpful. I fully accept that not all noble Lords will be entirely happy with the position that we have reached, but we think that the way in which we have set out the Bill continues to make it workable and takes us a step further along the road in ensuring that we have effective corporate manslaughter legislation on the statute book.
My Lords, I thank my noble friend for that response, but he will not be surprised to learn that I am not very satisfied with it. There have been a number of quite notable submissions in the debate this evening, particularly on secondary liability, and with particular reference to Amendment No. 47, which seeks to remove Clause 16. He has repeated again that he believes that present legislation provides for a remedy. We discussed that in Grand Committee. It was pointed out by a number of people, including my noble friend Lady Gibson, who is a member of the Health and Safety Executive, that to their knowledge very few prosecutions have utilised the Health and Safety at Work etc. Act during her time as a member of the executive. The few that did involved very small companies.
I support what my noble friend Lord Wedderburn has said. We have had a long and quite interesting debate on secondary liability and, although I intend to withdraw the amendment, I urge the Minister to think again about what has been said this evening and to see whether some step can be taken to address some of the problems that we have outlined. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Public policy decisions, exclusively public functions and statutory inspections]:
[Amendments Nos. 9 and 10 not moved.]
11: Clause 3 , page 3, line 43, leave out “or (b)” and insert “(b) or (d)”
On Question, amendment agreed to.
[Amendment No. 12 not moved.]
13: Clause 3 , page 3, line 46, leave out “or (b)” and insert “(b) or (d)”
On Question, amendment agreed to.
14: Clause 3 , page 4, leave out lines 6 to 8
15: Clause 3 , page 4, leave out lines 11 to 13
On Question, amendments agreed to.