3rd reading in the Lords
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- My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Corporate Manslaughter and Corporate Homicide Bill, has consented to place her Prerogative and Interest, so far as they are affected by this Bill, at the disposal of Parliament for the purposes of the Bill. Bill read a third time. Clause 1 [The offence]:
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Lord HoyleLabour- Quote
- moved Amendment No. 1:
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Baroness Turner of CamdenLabour- Quote
- My Lords, I support my noble friend Lord Hoyle in his amendment. As we know, at Third Reading we try to concentrate on only tidying-up amendments and that is clearly what this intends to do. It is intended to provide clarity. It is not in any way a hostile amendment. We have made it clear throughout our discussion of the Bill that we are in favour of it, although we have one or two points to raise. I hope that my noble friend will feel able to accept the amendment in those terms.
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Baroness Scotland of AsthalLabour- Quote
- My Lords, I say to both my noble friends how much I appreciate the succinct way in which they have spoken to the amendment. It therefore causes me considerable chagrin to disappoint them, not least because they have been stalwart in their support for the Bill and resolute in trying to make it as fine an instrument as possible to deal with what has been the most terrible gap in our law in relation to corporate liability. I want to make it clear therefore that we have looked with the greatest care, first, at the anxiety that they have and, secondly, at the drafting of the Bill to see whether there is an ambiguity which would remain, with the mischief that they seek to address having not been dealt with. I assure them that we have looked very carefully at this issue. We believe that the current drafting means that their concern is not merited. I am happy therefore to give the fullest possible endorsement to the reassurance given by my noble friend Lord Bassam when he ably dealt with the earlier part of the Bill’s passage in relation to this issue. He said: “Inappropriate delegation of health and safety responsibilities will not be a legitimate defence to a charge of gross negligence. The courts will be able to consider how the activity was managed at senior level, and if the answer is that those at senior level failed to manage health and safety appropriately in respect of the activity, that will be potent evidence of failures at that level”.—[Official Report, 11/1/07; col. GC 135.] That is absolutely correct. I am happy therefore to set out that we do not believe that either of my noble friends need be concerned. I do not wish to speak at length, but simply to say that neither by acts of omission or commission will senior management be able to avoid their responsibility. I know that that is exercising my noble friends. Although I will have disappointed them, I hope that I have given them an assurance that we believe that the drafting of the Bill meets the mischief that they fear.
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- Lord HoyleLabour
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- My Lords, I wish I could accept the Minister’s assurances; I understand why she makes them. Nevertheless, I am extremely disappointed by the reply, because the amendment would only have strengthened the Bill. In view of what she said, to which I listened very carefully, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 18 [No individual liability]:
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- Baroness Turner of CamdenLabour
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- moved Amendment No. 2:
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Lord Clinton-DavisLabour- Quote
- My Lords, I support this amendment, provided that my noble friend asserts that the wording is incorrect but the spirit is fine. I want to help my noble friend to arrive at the correct result because responsibility in law for corporate manslaughter and homicide is overdue. It behoves the noble Baroness to spell out where individual responsibility lies. As far as I know—and I may be wrong—individuals would be held liable in the circumstances spelled out in this amendment. A member of senior management—which is defined—who has, “connived, conspired or colluded in the commission of an offence of corporate manslaughter or corporate homicide”, should be liable if he has so behaved. I cannot see any reason why, when there has been such an open breach of the law, a person should not be held liable. I invite my noble friend to define whether it is possible to prosecute such people under the present law. It is extraordinarily difficult to prosecute successfully and to hold individuals to account for very serious defaults, but it is not impossible to do so. On the question of evidence, it may be very difficult to come to this conclusion. But when penalties are envisaged in the circumstances that are spelt out here, it is inevitable that senior management will be held liable for their defaults. Should not corporate manslaughter and corporate homicide be elevated in the criminal lexicon? If not, why not?
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- Lord HoyleLabour
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- My Lords, I support my noble friend’s amendment, to which I have put my name. This is an opportunity again for the Government to think about this matter. I cannot for the life of me see why somebody who has, “connived, conspired or colluded in the commission of an offence”, should not themselves be liable. As we have said before, it is entirely new under this Bill that secondary liability does not apply. We feel that it should. Major disasters have occurred—indeed, a major disaster, which is still under investigation, occurred last week, with the rail accident in Cumbria. We must ensure that, if people in senior management positions are negligent, they are brought to book for ignoring what was a possibility. This is an attempt to get the Government to think again. Secondary liability was recommended by the Select Committee. I asked about this in Committee and still do not understand why the Government did not go along with it, but I hope that they agree with us on this amendment.
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Lord Wedderburn of CharltonLabour- Quote
- My Lords, secondary criminal liability was not raised until the Bill got to this House. The Government have been determined to exclude secondary liability from the Bill—why, I do not know, for all the reasons given by noble Lords who have spoken. I suspect that they will reject it again under this amendment, whose drafting, I agree with the noble Lord, Lord Clinton-Davis, needs to be looked at again. The problem is not this amendment but Clause 18. If the Government resist to the end having any individual secondary liability in respect of the deaths caused by homicide at the level defined in this Bill, the issue will come back to haunt them and there will be an amendment in due time to introduce normal rule-of-law secondary liability into the legislation.
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- Baroness Scotland of AsthalLabour
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- My Lords, I absolutely understand the passion with which each of my noble friends expresses their view. Over the past 10 years there have been only seven successful prosecutions for corporate manslaughter, which have all been against small companies, where it is easier to satisfy the requirements of the current law. It has also been possible to prosecute individuals when liability is clear and there is evidence to do so, as the noble Lord, Lord Clinton-Davis, set out. The problem has perennially been dealing with corporate responsibility, which is the thrust of the Bill. I understand the concerns that noble Lords share. The Bill is designed to provide a more effective means of attaching liability for manslaughter to corporate bodies and other organisations. It is not a proper vehicle for seeking to change the circumstances in which individuals are liable for criminal offences, either as primary offenders or through secondary liability. There is not a great deal that I can add to the arguments put forward by my noble friend Lord Bassam on previous occasions and I do not wish to detain the House unnecessarily from other debates. However, I would be happy to set out in brief the Government’s reasoning and I commend my noble friends for their ingenuity in drafting the amendment. There is copious evidence that the law takes a narrow and artificial approach to attributing liability for manslaughter to organisations. The common law offence of involuntary manslaughter has developed over time to include liability for gross negligence. That is tested objectively, by the reference to the duties of care that a person owes and whether their conduct falls far below this. However, the law of corporate attribution has failed to keep pace. We were reminded of this particularly in the failed prosecution of P&O Ferries following the “Herald of Free Enterprise” tragedy. Despite efforts by the Crown in proceedings following the Southall crash to widen the test for liability in common law, the courts declined to take that step. It is not in relation to individual liability that we have had the problem, it is in wider liability. We have before us a vehicle that will at last deliver the change that we want. The question of individual liability is not simply a derivative question from the new corporate offence but one of amending the existing framework; as such, it involves wider considerations than we are dealing with in the Bill. The Government do not consider that this Bill is the right place to tackle those wider, more complex issues and therefore have resisted extending the Bill to individuals.
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- Lord Clinton-DavisLabour
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- My Lords, does the Minister acknowledge that a member of senior management who has, “connived, conspired or colluded in the commission of an offence of corporate manslaughter or corporate homicide” would be liable under the present law or not?
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- Baroness Scotland of AsthalLabour
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- My Lords, one would of course have to look at the particular acts and omissions, but the types of situations described by my noble friends are likely under the current law to be caught by individual responsibility. As I have tried to explain, we have had difficulty getting the corporate responsibility recognised. It has always been perhaps too easy to identify an individual who has had responsibility for personal acts which are directly consequent on killing someone. You can get that in terms of manslaughter, but it is very difficult to change the corporate practice. Those are the issues that we are seeking to deal with. The amendment tries to sidestep the issue by describing individual liability as secondary liability, rather than seeking to establish a new offence, which the amendments at other stages have sought to do. I understand why that is. It does not seek to identify a new level of criminality; that remains gross negligence. What changes is how fatal gross negligence is identified within an organisation for the purposes of corporate liability. That is covered by the existing law on manslaughter for individuals, as I have tried to explain. If their culpability is less, then offences under health and safety law might be appropriate. I hope that I will be able to give my noble friends a little comfort. The noble Lord, Lord Wedderburn, said that there will come a time when these issues in relation to individual liability should and can properly be looked at; I agree with him. The passing of this Bill will not represent the end of the story for considering responsibilities and liabilities. A different aspect of that debate lies in the question of directors’ duties for managing health and safety, which the Health and Safety Commission has indicated it will come back to in due course. A Bill has also received its First Reading in another place that is intended to improve the framework of penalties for health and safety offences. We must wait to see the detail of that Bill and how it progresses, but the level of penalty for health and safety offences has been a concern for some time. The Bill that we are considering will represent a step change in the law dealing with corporate liability. That is an important and necessary change, and it will enable cases to be brought against some companies, and other organisations, that have not been possible before on the basis of corporate gross negligence. I know that that step is supported across the House and more widely. Real differences exist, and the question of whether and how the position of individuals should change will have to wait, perhaps only a little while, for another Bill. We should seek to build on the positive consensus around corporate responsibility, and although I understand my noble friends’ disappointment, I hope that that disappointment will be short-lived and they will be able to rejoice and celebrate with me about this important step that we have now been able to make in relation to corporate liability.
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- Baroness Turner of CamdenLabour
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- My Lords, I thank my noble friend for that very sympathetic response, even though she is turning down the amendment. We have dealt with some of the arguments before. We discussed the argument that the type of situation that I describe in my amendment is already covered by present law, and we pointed out that there had been very few successful cases, and my noble friend agreed with that. On the other hand, I was delighted to hear her agreement that this is not the end of the road. Other issues will arise that will require attention, and the Health and Safety Commission will no doubt consider alternative legislation to strengthen what already exists. I am very grateful for that. I am sorry that we cannot win on our amendment, but I am not really surprised, in the light of the Bill’s wording. I am delighted that it is not the end of the road, and I am sure that there will be further developments, because that will be necessary in the world in which we live. Situations are bound to arise where we will have to have some amendments to the law. In the mean time, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Baroness Scotland of AsthalLabour
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- My Lords, I beg to move that this Bill do now pass. Moved, That the Bill do now pass.—(Baroness Scotland of Asthal.)
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Lord HenleyConservative- Quote
- My Lords, I thank not only the noble Baroness, Lady Scotland, for taking the Bill through part of its passage, but particularly her colleague, the noble Lord, Lord Bassam, who was so ably assisted at earlier stages of the Bill by two of the law officers, the noble and learned Lord the Advocate-General for Scotland and the noble and learned Lord the Attorney-General. As we explained at Second Reading, we believed that there was a better way of going about this Bill, as my colleagues made clear in the Commons, whereby some use might have been made of health and safety legislation. Having said that, and having failed to persuade the Government of the virtues of those ideas, we made it clear that we were prepared to give the Bill a good passage, and the Bill has had a fruitful passage through this House. We are grateful to the Government for conceding three considerable substantial points following amendments tabled by my noble friend Lord Hunt of Wirral, who sends his apologies that he is not able to be here today. Those were: the inclusion of partnership, trade union and employers’ associations in the ambit of the Bill, the inclusion of the power to order a company to publicise its conviction, and the acknowledgement in the Bill that this new offence goes hand in hand with health and safety legislation. Again, they are all welcome additions to the Bill, for which we have been pressing since its inception in the Commons. I turn to the much bigger amendment, in the name of the noble Lord, Lord Ramsbotham, on deaths in custody. I remind the Minister just how overwhelmingly that amendment was passed, not only by this side of the House but also by the Cross Benches and the Liberal Democrat Benches. The Minister will know well from her discussions with her noble friend the Government Chief Whip how many of her own colleagues either supported that amendment, quietly abstained or voted with the Government with considerable misgivings. Given the overwhelming support for that amendment, I hope that we may have some kind of assurance that the Minister will do all she can to persuade her honourable friend the Home Secretary to consider it very favourably when it returns to the other place. If the other place wishes to overturn it, we on these Benches and others throughout the House would certainly wish to consider it further when it comes back to us.
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Lord RazzallLiberal Democrat- Quote
- My Lords, I echo the words of the noble Lord, Lord Henley, in thanking the Minister and her team for the way in which this Bill has been conducted. It is obviously a matter of regret for all of us that the Minister was unable to play any role in the Committee and Report stages of the Bill, but we now see her at Third Reading. I echo the words of the noble Lord, Lord Henley, with regard to the achievement of the noble Lord, Lord Bassam, in standing in at extremely short notice on the first day of Committee in the Moses Room, which was surpassed only by his achievement in opening the bowling for the Lords and Commons in Australia two hours after getting off the plane. I turn to the final point made by the noble Lord, Lord Henley. Before the amendment of the noble Lord, Lord Ramsbotham, was put to a vote, a rumour went round that if your Lordships insisted on the amendment the Government would abandon the Bill. Noble Lords on all sides of the House were alarmed by that rumour. Whatever happens to the Bill when it goes to the other place, and I suspect comes back here, as the noble Lord, Lord Henley, has indicated, that is a matter about which all sides of this House feel very strongly. I would therefore ask the Minister to assure us that, whatever happens, there is no question of the Bill being abandoned.
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- Baroness Scotland of AsthalLabour
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- My Lords, first, I add my voice to all who have thanked very warmly those who sit on these Benches for the support that they have given to the passage of the Bill in this House. I thank them particularly for having done so, as the noble Lord, Lord Razzall, indicated, at such short notice. There is no one I would rather have watch my wicket than my noble friend Lord Bassam and my noble and learned friends Lord Davidson and Lord Goldsmith. I believe that we have achieved a huge change to the law relating to corporate responsibility and have made a great difference to the safety and security of individuals at work for the future. Of course, I understand that we were not at one in relation to the issue of deaths in custody and how that matter should be dealt with. I can assure the House that consideration will be given to how we should respond to that. I should also assure the House that the Government were very committed to the Bill and that the other place will have an opportunity to have its say about the form in which it should pass into law. Those matters will be looked at very carefully indeed. However, we should celebrate the fact that this House has subjected the Bill to great scrutiny. It passes to the other place in good order, which will enable that House to give the Bill its acute attention. On Question, Bill passed, and returned to the Commons with amendments.
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