Consideration of amendments on Report resumed.
16: After Clause 3 , insert the following new Clause—
(1) A court before which an organisation or person is convicted under this Act may make an order that the organisation makes public in a manner and form to be decided by the court details of any or all of the following—
(a) the offence of which the organisation or person was convicted; (b) the sentence imposed; (c) any measures to be taken by the organisation to reduce the likelihood of its committing further offences; and (d) any other matter relating to the offence or sentence which the court considers appropriate. (2) An organisation which fails to comply with an order under this section is guilty of an offence and liable on conviction on indictment to a fine.”
The noble Baroness said: My Lords, in Grand Committee there was a full discussion on naming and shaming, as proposed in an amendment tabled by the noble Lord, Lord Hunt of Wirral, and in my amendment. The amendments sought to give power to the court to publicise a conviction. Our amendment spells out not only that there should be naming and shaming, but the steps that must be taken to try to ensure that there is no recurrence. We believe this to be extremely important. The public have a right to know, in a case in which a death has occurred, not only that those liable have been convicted and have paid the appropriate penalty, but that steps are being taken to ensure that a similar incident is unlikely to happen. The impression that I received on Report was that my noble friend the Minister was quite sympathetic to the points that we raised, and he said that he was considering carefully the suggestions that had come forward. I therefore await with interest his response to the amendment today. I beg to move.
My Lords, I have added my name to the amendment, and I regard it as a very important matter. I very much hope that the Minister will be able to tell us that the Bill will be firmed up on the question of making it clear to the public who has failed in regard to these essential matters of safety at work. I support the amendment very strongly.
My Lords, I pay tribute to my noble friend because she has spoken persuasively in the past about the desirability of having a sanction of this sort. As a result of the arguments put forward by my noble friend and others, including in another place, we have been persuaded that adverse publicity orders would be a powerful addition to the package of sanctions in the Bill.
We have tabled Amendment No. 38 in the name of my noble friend Lady Scotland, and we shall come to it later. The noble Lord, Lord Hunt, has also tabled Amendment No. 29 but, as it happens, they are not grouped together. I shall speak in more detail about Amendment No. 38 when we reach it, but I hope that my noble friend will accept that we believe it achieves what she is looking for from her amendment. In that respect, I hope that it will also respond to what the noble Lord, Lord Wedderburn, has asked for. So, if my noble friend is content to be patient to that extent, I invite her to withdraw her amendment at this stage and we shall deal with the detail of the government amendment when we get to it.
My Lords, I thank my noble and learned friend for that response. I am very glad to learn that the Government have taken seriously what has been said on both sides of the House on this issue. I am therefore happy to withdraw my amendment and await with interest what he has to say in support of his. Perhaps the noble Lord, Lord Hunt of Wirral, is moving in the same direction. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Military activities]:
17: Clause 4, page 4, leave out lines 31 to 33
On Question, amendment agreed to.
Clause 5 [Policing and law enforcement]:
18: Clause 5 , page 4, line 43, leave out paragraph (c)
The noble Lord said: My Lords, I shall speak also to Amendment No. 19. Amendment No. 18 would cancel the blanket exemption given to the police services in respect of the duty of care owed to members of the public in the carrying out of policing or the policing of law-enforcing activities. Amendment No. 19 seeks substantively to redefine the duty of care owed by the police towards members of the public and the separate duty of care owed to its own employees in respect of hazardous training.
Proposed new subsection (3) of Amendment No. 19 sets out the parameters of care that would be owed by the police force to the public and to its own employees undertaking hazardous training. Proposed new subsection (3A) would ensure that, before returning a guilty verdict, the jury would have to be satisfied that there had been a gross breach of a duty of care—that a body’s conduct had fallen far below what could reasonably be expected in the circumstances. That consideration would be circumscribed by the factors that the jury would have to take into account under paragraphs (a) to (d) of subsection (3A)—namely, the nature of the activity or training and the context in which it was performed; other relevant duties to which the organisation was subject; resource constraints; and public interest considerations.
I believe that that is a fairly comprehensive list of mitigating factors, and rightly so, for the purpose of the amendment is not to turn the police service or anyone within it into a scapegoat or to proscribe the extent to which it can carry out hazardous activities. Rather, it is intended to ensure that the admirable aim of the Bill to provide an incentive not to carry out functions in a grossly negligent manner would also apply to the police service.
The Minister will recall—I think that I mentioned it in Committee—the 2000 agreement between the Association of Chief Police Officers, the Health and Safety Executive and the Home Office, which established that the Health and Safety Executive should inspect training areas where hazardous training is being undertaken. The clear principle behind that agreement was that, while one could reasonably expect the training on the day to be hazardous to a certain extent, there was the possibility to mitigate that potential danger through thorough preparation. The amendment would not enable a prosecution of a police force when an individual had died as a result of the necessarily hazardous nature of compulsory and necessary training, but it would ensure that where training that need not have been so hazardous in nature has been provided in a grossly negligent manner, resulting in a death, the body responsible could be held to account.
The broad range of mitigating factors seriously limits the application of the offence to all hazardous training. Its sole function is to enable a judge and jury to determine whether in so far as an organisation were able, in its capacity as an organising body corporate, to seek to prevent a death in given circumstances, it did so. I believe that is not an unreasonable request and I hope that in its new, slim-line, simplified form the Minister will at least be able to consider the amendment. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Henley, for the way in which he has moved the amendment. I accept that noble Lords opposite have moved on from their earlier position on this matter and have adopted what one can fairly describe as a more novel approach.
Clause 5 provides exemptions for the police when they are engaged in operational activities. The exemption also extends to other public authorities that engage in policing activities. Our starting point for this exemption was to look at the situations where the civil courts have decided to impose duties of care on the police. The civil courts have exercised great caution over making judgments about how and when the police should have acted. Having considered this carefully, we took the view that they were right and followed that in framing the exemption in the Bill.
The exemption in subsection (3), which the amendment tabled by the noble Lords, Lord Hunt and Lord Henley, would remove, excludes policing and law enforcement activities generally, but does not exclude duties owed as employer and occupier in those circumstances. The civil courts have taken a cautious approach to extending duties of care to the police when they are engaged in operational activities; for example, they have declined to extend duties of care to situations where the police have failed to catch serial killers. We believe corporate manslaughter merits a similarly cautious approach.
There are two main reasons why the courts have been cautious: first, that the courts may be ill equipped to judge certain decisions; and, secondly, that to expose the police to liability for decisions about police operations could seriously distort their priorities. Those arguments are especially relevant to the type of case where the police are being called to account for a failure to protect the public from violent people. For example, in such a circumstance, the courts would have to consider all the reasons why the police did not act, including weighing up the relative seriousness of the other operations that the police were dealing with at the time and whether the police had correctly prioritised their staff and resources. We do not think that the courts have the right level of expertise to engage in that sort of evaluation, especially where there are no objective standards by which to measure issues such as health and safety.
We are also concerned that the imposition of liability for manslaughter might make police forces act in an overly defensive way. The issue of being risk averse was made in an earlier debate by the noble Lord, Lord Imbert. This could result in a shifting of priorities to crimes where injury to the public might occur, no matter how slight the injury or how small the risk; for example, from dealing with burglaries to attending every incident of a threat to kill, no matter how unlikely the threat.
I recognise that these arguments carry particular force when considering holding the police to account for failures to prevent killings, where the label of manslaughter would also seem especially inapt. However, we do not think it is straightforward to distinguish this type of policing operation from another where the case for an exemption may be less strong—errors of commission rather than omission. The police do not engage in operational activities except when fulfilling duties to protect the public and enforce the law, where operational choices need to be fairly made. Targeting proactive errors rather than failures might encourage the police to prefer inaction over decisive intervention. We do not want that, so we have drawn a clear line around all policing and law enforcement activities and carefully excluded them from the scope of the offence.
The noble Lords propose an alternative solution that would ensure juries take into account the particular circumstances the police find themselves in—including the nature of the operation, resource constraints that applied at the time and other public interest considerations—when assessing whether a breach has been gross. Although this might in some respects appear an attractive proposition, it is not practical or realistic to expect the prosecution to be able to put before the courts all the considerations that the police had to take into account when balancing their resources in order to deal with any particular incident. Nor would such a solution give the police the clarity they need in terms of when the offence will apply to them. We have been careful to ensure that potential defendants are clear about the circumstances in which they may become liable for this offence. For the police, there are circumstances where no duty of care would be found by a civil court but the position under the criminal law would be uncertain. This very uncertainty could lead the police to act in a risk-averse way, with all the attendant dangers.
On the amendment about hazardous training, the police have to undergo the hazardous training to prepare for dealing with serious disorder. The example used in Grand Committee was where the police experience real petrol bombing in training to deal with riots. The police must be able to experience that sort of training to fully prepare them for the unfortunate but occasional events which exist as a real threat on our streets. That does not mean, however, that all hazardous training undertaken by the police should be excluded from the offence. As the noble Lord, Lord Henley, pointed out in Grand Committee and this evening, there is an agreement between ACPO and the Health and Safety Executive about how the HSE’s role in police hazardous training generally operates. In general, hazardous training should come under the offence, and as the Bill is drafted it will do so.
To take two examples from the Met Police’s book of remembrance for officers, two officers are recorded as having died in the course of training in the past 30 years. In one case, an officer drowned during underwater search training and, in the other, an officer was killed in a car crash during training with the stolen vehicle unit. In both cases the training was indeed of a hazardous nature. However, neither case would have been excluded on the basis of this exemption because, while hazardous, it was not being carried out to improve effectiveness in dealing with terrorism and other similarly serious circumstances.
This sort of training will often be focused on enabling officers to carry out hazardous activities as safely as possible in the circumstances, through evaluating risks and making decisions about whether to continue the activity. The difference between this type of training and riot training is about the extent to which the training environment can be controlled and yet realistic. Officers involved in riots cannot decide to stop because it has become too dangerous, so riot training will be in a less controlled environment. The use of real petrol bombs will also mean that outcomes are less predictable. We do not want the police and other law enforcers to undertake training which is artificial and avoids risky situations so that the first time the police experience a riot is in a genuine riot. That would be counter-productive and put officers at greater risk because they will be unprepared for dangers.
To summarise, the offence is fundamentally about the proper management of health and safety, not the adequacy of the way public bodies discharge their statutory responsibilities. That is not, of course, to argue that police decisions are always right. They may and do get things wrong. When they do, they can be held to account by the Independent Police Complaints Commission, independent inquiries and, of course, through the tripartite arrangements with police authorities and the Home Secretary. Individual officers are also fully subject to the criminal law, but extending criminal liability over operational matters to the police as a body is unnecessary and could distort policing priorities in a damaging and counter-productive way. For those reasons, we continue to resist the noble Lord’s amendment, clever though it is.
My Lords, I am very grateful to the Minister for giving us that long explanation of a relatively brief amendment. I thought that we were putting forward a simple and fairly small improvement to the Bill, but the Minister does not accept that. It is probably too late to take it any further. I am grateful to the noble Lord for taking us through all the points that those advising him think we ought to be taken through. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 19 and 20 not moved.]
21: Clause 5, page 5, line 12, leave out “or (b)” and insert “(b) or (d)”
On Question, amendment agreed to.
22: Clause 5, page 5, leave out lines 27 to 29
On Question, amendment agreed to.
Clause 6 [Emergencies]:
23: Clause 6, page 5, line 38, leave out paragraph (d) and insert—
“(d) any other organisation employing people whose duties involve extinguishing fires, or protecting life and property in the event of fire, or responding to emergency circumstances (or circumstances believed to be emergency circumstances);”
The noble Lord said: My Lords, Amendment No. 23 deals with one of the most unsatisfactory elements remaining in the Bill and brings commercial emergency services within the ambit of the existing exemption for statutory emergency services and their agents. I am concerned by their omission. Clause 6, which provides for exemptions for the emergency services, explicitly excludes commercial emergency services from the exemption as the result of a government-sponsored amendment in the other place. Clause 6(2)(d) states that,
“any other organisation providing a service of responding to emergency circumstances ... otherwise than on a commercial basis”,
would be exempt from a corporate manslaughter charge should an individual die in potentially preventable circumstances.
In the other place, the Home Office Minister, Gerry Sutcliffe, suggested that the presumption he and his colleagues were making was broadly against the creation of new offences or extending them in such a way as to make organisations risk-averse in unnecessary or undesirable ways. He said:
“We must be careful about the implications of imposing legally binding duties or making organisations more risk averse”.
He went on to say:
“The definition of an emergency situation is that the circumstances are life-threatening or threaten to cause serious injury or illness or harm to the environment or buildings or other property. The decisions taken ... are split-second decisions. The exemptions that we are considering apply to those conditions, not to how the organisation goes about its business in general”.—[Official Report, Commons Standing Committee B, 26/10/06; col. 154.]
That last sentence seems to me to be all important. When considering the exemption of the emergency services, we must take into account the demands that those services will face, not the way their business is conducted outwith emergency situations.
Commercial emergency services face exactly the same life-and-death decisions as a statutory authority when responding to emergency situations. I can go further than that: a life-and-death, split-second decision is a life-and-death, split-second decision regardless of whether the individual taking it is paid or not paid and whether he or she works in the public sector, the private sector or some hybrid of the two. This is the crux of the argument. The fact is that privately employed firefighters at an airport, docks or film studio are not so very different from those employed by the state or its agencies. They are there with good reason. That reason is at least partially attributable to statutory obligations, either directly or indirectly. And they are there for reasons of health and safety, or else the requirements of statutory employer’s liability.
Of course we do not want them to be remiss in their duties of care, nor to be grossly negligent, but in an emergency situation they will face the same split-second dilemmas as will any other firefighter. Why should we legislate arbitrarily—and I use the word advisedly—to cause individuals in identical situations potentially to make radically different assessments of risk? It defies both logic and common sense.
In Grand Committee, the noble and learned Lord, Lord Davidson, said—if I may quote him in his presence—that,
“commercial organisations can choose the terms of the contractual arrangement with the client and on that basis agree the service that they are able to supply. They can also choose to withdraw their services if there is a risk that resources cannot be matched to demand”.
“In most circumstances, commercial organisations, such as a company offering firefighting services to the film industry, can call for back-up from the fire brigade. There is no such back-up for the fire brigade”.—[Official Report, 17/1/07; col. GC 252].
I believe that that argument simply lacks traction.
Statutory obligations are at play here, and the danger of making individuals unduly hesitant and possibly risk-averse in split-second, life-or-death situations is identical across sectors.
I also fail to see the relevance of the point about back-up because members of the fire brigade have a back-up too. They can call on the resources of other parts of their fire brigade and other fire brigades. What that has to do with how they conduct themselves in an emergency situation is beyond me. I beg to move.
My Lords, I shall see whether my arguments lack traction. I will try to deal with the points made by the noble Lord, Lord Hunt. Before I do perhaps I should set the amendment in context. The amendment to the clause requires us to do that. The purpose of the clause is to make it clear that a narrow range of organisations will not be liable to prosecution for corporate manslaughter regarding actions that they take in response to emergency circumstances. That means that matters such as the time taken for the emergency services to arrive on scene, the number of personnel determined to attend, and the effectiveness of how the emergency situation is handled are excluded from the ambit of the offence.
The value of this exemption is that it gives clarity to the emergency services about where their liabilities for manslaughter lie. In most circumstances the organisations listed would not owe a duty of care in terms of their responses to emergencies; so even without the exemption they would not be subject to this offence. There are some situations where that would be open to question. It could lead to uncertainty in the emergency services and could encourage a culture of undue risk aversion. That would not be in the public interest.
The amendment tabled in the name of the noble Lord, Lord Hunt of Wirral, seeks to widen the extent of this exemption. At present, the exemption applies only to organisations that are, in effect, providing a public service when responding to emergency circumstances. But as I think the noble Lord, Lord Wedderburn, noted in Committee, this is not limited to public authorities. Commercial and other organisations are covered by the exemption where they are effectively standing in for a public authority. The exemption also applies to a range of other organisations such as Mountain Rescue and the Royal National Lifeboat Institution, which are not part of the public sector but, as we all understand, effectively perform a public role and a public duty.
The noble Lord, Lord Hunt, proposes that we should go further than this and exempt all organisations employing firefighters or protecting life and property in the event of a fire or responding to other emergency circumstances. As I understand it, his argument is that private and public bodies face exactly the same risks at the scene of an emergency and so they should benefit from the same protection from liability. I agree that the task of responding to an emergency such as a fire presents the same challenges for either public or private firefighters, but this exemption is not only about the management of difficult emergency situations involving split-second decisions taken at the scene of an emergency; it is also directed at wider issues such as the time it takes the emergency services to arrive on scene and the number of personnel deployed.
It is in relation to liability for decisions about the management and allocation of resources that we think there is a difference between organisations providing services solely on a commercial basis and those subject to wider public considerations. Unlike commercial operators, the statutory fire service does not choose to offer fire-fighting capacity on a contractual basis and it cannot withdraw its services from the market if it finds its resources are overstretched. By contrast, commercial organisations can choose the terms of the contract with the client and on that basis agree the service that they are able to supply. They can also withdraw their services if there is a risk that resources could not be matched to demand. If, therefore, a commercial organisation fails grossly negligently to meet the terms of the contract, we are not persuaded that it would be right to exempt it from liability.
It is also worth bearing in mind how duties of care appear to fall in the common law. The courts have recognised that public rescue authorities do not usually owe duties of care in respect to the way they respond to emergencies, but it is not at all clear that the same considerations apply in respect of private companies providing services on a contractual basis. We have therefore taken the approach that where private organisations are effectively performing a public role, their liability should be comparable to that of public rescue authorities, but the Bill does not otherwise remove existing liabilities for manslaughter.
Having heard some of the arguments we prepared earlier, I hope the noble Lord will feel able to withdraw his amendment.
My Lords, I congratulate the noble Lord on coming forward with some very persuasive arguments. I have increasing respect for his job application to be a noble and learned law officer because he has put up one of the best performances of the day. In those circumstances, I have no hesitation in seeking to withdraw the amendment.
Amendment, by leave, withdrawn.
24: Clause 6 , page 6, leave out line 23
On Question, amendment agreed to.
Clause 7 [Child-protection and probation functions]:
25: Clause 7 , page 7, line 19, leave out subsection (4)
On Question, amendment agreed to.
26: After Clause 7 , insert the following new Clause—
A duty of care owed by a person only in his capacity as a trustee shall not constitute a relevant duty of care.”
The noble Lord said: My Lords, the amendment was discussed in Grand Committee, at which time we all underestimated the extent of the problem, as I will shortly show.
I declare an interest in that I am on the board of trustees of two charities. One charity is concerned with affordable housing for young workers in the horseracing industry—I do not think they represent a threat—and the other charity supports young British composers of serious music and, although some of their masterpieces might cause their audiences to commit mass suicide, I hope that will not be considered to be manslaughter.
We are in a very odd situation. I think the Government think they are saying exactly the same thing as ourselves, although they may think that we are saying exactly the same thing as them, but somewhere in the middle we are apart. The issue is the extent to which the Bill will have application to charity trustees. The view was put very strongly in Grand Committee by several noble Lords, as well as by the Government, that the Bill does not apply to charity trustees. I have taken the view of the Charity Commission on this and that of several firms of independent commercial lawyers, notably Eversheds and Baker Tilly, who are the specialists in the charity sector. The very strong view is that it most certainly applies to charity trustees, for this reason above all: as its title implies, the Bill is aimed at applying to corporate directors and corporate activity.
In Grand Committee, we underestimated the extent to which charities rely on embedded corporate entities through which to do their business. The figure is a staggering 26,034, which is a very large number of charities indeed. Although the Charity Commission emphasised that that comprises only 15 per cent of the total charities under its umbrella, that 15 per cent accounts very much for the high end of British charitable contributions in times of crisis—earthquakes, tsunamis and support for foreign communities.
Therefore, the trustees of those charities will be caught because the obligations and responsibilities of every corporate entity that has directors working in a charity are accepted and replicated by the trustees of those charities. That is a universal principle that runs right the way through every charitable activity in the United Kingdom. Consequently, whatever the Government intended, charitable trustees are caught under the meaning of the Bill.
The 23 short words that I propose are intended to provide the clarification that the Government said in Grand Committee existed: that this does not apply to charitable trustees. There is a considerable risk of major curtailment of British charitable activity. British charitable funding is probably the most humanitarian and human side of our image in the world at large. It would be a great shame if the enthusiastic support of British people for foreign nations in time of crisis were seen to fall away, but that might happen.
The charities use their corporate entities as the means of recruiting, remunerating and sending forth the aid workers to administer the charity provided by the generosity and support of the public. They send those aid workers to spend the charity's money in whichever foreign country is a problem. They are usually quite dangerous situations; there have been a number of fatalities and tragic situations relating to those people in the past; and there will continue so to be.
Under the structure of the Bill, those people would become the subject of challenge for potential cause of manslaughter for having been sent to stand in harm's way to administer those charities. The charities will almost certainly stop sending paid aid workers from within their resources and under the direction and executive control of their executive board. The trustees will not want to endorse that because they will see that threat knocking on to them as a responsibility. Consequently, there will be a significant curtailment of the efficiency and effectiveness of the administration of British charitably provided funds.
It will not be long before, having let the aid go directly into the hands of foreign workers, we shall have tabloid headlines such as, “Foreign crooks nick our aid cash”, and the appetite of the British public to support charities will fall away. With that, our humanitarian face in the world will suffer. None of us would want to see that. That will be an unintended consequence of the Bill, which will be very unfortunate.
All I am asking is that the Government will again consider my 23 words and include them at some suitable point as a stand-alone clause to make quite clear that trustees of charities can continue to act with the objectivity and integrity that has marked their activities for so long without any hazard of interference from the Bill, however unintentional. I beg to move.
My Lords, I strongly support my noble friend. We are very grateful to him for making this very important point, which Ministers seem to have neglected. As he said, trustees of charities play a crucial role in the well-being of a healthy society. Many of them, of course, serve more than one charity in this way. Although the new offences that the legislation will create are in essence corporate by definition, I believe my noble friend has a good point; those who serve unpaid as trustees may be troubled by the thought that the range of their already onerous responsibilities may be expanded still further by the legislation. I very much hope that the Minister will be able to put our minds at rest.
My Lords, I strongly believe that I can put minds at rest, but not, I am afraid, by accepting the amendment. I entirely understand the concern of the noble Lord, Lord James of Blackheath, that we do not want people to be deterred from taking on the important role of trustee in a charity. I fully acknowledge that many people bring with them skill, experience, enthusiasm and energy, which can be of huge benefit to the people who are the subjects of the charity, both here and overseas. The noble Lord painted a terrifying picture of humanitarian aid being cut off as the British public turned their backs on charities. If I thought for a moment that the Bill would do that, I would be very anxious to find a way of dealing with it. I do not think that, and I want to set at rest the mind of the noble Lord, Lord Hunt of Wirral.
The most important point to make is that the concerns expressed by the noble Lord, Lord James, are about the possibility that trustees, as individuals, might be guilty of an offence under the Bill. They cannot be. As the noble Lord, Lord Hunt of Wirral, rightly says, the Bill by its definition deals with corporate responsibility. Clause 1 identifies the organisations to which the offence applies as,
“a corporation … a department … a police force”.
Now we have added specified categories of unincorporated associations; partnerships, trade unions, and employers’ associations. At no point does it include an individual. Indeed, that point is made clearer by our debate on Amendments Nos. 7 and 8 on the possibility of secondary liability. As my noble friend Lord Bassam made clear, the Government do not accept that the Bill should impose liability on individuals. Clause 16, which some noble Lords want to take out, says very clearly:
“An individual cannot be guilty of aiding, abetting, counselling or procuring the commission of an offence of corporate manslaughter”.
So the offence remains that against an organisation only. The Bill cannot create an offence against an individual, whether a trustee or anyone else. That does not mean that individuals might not be liable for existing criminal offences, but that liability exists already and the Bill does nothing to extend it.
I hope that the noble Lord will accept the clear assurance that the Bill does not touch on the liability of individual trustees. I was slightly surprised to hear what he said about the Charity Commissioners. I say this simply so that he knows. I know that he has discussed the matter with them, but I am told that they are satisfied that no further clarification of the Bill is necessary. To that extent, he takes a different view, but that is what I am told their position is.
The noble Lord may say, “That is all very well, but wouldn’t it be a good idea to make it clear in the Bill?”. That is absolutely unnecessary, but there is always a risk, because as soon as you include in the Bill a provision that something does not apply to something that it would not otherwise look as though it does, you start to give rise to all sorts of doubts about what the other provisions actually mean. We have been very clear that this is corporate legislation; it is not directed at individuals. To claim that one category of individuals is not covered might raise doubts about whether other categories of individuals are covered.
I invite the noble Lord to accept that assurance. I hope that he will be able to withdraw the amendment.
My Lords, I am grateful for the explanation. The problem is that, to some extent, the damage has been done already because the Charity Commission has, with its legal advice, already circulated to all charities that contain a corporate entity a notification that they are within the jurisdiction of the Bill. That opinion has been confirmed to everyone in Baker Tilly’s and Eversheds’s client base. This is where the problem starts. Nobody reading in Hansard the discussions on Amendments Nos. 7 and 8 will go to bed with an easier mind regarding the scope and intention of the Bill hereafter. I do not think that those debates will ease the situation.
The noble Baroness, Lady Scotland, in her helpful letter to me, accepted my comments about the unhelpfulness of the Home Office notes and said that they were subject to revision and review. If the Government are not prepared to put the proposed new clause into the Bill, I suggest that they include in the Explanatory Notes a paragraph describing the role or non-role of charities.
My Lords, I hope that the House will permit me to clarify a point that I hope the noble Lord has not misunderstood. Corporations are covered by the Bill but individuals are not. An individual trustee is not covered by the Bill; a corporation, whatever its form, can be covered. I hope that that is clear enough.
My Lords, I hope that time and circumstances do not make us regret any foreshortening of this debate, because there is fear in the minds of a very dying breed of quality trustee. We do not wish to see that breed become extinct because of the anxieties that the Bill creates, any more than we wish to see them curtail the activities of their charities. Only time will tell what damage will be caused. My concern is that we will not set people’s minds at rest. I accept that the Bill relates to boards not directors, but much of our debate will not give peace of mind to directors looking at what consequences may fall on them as a result of these debates. I hope that the Government will consider using the Explanatory Notes to provide a better description. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Factors for jury]:
27: Clause 8 , page 8, leave out lines 1 to 5
28: Clause 8 , page 8, leave out lines 11 to 13
On Question, amendments agreed to.
29: Before Clause 9 , insert the following new Clause—
“Power to order publication of offence
(1) An organisation that is guilty of corporate manslaughter or corporate homicide is liable on conviction on indictment to—
(a) make the conviction known by a statement in open court in terms approved by the court, and (b) give an undertaking to the court as to the manner of its publication. (2) Any penalty imposed under this Act shall be notified by the court to the Registrar of Companies and the Registrar of Companies in Scotland.”
The noble Lord said: My Lords, this subject has already been aired by the noble Baroness, Lady Turner of Camden, on Amendment No. 16. The amendments in this group seek to add a power to the Bill to order a convicted body to make its conviction public.
Like the noble Baroness, Lady Turner of Camden, I am pleased to see that the Government have tabled their own amendment. They have added to the proposals we discussed in Committee; in fact, their amendment goes further, making it explicit that the court must have regard to any representations made by both the prosecution and the defence in deciding the manner of publication. Most importantly, that will enable the courts to consider the wishes of the families of victims of the offence. I hope that that is what the Minister has envisaged. There could be scope here for the court to take into account victim impact statements, although I imagine that the prosecution on behalf of the families of victims would make its clients’ wishes known as a matter of course.
I welcome the further measures that enable the court to direct the publication, as opposed to simply approving what a convicted company may suggest, and the concept that an enforcement authority will ensure that the publication is carried out. I should be interested to hear from the noble and learned Lord the Attorney-General what that enforcement authority would be if it is not to be the courts themselves. I am, however, content that the Government’s amendment achieves everything that my amendment, my noble friend’s amendment and the amendment tabled by the noble Baroness, Lady Turner of Camden, set out to do. I lend my full support to the government amendment. I beg to move.
My Lords, that is an improvement. I shall deal quite briefly with this. I shall explain the government amendment and I thank the noble Lord, Lord Wedderburn, and my noble friend Lady Turner for their support. As I indicated, we have been persuaded by the arguments put forward; namely, that publicity orders are valuable. I should like to touch on one aspect of the amendment proposed by the noble Lord, Lord Hunt, which is not covered in our amendment, to explain why we do not go along with that part of it. He proposes that:
“Any penalty … shall be notified by the court to the Registrar of Companies and the Registrar of Companies in Scotland”.
They do not currently have a function of registering that sort of order. What is more, that could not be applied to any of the entities now capable of being convicted of the offence which are not registered in that way. But I do not think, and I hope that the noble Lord will agree, that that detracts from the benefit of the government amendment.
Under our proposed amendment, any organisation could have imposed on it such an order, which would be flexible. The court could decide in just what way the conviction should be publicised, including requiring it to be identified in some way in the annual report. Of course, if it is in the annual report, which is then registered at Companies House, it will be available in that way.
I am glad that the noble Lord, Lord Hunt, has also drawn attention to the element in the government amendment that requires the consultation with the enforcement authorities and the prosecution. The enforcement authority might, for example, be the Health and Safety Executive. I agree with the noble Lord that one of the benefits of proceeding in this way is that the views of the victim or representatives of the victim could be ascertained. I thoroughly support why he said that ascertaining such views at the time of sentence in order to understand the impact is important; I strongly impose that on prosecutors. I am glad he supports that.
We expect, in a number of cases at least, that the relevant regulator and/or the prosecution would propose what sort of order might be appropriate so that the judge has that idea. Obviously the defence will be in a position to make representations in response. The judge will then determine the terms of the order and the exact form it will take. It is likely that some guidance may be needed on the kind of orders that would be appropriate, but we certainly do not want to hold up this legislation for such guidance to be produced.
I slightly apprehend that the noble Lord put a question to me that I may not have addressed. He is shaking his head and I am glad about that. Technically, therefore, I invite him to withdraw his amendment, and I will move Amendment No. 38 when we get to it in the Marshalled List.
My Lords, the only outstanding point concerned the enforcement authority, but I believe that the noble and learned Lord answered it. I see that I have in fact appended my name to the government amendment, so there may be a contest between the two of us when the Deputy Speaker comes to seek who is to move it. However, so far as the noble and learned Lord’s response is concerned, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Power to order breach etc to be remedied]:
30: Clause 9 , page 8, line 17, leave out “order it” and insert “make an order (a “remedial order”) requiring the organisation”
The noble and learned Lord said: My Lords, in moving government Amendment No. 30 I shall speak also to Amendments Nos. 32 to 35 in the group and resist Amendments Nos. 31 and 36. Clause 9 gives the court the power to order the convicted organisation to remedy not only the management failure and any matters arising from that failure that formed the basis of the conviction but also to remedy any deficiencies in the policies, systems and practices that created the environment in which the fatality could occur. The purpose of those orders will be to prevent further death or injury and it is clearly important that organisations comply with remedial orders when they are set. To this end, we have made the consequences of not complying with an order more serious than was the case in the draft Bill. Organisations which do not comply will be committing an offence and will be returned to the Crown Court where they will be subject to an unlimited fine.
We have also provided that the regulatory authorities will be involved in the setting of an order and are confident that these bodies will ensure that safe practices are adopted in organisations convicted of corporate manslaughter. We can, however, see a case for building in a process for facilitating such monitoring and we have therefore tabled Amendment No. 34 which allows the court to require an organisation to provide evidence of compliance to any enforcement authority that was consulted prior to the order being set. That goes back some way to the question put to me by the noble Lord on the last amendment. I hope the House will agree that the benefit here is that the provision builds in an extra safeguard to ensure that convicted organisations always do carry out any remedial action ordered by the court.
The other government amendments are technical changes to the drafting which make no substantive changes to the Bill. I know that my noble friend Lady Turner of Camden has tabled amendments designed to ensure that remedial orders are complied with. I am interested to hear what she will say about them, so I will postpone my comments on those until she has had a chance to speak to them. I beg to move.
My Lords, I have tabled Amendments Nos. 31 and 36 and I assume that in a sense the government amendment suggesting a remedial order is one way of responding to some of the comments made in Grand Committee. I moved then an amendment similar to this one, and I got the impression, from, I think, my noble friend Lord Bassam, that the comments I had made would receive attention. Indeed, they seemed to be sympathetically received.
I was pleased to see this set of amendments, but there are certain differences. In my amendment I wanted to identify a person or persons within the organisation who would have the responsibility for seeing that the steps that had to be taken were actually taken, and to ensure that that person should have the responsibility to report back to the court. If he did not take the necessary steps or report to the court, there would be possibilities of action for contempt. It seemed to me at the time that those were sensible steps that could be taken after a very serious incident to ensure that there would be monitoring of the situation by the court so that the incident was not likely to recur, and that there would be plenty of opportunity for the court to ensure that the proper steps had been taken.
Those are the reasons for my two amendments, but I accept that the propositions advanced by the Government answer to some extent the problems we raised in Grand Committee. I do not intend to press our Amendments Nos. 31 and 36 this evening, although I still believe that identifying someone with responsibility and ensuring that it is followed up is one of the best methods. On the other hand, I know that the Government have taken a different view as far as personal liability is concerned, and this stems from that attitude throughout the Bill. I will not therefore be pressing my amendments today.
My Lords, there have been a number of speeches, both in this House and in the other place, expressing considerable unease about remedial orders as originally set out in Clause 9. Without doubt, the proposed amendments, which the noble and learned Lord the Attorney-General has already referred to, now greatly improve the drafting of the Bill and make matters far more clear.
The noble and learned Lord may have noticed, however, that whereas, in the interests of good will and consensus, I have added my name to a number of government amendments, in this instance I have not done so. That is because I still believe the crucial question is how to make these orders work while avoiding any measures that a fair-minded person might deem to be disproportionate. I confess that I am still quite torn when looking at Amendment No. 36, in the name of the noble Baroness, Lady Turner of Camden, because that seems to be a step in the right direction. If these orders are to be effective, responsibility for them must be clearly allocated and accountability established.
We are dealing with corporate offences here, however, and on that basis we must focus just as clearly on corporate redress and corporate answers to the problems that have led to death. On balance, and with some reluctance, I am of the view, which I believe I share with the noble and learned Lord, that corporate measures will, and must, suffice.
My Lords, I am grateful to both my noble friend and the noble Lord. Having spoken to the amendment already, I want to make a couple of points. I have noted that my noble friend Lady Turner has indicated that she is not going to move her amendments. Notwithstanding that indication, she is still entitled to some explanation from me of why the Government are not persuaded by her arguments. That is only right.
First, the noble Baroness advanced, with diligence and clarity, the desirability of naming an individual to be responsible in effect for enforcement. While listening carefully to that argument, the Government have two problems with it. One of them is that which the noble Lord, Lord Hunt of Wirral, has identified: this is a corporate offence, and imposing the responsibility for compliance on an individual may rather confuse that issue.
The second problem is a practical concern. Given that it is a corporate responsibility, one would not want others in the corporation’s management to feel that it is nothing to do with them. There is something of a risk that if you identify a single individual, others may not feel that it is their responsibility. The Government take a different view on that from my noble friend.
The second point is my noble friend’s proposal that the courts should be able to require a convicted organisation to report back to them with details of the remedial steps taken. I can see why my noble friend advocates that, and I can see certain attractions in following that course, but it is not the way that our courts operate. They do not monitor compliance with sentences; whether they ought to in other areas is an interesting question. The closest we come to it is in relation to the very different area of drug testing orders, where there is some compliance by the courts. I had better not go too far down that particular road, save to say that it would be quite a departure for our courts to take on the responsibility of enforcing this sort of order. However, we anticipate that regulators, particularly those who have been involved in the prosecution and consulted on the sanctions to be imposed, as we discussed in a previous amendment, are likely to look closely at whether the remedial order is carried out. That is a pretty strong safeguard.
I am not without sympathy for my noble friend’s point and the reasons behind it. I am grateful to her for indicating that she will not press her amendments, and hope that I have explained the position.
My Lords, before the Minister sits down, is there not a third factor as well? Identifying a person will lead the Government to reconsider the secondary liability of individuals, which they have so far resisted, so naturally they resist identifying anybody because it might lead them to consider who had aided and abetted this offence. These things intersect, and the sooner the Government rethink the question of secondary liability, the better.
My Lords, that is not the reason for resisting the amendments. I am not sure what the proper expression is in this House for “Good try”, but I am not going back on what was said by my noble friend Lord Bassam.
On Question, amendment agreed to.
[Amendment No. 31 not moved.]
32: Clause 9 , page 8, line 24, leave out “An order under subsection (1)” and insert “A remedial order”
33: Clause 9 , page 8, line 30, leave out “an order under subsection (1)” and insert “a remedial order”
34: Clause 9 , page 8, line 33, leave out subsection (4) and insert—
“(4) A remedial order—
(a) must specify a period within which the steps referred to in subsection (1) are to be taken; (b) may require the organisation to supply to an enforcement authority consulted under subsection (3), within a specified period, evidence that those steps have been taken. A period specified under this subsection may be extended or further extended by order of the court on an application made before the end of that period or extended period.”
35: Clause 9 , page 8, line 37, leave out “an order under this section” and insert “a remedial order”
On Question, amendments agreed to.
[Amendment No. 36 not moved.]
37: Clause 9 , page 8, line 39, leave out subsection (6)
38: After Clause 9 , insert the following new Clause—
“Power to order conviction etc to be publicised
(1) A court before which an organisation is convicted of corporate manslaughter or corporate homicide may make an order (a “publicity order”) requiring the organisation to publicise in a specified manner—
(a) the fact that it has been convicted of the offence; (b) specified particulars of the offence; (c) the amount of any fine imposed; (d) the terms of any remedial order made. (2) In deciding on the terms of a publicity order that it is proposing to make, the court must—
(a) ascertain the views of such enforcement authority or authorities (if any) as it considers appropriate; and (b) have regard to any representations made by the prosecution or on behalf of the organisation. (3) A publicity order—
(a) must specify a period within which the requirements referred to in subsection (1) are to be complied with; (b) may require the organisation to supply to any enforcement authority whose views have been ascertained under subsection (2), within a specified period, evidence that those requirements have been complied with. (4) An organisation that fails to comply with a publicity order is guilty of an offence, and liable on conviction on indictment to a fine.”
On Question, amendments agreed to.
Clause 12 [Application to police forces]:
39: Clause 12 , page 10, line 36, leave out “this Act” and insert “section 2”
40: Clause 12 , page 10, line 42, leave out subsection (8)
On Question, amendments agreed to.
41: After Clause 12 , insert the following new Clause—
“Application to partnerships
(1) For the purposes of this Act a partnership is to be treated as owing whatever duties of care it would owe if it were a body corporate.
(2) Proceedings for an offence under this Act alleged to have been committed by a partnership are to be brought in the name of the partnership (and not in that of any of its members).
(3) A fine imposed on a partnership on its conviction of an offence under this Act is to be paid out of the funds of the partnership.
(4) This section does not apply to a partnership that is a legal person under the law by which it is governed.”
On Question, amendment agreed to.
Clause 13 [Procedure, evidence and sentencing]:
42: Clause 13 , page 11, line 6, at end insert—
“( ) a partnership, ( ) a trade union, or ( ) an employers’ association that is not a corporation,”
On Question, amendment agreed to.
43: Before Clause 15 , insert the following new Clause—
“Application of the offence in Scotland
(1) In Scotland an organisation to which section 1 of this Act applies is guilty of an offence if the way in which its activities are managed or organised—
(a) causes a person’s death, and (b) amounts to a reckless disregard for the safety of the deceased. (2) For the purposes of section 1 above, a senior manager of an organisation is reckless where as regards a circumstance or as to a possible result of an act he is or ought to have been aware of an obvious and serious risk that the circumstances or that the result will follow but nonetheless acts where no reasonable person would do so.
(3) In Scotland an organisation that is guilty of corporate homicide is liable on conviction on indictment to—
(a) a fine, (b) an admonition, (c) a compensation order. (4) Subsection (1)(b) in section 1 of this Act does not apply in Scotland.”
The noble Earl said: My Lords, Amendment No. 43 is designed to clarify the new law of corporate homicide as it will be in Scotland. If the Bill is to be used to amend the Scots law, it must do so sympathetically. These amendments have been inspired by the Law Society of Scotland and your Lordships are well aware that I am not a lawyer.
The amendment takes the bull by the horns by respecting the Scots law tradition of homicide being seen as a result of recklessness, while manslaughter is derived from gross negligence. Musing on that for half a minute, recklessness sounds fairly proactive: gross negligence sounds more passive. Errors of omission do not sound as though they fit terribly well with recklessness.
The amendment would avoid the incorporation of an offence of gross breach of the duty of care into Scots law, viewed by the briefing material as an unjustified innovation—it may have been a more casual mistake in the drafting. Subsection (2) would establish a test of recklessness for senior management. In subsection (3), the punishment is widened from a fine—a monetary penalty—to either an admonition or, more usefully, a compensation order. While the Treasury and the court system are rightly the normal recipients of fines, there may be some popularity, locally anyway, in the provision of community facilities by a convicted organisation. This would become a useful and permanent memorial to those who have lost their lives in a corporate homicide incident. I beg to move.
My Lords, I am grateful to the noble Earl, Lord Mar and Kellie, for raising the important issue of how the offence will operate in Scotland. It is useful to provide an explanation as to why the approach of corporate homicide has been adopted in Scotland. Similar difficulties are involved in the prosecution of companies in Scotland for culpable homicide as exist for prosecutions against companies for manslaughter in England and Wales and Northern Ireland.
The Scottish Court of Criminal Appeal in the Transco case confirmed that the identification principle applied under Scots law as the basis for finding a company guilty of culpable homicide, and, as in English law, the appeal court also expressly stated that the law of Scotland does not recognise the principle of ‘aggregation’, which would allow the conduct and states of minds of a number of people over a period of time to be considered collectively. Colleagues in the Scottish Administration are equally determined that the law should be moved on to a new and effective footing.
The problems posed by the current law have been considered comprehensively in both jurisdictions—in England by the Law Commission and then public consultation and pre-legislative scrutiny, and in Scotland, by an expert group set up by the Scottish Executive. The solutions that were arrived at had differences, but also common themes: the need to replace the identification principle with a new test for liability, the application of the offence to the Crown and an element of management failure to fix corporate liability
Clearly it is important that the new offence fits properly into the structure of Scots criminal law, and the Bill is drafted to achieve this. Perhaps most obviously, the offence will be known as corporate manslaughter in England and Wales and Northern Ireland but corporate homicide in Scotland. This reflects the different language for homicide offences in the two jurisdictions. There are other examples dotted throughout the Bill.
But I submit that this amendment goes beyond recognising differences in the Scottish legal system and proposes a fundamentally different approach to the new offence for Scotland. We are reluctant to go down that route in a reserved area. It would mean, for example, that companies would be operating under different regimes north and south of the Border.
We also have a number of reservations about how the different offence for Scotland would work. The heart of the problem for both jurisdictions lies with the identification principle. This Bill takes a significant step in removing that obstacle. I am concerned that this amendment would replicate at least some of the existing problems.
It is difficult to see how the test for recklessness, which is based on being aware of a risk or being in a position where a risk ought to have been appreciated, could be applied to a company other than through the conduct of specific individuals. Indeed, the amendment appears to contemplate that the court would need to identify particular senior managers who had been reckless. However, that would reintroduce the very element of identification that we are trying to get away from. As the Bill stands, the offence focuses on how activities were being managed across an organisation, at senior and junior levels and in terms of the systems and processes in place, not who was managing them. That is the fundamental shift in the law that the Bill offers but, with respect, this amendment would significantly undermine that change in Scotland.
We also think that it is right to underpin the new offence with the concept of gross negligence across the UK, including Scotland where gross negligence in fact formed part of the common law on culpable homicide in Scotland at least until the mid-20th century.
The sanction of admonition is already available pursuant to Section 246 of the Criminal Procedure (Scotland) Act 1995, where a court may dismiss with an admonition any person convicted by it of an offence. Pursuant to that same Act,
“no compensation order shall be made in respect of … loss suffered in consequence of the death of any person”.
But I understand that the Scottish Executive is currently considering a report from the Sentencing Commission for Scotland on financial penalties. As part of that work the Executive is considering the issue of compensation orders. Any changes to that legislation would, of course, properly be a matter for the Scottish Administration.
In summary, I am grateful to the noble Earl for raising the question of how the offence will apply to Scotland. I hope that I have been able to satisfy him that it is both appropriate and desirable for the new Bill to apply across the United Kingdom in the same terms and I urge him to withdraw his amendment.
My Lords, I am grateful to the noble and learned Lord for that explanation. I am not convinced that I necessarily understood it all but I suspect that I shall when I read it tomorrow. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
44: Before Clause 15 , insert the following new Clause—
“Duty to publicise the offence
The Secretary of State shall have a duty to publicise the offence as set out in section 1 of this Act to—
(a) the public, (b) an organisation to which section 1 of this Act applies, and (c) an organisation which is otherwise exempt from the offence by virtue of sections 4 to 7 of this Act.”
The noble Lord said: My Lords, this is a short but important amendment to emphasise the need for this Bill to be properly publicised. This is self-evidently needed, but it is important that the implications of this legislation are made abundantly clear in order to encourage people affected to be aware that they need to anticipate potential risks—in fact, to concentrate minds.
Now more than ever it is incumbent on organisations to ensure that they conduct their affairs with others in mind. I include in this the fact that, over time, various investigations are carried out following disasters or tragedies but frequently recommendations are not followed. This legislation puts organisations on notice that they will be found wanting if they do not take account of such recommendations.
At various stages of the Bill, suggestions were put forward as to how many disasters or events would, or would not, have been avoided if this legislation had been in place. This Bill can play a key role in changing the culture in many spheres of activity, where failures of management and failures of training and awareness have been shown to be the cause of many tragic events. That is why the message must go out loud and clear. It has, I regret to say, not always been the case that legislation has been explained clearly and in good time or disseminated widely. I bring to this idea my experience in another place of a number of Bills, and my life in business. It has been made evident to me that legislation is sometimes difficult for people to grasp, and people are not always made aware of it as clearly as they should be. My key point is that we need to change the culture, and we need people to be aware of what this Bill is about. I look to the noble Lord to give assurances that the legislation will be publicised with the urgency and clarity that is needed. I beg to move.
My Lords, as the noble Lord, Lord Cotter, has set out very clearly, this amendment proposes that there should be a specific duty on the Secretary of State to communicate details of this legislation to the public and to the organisations that will be affected by the new offence. We agree that it is very important that everyone should be aware that this new offence is coming, and the publicity that has surrounded the Bill so far has helpfully prepared the ground for that. It is also vital, as the noble Lord said, that organisations should be given time and guidance to enable them to understand how this offence will work and to help them to make sure that their houses—their businesses and enterprises—are in good order.
To that end, I can give the noble Lord the assurance that I think he is seeking. The Government will be working closely with a whole range of organisations and agencies—including business associations, trade unions, and bodies within government—to ensure that those affected by the new offence will be informed and prepared. The one key message that we want all organisations to understand is that the new offence is firmly linked to the existing framework of health and safety legislation—that is where it should rest—which binds all organisations subject to the offence. They have nothing to fear from this legislation if they are taking their existing responsibilities seriously. By very clearly building on health and safety legislation, we have made sure that those organisations which already comply with their statutory responsibilities will not fall foul of the new legislation.
Another important message here is that the time is up for those organisations which pay scant regard to those responsibilities. The Government are strongly committed to safety in the workplace and to having effective laws in place to prosecute organisations whose neglect of health and safety leads to injury and occasionally to death. The Bill creates a more effective basis for prosecuting organisations for manslaughter. It will no longer be the case that organisations can escape liability for this most serious offence through corporate liability hinging on the identification principle. I entirely appreciate the points that the noble Lord makes in respect of the importance of communicating accurately and clearly what the impact of this new offence will be. But I disagree with the suggestion of imposing a duty on the Secretary of State to communicate this to the public; that would be unprecedented and ultimately unnecessary.
We will take every care to ensure that this new offence is implemented carefully and responsibly and that the organisations affected by the offence and the wider public will have access to information about its effects. We also hope that the very fact of this new offence will make it clear to everyone that health and safety must be given the priority that it deserves within the organisations that it impacts upon and that, in future, those organisations will be held criminally responsible when their gross negligence results in death.
I hope that that gives the noble Lord the assurance that he seeks. We will be taking seriously the question of information about the new offence. I believe it is fair to argue that, given the publicity that has surrounded the Bill, the Bill’s long gestation, the careful consultation, the commitment that we have had from many organisations that they will support the Bill and the fact that it has a good measure of cross-party consensus, people will well and truly know about this legislation and about its import and impact.
My Lords, I thank the Minister for his reply and for his assurance that great attention will be given to publicity. I also thank him for the robustness with which he addressed a number of points. An important factor regarding the publicity is that people are aware of it and that they adjust their behaviour accordingly. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 [DPP’s consent required for proceedings]:
45: Clause 15, page 12, line 22, at beginning insert “(1)”
The noble Lord said: My Lords, this is an important issue. The Bill currently says:
“Proceedings for an offence of corporate manslaughter … may not be instituted … without the consent of the Director of Public Prosecutions”.
We say that it should be possible for a private individual to institute proceedings regardless of the approval of the Director of Public Prosecutions, which, in fact, is normally the case. It is very likely that aggrieved people will not simply go away, and the DPP could be in the firing line and could possibly find himself accused of protecting officialdom. We made that point at a previous stage but I should be interested in the Minister’s response to what we consider to be an important peripheral issue. I beg to move.
My Lords, the Government believe that requiring the consent of the Director of Public Prosecutions is an important part of the Bill. A key feature of this offence is that it will mark a particularly serious level of offending by an organisation. It is important that this truly is reserved for the worst cases and that the deterrent effect of possible proceedings is not reduced by very poor cases being brought against organisations.
Furthermore, potential defendants have been concerned that every work-related death will result in a charge of corporate manslaughter and that companies which pay proper attention to the management of health and safety will have their reputations damaged through manslaughter charges, even though the charges are bound to fail. Part of the reassurance that only the worst cases of health and safety failures will proceed to court is that the DPP must be satisfied that in every case the evidence supports a realistic prospect of conviction.
Requiring the DPP’s consent does not prevent private prosecutions but it ensures that such prosecutions will be able to proceed only if the two-stage test in the Code for Crown Prosecutors is satisfied; namely, that the state of the evidence is such that there is a realistic prospect of conviction and that a prosecution will be in the public interest.
As we have said before, where the allegation is manslaughter, we think that only rarely will the public interest test not be met, so the main issue will be sufficiency of evidence. We do not think that allowing prosecutions to proceed where there is insufficient evidence will be in anyone’s interest—neither the organisation’s, whose reputation will be tarnished unfairly, nor the family’s, whose expectations will be raised unrealistically.
By their nature, corporate manslaughter cases are likely to involve complex evidence about company structures and management, as well as about industry standards. We believe that the Crown Prosecution Service is best placed to assess whether there is sufficient evidence of the necessary standard. It is asking a lot to expect the families of victims to make that assessment objectively.
There is an argument that the prohibitive costs of bringing a private prosecution in such complex cases will act as a barrier to prosecutions and that requiring the DPP’s consent is unnecessary. It is, of course, true that bringing a private prosecution will be an option only for those who can afford it. In the history of work-related deaths, we are aware of two private prosecutions for manslaughter, neither of which was successful. However, in one case we understand that the person bringing the case—a man who owned a business—was bankrupted by doing so and in the other case the person bringing the proceedings appears to have been a millionaire.
Relying on the very high cost of private proceedings in itself is unsatisfactory. We do not think that ability to pay should become the criterion for whether a prosecution should proceed if there is no evidence to sustain it. The costs underline that private prosecutions are rarely a practical option and the requirement to obtain consent will operate in few cases. If the DPP does not consent to a private prosecution, that decision can be judicially reviewed and, for the vast majority of people, applying for a judicial review is going to be far more of a realistic proposition than pursuing a private prosecution, especially as legal aid is available for judicial review. There is also precedent in corporate manslaughter of a successful judicial review of a decision by the CPS not to bring a manslaughter prosecution. That case was then brought to trial by the CPS, which initially decided not to press charges, although again it was not successful.
I turn to conflicts of interests, which the noble Lord raised. Would they exist in cases against the Crown or in cases against the CPS? I start by quoting the honourable Member for Beaconsfield. In Committee in another place, Dominic Grieve put the argument very well. He said:
“I do not share the … view about the DPP being subject to political pressure. Never in my professional experience have I seen a hint of it. The DPP is a civil servant, but once he holds his office he cannot be removed other than for misfeasance or personal misconduct. For those reasons, I do not think that that is a live issue”.
I do not always agree with Dominic Grieve but on this occasion I certainly do. He has put the position very well. It is a poor argument that the DPP will succumb to pressure not to prosecute the Crown. It is not the CPS or the DPP who will investigate a case: that will be for the police. It will be the police who gather the necessary evidence and they will then present it to the CPS for a decision about charges. So the role of the CPS and the DPP, whether consent is required or not, will be to consider the evidence, properly presented by the police, and decide whether that presents a picture of gross negligence. That is a decision they will take independently as prosecutors.
The CPS, of course, comes under pressure at present from both sides in cases of manslaughter and many other cases. Defendants lobby in order to have charges dropped and victims and their families understandably press for prosecutions, sometimes with passion. But cases always have to be taken forward on the merits of the case not the pressure for or against prosecution. The Government cannot halt investigations or prosecutions simply because they are embarrassing. Furthermore, the process of judicial review will act as a safeguard, where any allegation of bias can be considered.
For these reasons, I do not think that requiring the DPP’s consent will reduce victims’ rights or lead to cases against the Crown being dropped when they should not be. In view of those arguments, I urge the noble Lord to withdraw his amendment.
My Lords, I thank the Minister for a very fair and comprehensive consideration of the issue which obviously concerns us. He was very reasonable in the points that he put. Despite our continuing concerns, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 46 not moved.]
Clause 16 [No individual liability]:
[Amendment No. 47 not moved.]
48: After Clause 16, insert the following new Clause—
“Convictions under this Act and under health and safety legislation
(1) Where in the same proceedings there is—
(a) a charge of corporate manslaughter or corporate homicide arising out of a particular set of circumstances, and (b) a charge against the same defendant of a health and safety offence arising out of some or all of those circumstances, the jury may, if the interests of justice so require, be invited to return a verdict on each charge. (2) An organisation that has been convicted of corporate manslaughter or corporate homicide arising out of a particular set of circumstances may, if the interests of justice so require, be charged with a health and safety offence arising out of some or all of those circumstances.
(3) In this section “health and safety offence” means an offence under any health and safety legislation.”
The noble Lord said: My Lords, concern has been expressed that the Bill might inadvertently lead to a reduction in the scope for prosecuting individuals on a secondary basis for health and safety offences. The point has been made that, if an organisation were convicted of the new offence, there might be a question of whether health and safety charges against the organisation arising out of the same incident might also be put to the jury. If that were not the case, it might preclude a verdict on any secondary participation by individuals in the health and safety offences.
We would certainly not wish this to be the case and have consequently tabled Amendment No. 48 to clarify that convicting an organisation for corporate manslaughter would not preclude a conviction of the organisation for a health and safety offence if that were in the interests of justice; we touched on this issue in some earlier debates. This would ensure that any secondary liability for the health and safety offence was kept alive. I know that secondary liability is a controversial issue, but we want to ensure that it is there for health and safety offences. It would not impose any new liabilities on individuals, but ensure that existing liabilities are not inadvertently reduced.
I hope that that clarifies the Government’s position and the drafting of the legislation. I beg to move.
49: After Clause 16 , insert the following new Clause—
“Limitations of proceedings
Proceedings for an offence of corporate manslaughter may not be instituted against an organisation if an action for damages for negligence would be time barred under the provisions of the Limitation Act 1980 (c. 58).”
The noble and learned Lord said: My Lords, the purpose of the amendment is to provide for limitation for bringing proceedings for corporate manslaughter. I make it as clear as possible that I am not suggesting that there should be a limitation period for manslaughter by an individual, but there are good practical reasons for distinguishing between the two offences.
It is of course unusual to have a time limit for serious crime, but corporate manslaughter is an unusual crime. It is based not on criminal intent but on the civil concept of negligence. In ordinary civil actions for negligence, there is a time limit of six years because it is simply not fair to ask people to defend themselves 10 or 20 years after the events giving rise to the claim. That is reflected in Article 6(1) of the European Convention on Human Rights, entitling a defendant to a fair hearing within a reasonable time. That applies to crime just as it applies to civil actions.
However, we are not concerned with the ordinary six-year time limit for actions for negligence. A special time limit applying to claims for negligence resulting in either personal injuries or death is contained in Section 11 of the Limitation Act 1980. That is three years, which is obviously less than six years. Yet that it is not from the events giving rise to the claim, but three years from the date of the plaintiff knowing that his injuries are attributable to the defendant, or his death if that should occur earlier. The special time limit applying in such cases is much more flexible than the ordinary time limit. If such a time limit is required in civil proceedings based on negligence in order to ensure fairness to the defendant, it must surely be even more applicable in the case of criminal proceedings based on precisely the same facts. How can it be fair or in the public interest that a company should be criminally liable when it is no longer under any civil liability in respect of exactly the same facts?
Those were the points I tried to make in Committee. I said that I would study the reply of the noble Lord, Lord Bassam of Brighton, which I did, but I did not find it satisfactory in all respects. He made two main points. First, he suggested that the time limit that I was putting forward was too short. However, in the case of corporate manslaughter the time limit does not start until the victim dies, even though that may be many years after the events giving rise to the claim. The Crown Prosecution Service then has three years after the death in which to bring the proceedings, so my time limit clearly cannot be said to be too short. Indeed, the reason I chose a limitation period based on the Limitation Act rather than a fixed period of five, 10 or 15 years is that it is much more flexible.
The noble Lord’s second point was that there is no time limit in cases of manslaughter where they are individual offences. That is right, but the circumstances are different. In the case of manslaughter committed by an individual, the victim dies at once, which is the most usual case, or within a very short time of the events giving rise to the claim. However in the case of corporate manslaughter, the court might, if this amendment is not accepted, be required to investigate the conduct of senior management many years after the events giving rise to the death. In the mean time, the senior management of the company would probably have changed, witnesses would be incapable of remembering the events or might be dead and the evidence would have gone cold in every respect. It is when cases of this sort are being investigated years after the event that the worst miscarriages of justice will arise. This is a simple and beneficial amendment. In ordinary cases, it would ensure a fair trial and in more extreme cases, it would obviate potential miscarriages of justice. It is not good enough simply to rely, as the noble Lord did, on the discretion of the Attorney-General or the inherent jurisdiction of the court. We need something in the Bill, and therefore I beg to move.
My Lords, I am sorry to have to disappoint the noble and learned Lord because I am not persuaded by his argument. I am sorry that he was not persuaded by the arguments that my noble friend Lord Bassam put when this was considered briefly towards the end of the Committee stage. I shall deal with the amendment shortly, but I expect that I will not add to the arguments that have been advanced, and the noble and learned Lord has already indicated that he is not persuaded by them.
As the noble and learned Lord acknowledged, the criminal law does not normally impose limitation periods on proceedings for serious offences. There is a limitation period for summary offences, but we do not have one in relation to serious criminal offences. It would be all the more surprising to create one in this case because we are not really creating a new offence, but are creating a variety of gross negligence manslaughter attached to a corporate body by adapting the current offence. As the noble and learned Lord recognises, there is no limitation period for the current offence of gross negligence manslaughter, notwithstanding that that is itself based on the existence of a civil law duty. So, there is no conceptual difference between those.
The noble and learned Lord makes a very fair point about the need, where possible, for prosecutions to be brought expeditiously, and, indeed, makes the point that there will be cases where Article 6 of the European convention may require that to be done and there may be sanctions imposed if it is not done. What that time is will depend on all the circumstances of the case. One has to think only of some of the tragic incidents that have occurred on the railways in recent years to realise the complexity of the investigations that may take place and therefore the time that may be needed in order to reach a proper conclusion about whether a prosecution should be brought. There are all sorts of reasons why that may be complicated—inquiries and so forth.
I do not fully understand and I respectfully do not accept the noble and learned Lord’s argument that in the case of an individual there is not a problem because the death will occur very quickly. I am not sure why it should not be the case, whether it is corporate or individual responsibility, that the death can occur shortly or some time later. I can see that there may be a case in relation to safety. The noble and learned Lord might have in mind asbestosis or something of that sort where it may be difficult to identify an individual who may be responsible at that point of time so that corporate liability may be the only one. But I would identify, as did my noble friend Lord Bassam in Committee, that there is a long stop—there is more than one long stop.
If it were right that it were not in the public interest to prosecute in a particular case that would be a decision which the prosecuting authority, whoever it might be, would have to consider. The court clearly has an ability to stop prosecutions if it considers that it would not be right because a fair trial could not be held. It is a high test. I freely acknowledge that, and it would not by any means necessarily prevent prosecutions taking place some time after the incidents in question, but the court would have to look at it. If there needs to be some protection and safeguard, for my part I would rather that it be that flexible safeguard, having regard to all the circumstances, than an unprecedented and effectively arbitrary time limit imposed simply on this sort of criminal offence. So, for those reasons which I hope that the noble and learned Lord will not find disrespectfully put, I cannot accept the amendment and would invite him to withdraw it.
My Lords, I am naturally disappointed by the response of the noble and learned Lord the Attorney-General. He has not really dealt with the beneficial results which would flow from the amendment. But there it is. In all the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Abolition of liability of corporations for manslaughter at common law]:
50: Clause 17 , page 12, line 34, at end insert “, and in any application it has to other organisations to which section 1 applies”
51: Before Clause 18 , insert the following new Clause—
“Power to extend section 1 to other organisations
(1) The Secretary of State may by order amend section 1 so as to extend the categories of organisation to which that section applies.
(2) An order under this section may make any amendment to this Act that is incidental or supplemental to, or consequential on, an amendment made by virtue of subsection (1).
(3) An order under this section is subject to affirmative resolution procedure.”
52: After Clause 19 , insert the following new Clause—
In this Act—
“armed forces” has the meaning given by section 11(1);
“corporation” does not include a corporation sole but includes any body corporate wherever incorporated;
“employee” means an individual who works under a contract of employment or apprenticeship (whether express or implied and, if express, whether oral or in writing), and related expressions are to be construed accordingly; see also sections 10(3)(a), 11(2) and 12(3) (which apply for the purposes of section 2);
“employers’ association” has the meaning given by section 122 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) or Article 4 of the Industrial Relations (Northern Ireland) Order 1992 (S.I. 1992/807 (N.I. 5));
“enforcement authority” means an authority responsible for the enforcement of any health and safety legislation;
“health and safety legislation” means any statutory provision dealing with health and safety matters, including in particular provision contained in the Health and Safety at Work etc. Act 1974 (c. 37) or the Health and Safety at Work (Northern Ireland) Order 1978 (S.I. 1978/1039 (N.I. 9));
“member”, in relation to the armed forces, is to be read in accordance with section 11(3);
(a) a partnership within the Partnership Act 1890 (c. 39), or (b) a limited partnership registered under the Limited Partnerships Act 1907 (c. 24), or a firm or entity of a similar character formed under the law of a country or territory outside the United Kingdom;
“police force” has the meaning given by section 12(1);
“public authority” has the same meaning as in section 6 of the Human Rights Act 1998 (c. 42) (disregarding subsections (3)(a) and (4) of that section);
“publicity order” means an order under section (Power to order conviction etc to be publicised)(1);
“remedial order” means an order under section 9(1);
“statutory provision”, except in section 13, means provision contained in, or in an instrument made under, any Act, any Act of the Scottish Parliament or any Northern Ireland legislation;
“trade union” has the meaning given by section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) or Article 3 of the Industrial Relations (Northern Ireland) Order 1992 (S.I. 1992/807 (N.I. 5)).”
On Question, amendments agreed to.
Clause 21 [Commencement and savings]:
53: Clause 21 , page 13, line 32, leave out from “force” to end of line 33 and insert “in accordance with provision made by order by the Secretary of State”
On Question, amendment agreed to.
House adjourned at 10.25 pm.