Amendments made: No. 3, in page 1, line 14, at end insert
( ) An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1)..
No. 4, in page 1, leave out line 16.[Mr. Sutcliffe.]
Good morning ladies and gentlemen. An hon. Gentleman is indicating that he would like to take off his jacket. As far as I am concerned, once permission has been given it is in order to remove jackets while I am in the Chair. I cannot speak for Mr. Benton, but I am sure that he will be equally careful of the comfort of members of the Committee.
I beg to move amendment No. 99, in page 1, line 20, leave out far.
Good morning, Mr. Gale. It is nice to start with a simple probing amendment. We want to probe the Government on two issues relating to the test whether or not an offence has been created. The amendment would make the test not so harsh and the offence less hard to prove. Given that the offence is very serious, the Minister might rightly say that the test whether it had been committed needs to be hard. However, can he elaborate on his thinking a little? Some correspondence has suggested that the test will be difficult for the prosecution to meet. Given that the purpose of the Bill is to ensure that, when corporations commit a serious offence that leads to the death of an individual or individuals, they can be held to account, the harder that we make that test, the more difficult it will be to prove.
I understand that we are discussing a probing amendment, but does the hon. Gentleman accept that, when we consider other aspects of the criminal law, particularly driving offences, it is well established that the driver should fall far below the required standard for a charge of dangerous driving, and simply below the required standard for a charge of careless driving? The test is therefore not unknown to the criminal law and it seems to work reasonably well.
I am grateful to the hon. Gentleman. He anticipates something that I was about to say, partly in defence of the Minister. It is important that we tease out the Governments thinking on the provision, given that it will be one of the key tests that are considered by juries when the offence is being prosecuted. The hon. Gentleman was right to say that the test is certainly well known in relation to driving offences, but therein lies the second point that I wanted to explore with the Minister.
The hon. Member for Rugby and Kenilworth (Jeremy Wright) might be an expert in such matters and may wish to intervene again, but I understand that a driving offence comes under the umbrella of civil law, whereas we are discussing the creation of a criminal offence. When the Law Society and the Association of Principal Fire Officers discussed the point with the Joint Committee, they expressed the view that another approach was possiblethat, rather than use the test of falling far below the required standard, which could seem unclear in some minds, it would be better to use the Adomako test, which defines a gross breach as something so grossly negligent as to be criminal. Both the Law Society and the Association of Principal Fire Officers thought that that might be a better way in which to deal with matters. However, most people who spoke to the Select Committee said, like the hon. Member for Rugby and Kenilworth, that the tests under the driving offences legislation are probably better understood. That said, I thought that it was right to start a mini-debate so that the Minister can be clear that we are getting the provisions right on a crucial point.
First, I apologise for the fact that my hon. Friend the Member for Beaconsfield (Mr. Grieve) is not here. He is travelling back from Northern Ireland and hopes to rejoin the Committee around 12 oclock or thereafterit depends on how his flight goes. I welcome this opportunity to speak from the Opposition Front Bench as guest spokesman, and I welcome you to the Chair, Mr. Gale.
The hon. Member for Kingston and Surbiton (Mr. Davey) seeks to address in his amendment the ease with which it will be possible to prosecute an offence under the Bill. Therein lies one of the big questions: are we aiming at a small number of significant cases, or are we seeking a wider application for the Bill? My understanding is that by deleting farwhich the hon. Gentleman conceded would be a small but far-reaching and significant amendmentone would have to prove merely that someone was negligent, rather than that he was grossly negligent. If our aim is to limit the Bills scope to a small number of serious cases, that distinction between negligence and gross negligence is fundamental.
The hon. Gentleman highlighted the House of Lords case of Adomako, relating to the law of involuntary manslaughteralmost gross negligence manslaughter. The test was whether, in having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances to amount in the jurys judgment to a criminal act or omission. That approach was referred to during the Select Committee discussions. We have already heard from my hon. Friend the Member for Rugby and Kenilworth about a test of falling far below a given standard. Although it could be said that those are two different approaches, a significant difference from what might be considered an appropriate standard still has to be shown.
The amendment would undermine the fundamental distinction between someone being negligent or grossly negligent. I fear that if we took that approachI understand that it is a probing amendment to tease out from the Minister the thinking on how the provision was arrived atwe could end up with confusion between manslaughter, whether the Adomako test or some other test denoting gross negligence were used, and corporate manslaughter or corporate homicide, which would use a much easier test. If we are using the concepts of manslaughter or corporate homicide, there needs to be some symmetry between the two approachesin other words, there has to have been some act that is so outwith the normal standards that we seek to punish it as manslaughter.
A different approach could be taken. We will come to amendments tabled by Conservative members of the Committee to probe whether it would be more elegant and straightforward in securing convictions and attaining certainty to take the same approach as is taken in health and safety legislation. We will discuss that when we debate those amendments. Nevertheless, it is helpful for us to articulate our approach now.
I understand the hon. Gentlemans motives for tabling the amendment, but in the context of limiting the scope of the legislation to a small number of serious cases and of providing symmetry between corporate manslaughter and manslaughter that would apply to an individual, I am not inclined to support the amendment, because it would confuse the two sides of the issue. I understand why he tabled it and the need to get clarity about the Governments thought processes.
The hon. Member for Kingston and Surbiton will already have gathered from my intervention that I am not wildly in favour of his amendment. Another reason that I am not in favour of it relates to the broader exemptions for various public bodies, the police service and the armed forces. Iand many of my hon. Friends, I suspectwill be arguing that those exemptions are drawn too widely and that it should be possible, given the safeguards within the Bill, to remove or to reduce some of them.
My fear about the amendment is that it would undermine that argument. It will be part of my caseand that of others, I am surethat we can be confident that if the jury were given the obligation to find that the gross breach was something falling far below what would be expected of the organisation in question, it would reach that finding only in a limited number of very serious cases, as my hon. Friend the Member for Hornchurch (James Brokenshire) says. That is the type of safeguard on which we would rely in order to say that the other exemptions can be drawn more narrowly. For that reason also, I would not support this amendment.
Good morning, Mr. Gale. I thank the hon. Member for Kingston and Surbiton for the spirit in which, through his amendment, he has tested the Governments thinking. I also welcome the hon. Member for Hornchurch on his guest appearance on the Front Bench. I am sure there will be many more such appearances in future.
We have had a useful discussion. We want a workable test, not one that is impossible to meet. However, for an organisation to be convicted of the new offence the relevant management failure must have been gross. That is defined in terms of conduct
that falls far below what can reasonably be expected of the organisation in the circumstances.
That means that companies will not be guilty of the offence on the basis of minor breaches of health and safety legislation, or when genuine efforts have been made but the appropriate standard not quite met. They will be guilty of the offence only when the conduct falls far below reasonable standards.
The new offence is aimed at the worst cases of corporate mismanagement. The threshold of gross breach is the one that currently applies in the law of manslaughter, as has been said by the hon. Member for Rugby and Kenilworth. We think that that remains the appropriate threshold for an offence of such seriousness. If the amendment were to be accepted, the threshold for the new offence would be the same as that for negligence or for health and safety breaches. That would not reflect the gravity of conduct that must attach to an offence as serious as manslaughter.
I cannot give the hon. Gentleman the exact figureswe can send those to himbut he is essentially correct: if the amendment were passed, that is what would happen. It would affect the severity of the test for gross breach that we are trying to apply.
The second question is: what is the organisations conduct being measured against? The requirement is that the conduct fell below what could be reasonably be expected of the organisation. That links the offence to objective standards, such as those set by safety regulators such as the Health and Safety Executive or the Food Standards Agency. It is reinforced through clause 9 of the Bill, which sets out factors for the jury to consider when assessing an organisations conduct. The hon. Member for Kingston and Surbiton was right to raise the case of Adomako, which reinforces our view on the test for gross breach, which is interpreted as conduct falling far below a required standard.
I hope that the hon. Gentleman will withdraw his amendment. We understand the nature of what was behind it and, as the hon. Member for Rugby and Kenilworth said, we will debate and further test our respective views on the other issues.
Order. For the benefit of less experienced members, I remind the Committee that when the Chairman calls the mover of the motion to wind up the debate, no further substantive speeches may be made, though of course it is always possible to seek to make an intervention.
I am glad that my probing amendment has been received in the spirit in which it was proposed. The debate has been useful in giving the Minister a chance to put the Governments thinking on record. He was not particularly clear about why the Government have chosen the test set out in the Bill rather than the Adomako test, but I shall not press that matter. I beg to ask leave to withdraw the amendment.
Amendment made: No. 5, in page 1, line 21, at end insert
( ) senior management, in relation to an organisation, means the persons who play significant roles in
(i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or
(ii) the actual managing or organising of the whole or a substantial part of those activities..[Mr. Sutcliffe.]
With this it will be convenient to discuss the following amendments: No. 100, in page 2, line 4, leave out a fine and insert one of the following penalties:
(a) a fine;
(b) a corporate community service order; or
(c) any sanction set out in an order laid by the Secretary of State, subject to the affirmative resolution procedure..
No. 32, in page 2, line 4, at end insert
(b) an admonition; or
(c) a compensation order..
No. 33, in page 2, line 6, at end insert
(7) Any penalty imposed under subsection (5) shall be notified by the court to the Registrar of Companies and the Registrar of Companies in Scotland..
Good morning, Mr. Gale. Three of the amendments in this group are in my name andthe other is in the name of the hon. Member for Kingston and Surbiton. They are intended to testthe Government on the range of punishments for the offence, which is clearly intended to be seen by the public as having a particular degree of gravity.
The report of the Joint Committee report stated, and I agree, that there should be a range of punishments to allow the widest consideration to be given to appropriate punishment of the offence in individual circumstances. Amendment No. 32 refers to compensation orders, which were the subject of a specific recommendation by the Joint Committee. There was some argument about the point, but in general the feeling was that compensation orders, or the possibility of making them, were appropriate. An example provided to the Joint Committee was that of people over the age of 18 who do not have dependants, whose deaths were said to be cheap. That is a glaring flaw in the system.
A compensation order is appropriate in cases of particular severity, in which there has been drastic loss to victims and their families. It is appropriate also that, because the offence will be rarethe Government have estimated that the number of prosecutions will be fewer than 10a specific entry be made in the register of companies. That entry should be public and open to anyone intending to invest in or deal with the company, so that such people are aware of the companys history and can check whether the company is a proper one with which they wish to have a relationship.
The amendments are testing amendments, but I hope that when the Minister responds he will say whetherthe Government have further considered the recommendations of the Joint Committee report, and whether they are prepared to consider a wider range of penalties, so that the courts can fulfil their role and penalise appropriately.
I welcome the amendments proposedby the hon. Member for Glasgow, North (Ann McKechin), Together with amendment No. 100, which stands in my name and that of my hon. Friend the Member for East Dunbartonshire (Jo Swinson), they give the Minister a chance to explain the thinking not just on the sanctions in the clause, but on development of those sanctions. On Second Reading, the Minister indicated that when Professor Macrory has finished his review of directors duties, and how they apply to the wider aspects of corporate legislation, the Government may wish to return to the matter, so it is particularly germane to have this debate now.
Amendment No. 100 offers a method by which the Government could, through the affirmative procedure, create another sanction through secondary legislation without waiting for space in the busy parliamentary timetable. Hon. Members might feel, quite rightly, that that is not the appropriate way to proceed, because adding sanctions needs primary legislation. My view is not hard and fast, but I wanted to give the Minister a chance to explain how the Government intend to proceed, particularly once the professor has made his recommendations and the Government have had a chance to consider them. Does the Minister intend to ask the Sentencing Guidelines Council to discuss the type and size of fines as well as any alternative penalties?
The amendments tabled by the hon. Member for Glasgow, North have a lot to commend them. We look forward to the Ministers response to them, because a compensation order has a degree of attraction. In amendment No. 100, the Liberal Democrats suggest a corporate community service order to tease out the type of innovation that the Government are looking for. We have not spelled out in the amendment exactly what a corporate community service order might be, and I am sure that we could have some fun thinking about it, but hon. Members will understand the thinking behind the amendment. We need to consider the matter afresh in light of the innovations respecting sanctions that we have seen in other aspects of the law. I hope that Professor Macrorys review will be wide ranging and innovative, and that the Government will seriously consider such new ways of imposing sanctions.
This is a helpful debate about the sanctions and powers available in relation to the Bill, although the comments of the hon. Member for Glasgow, North and the hon. Member for Kingston and Surbiton demonstrate that perhaps it should take place in the context of a more wide-ranging review of the approach to using criminal sanctions to deal with corporations. It is a welcome opportunity to raise the issue.
The concept of restitution is interesting, given that one of the reasons why we are promoting the Bill is to give some sense of justice to families who have suffered the loss of a loved one. Not only do they want justice and to see someone held accountable and responsible for the actions that led to the death of their loved one, but they want a sense that things have been put right. A fine certainly provides a punishment. If set at the right levels, we hope that it would suitably penalise the company concerned and bring an element of retribution into the punishment, as well as ensure that conduct and behaviour change so that such terrible accidents and events do not occur in future.
How can we make a company make amendsrestitutionfor the harm that it has caused? I have a great deal of sympathy with the approach that incorporates restitution. The reason why the matter should be part of a wide-ranging review is the difficulty of doing so in practice. Ultimately, for a corporation, one is not saying that somebody will personally and individually carry out the actions; the corporate entity is found guilty and it is therefore the corporate entity that must make amends. That is why issues of the practicalities make it slightly more difficult.
I welcome the hon. Gentleman to his position on the Opposition Front Bench. He speaks of the complex distinctions to be drawn between the individual and the corporate body, but does he not accept that an individual can be responsible on behalf of the corporate bodyfor instance, on matters of finance or the environment? Is there not a problem for all who are trying to resolve the difficultyit is almost a conundrumof whether a named individual can represent the corporate body?
The hon. Gentleman will appreciate that that is the reason why the Bill was introduced, and it was part and parcel of our debates last week about the nexus of the acts of individuals or groups of individuals and the acts of the corporate body. We are talking about different legal personalities; the corporate body is a separate legal person, even though its actions are directed by its board of management, other employees and senior officers. The hon. Gentleman will know that a charge of manslaughter could still lie against an individual as a consequence of his default in certain circumstances if it can be shown that he had acted in a highly inappropriate way. That is the present law, and it should certainly be respected.
It is an interesting conceptI hope we will have the opportunity to debate it in greater detailthat a corporate body could provide restitution or to put things right. The amendments would advance that debate and allow us to consider other waysa community award, a sum of money or some other activityof making amends or seeking to make particular changes. That is why I welcome the debate, albeit that the subject probably needs to be fleshed out and considered in the wider context rather than concentrating on the one specific offence. It could have wider application, which is why a more wide-ranging review would be beneficial; it could come up with suitable approaches to deal with such issues.
The hon. Member for Kingston and Surbiton suggests specifying other punishments in the new subsection (5)(c) proposed in amendment No. 100, but it would not be appropriate to do that through a statutory instrument. It is better done through primary legislation. I note that the hon. Gentleman said that he was not wedded to the approach suggested in the amendment, but that he wished to advance the debate to encompass creating flexibility and taking a different look at the way in which corporate bodies could be held accountable for their actions.
It is difficult at this stage to consider the matter in isolation, saying that we should take the approach suggested by the amendments. However, it is worth considering the wider aspects of the liability of corporate bodies. We should explore whether a more direct approach could be taken to providing restitution for individuals and families who have suffered as a consequence of the acts of corporate bodiesthat not only should corporations be fined but that some more general restitution should apply. However, that is a wider debate than the one before us today.
Does my hon. Friend consider that there should be an opportunity to take civil action against the body corporate? If such an opportunity is not readily available, might one be made available by amending the Bill?
My hon. Friend raises an interesting point about the civil remedies that might apply to a particular action or event. If somebody is killed as a consequence of a companys default, not only could action be taken under criminal law, as we are debating this morning, but a more general civil action make be taken and a claim of negligence be laid against an individual using the civil process and leading to damages or some other award.
Clearly, if a corporation has been found guilty of a criminal offence, the higher standard and burden of proof will applybeyond all reasonable doubt, or whatever the modern phraseology is. That test is a higher standard to meet than the balance of probabilities test that would apply in a civil action. Therefore, one would suggestthis is usually how it happens in cases where there is a criminal and a civil line of approachthat the criminal action should take place first. If the court finds against the defendant, a civil action will usually follow. It will hopefully be easier then for the individual to prove their case in the civil action.
I will be guided by your chairmanship, Mr. Gale. I respect your point and the latitude that you have kindly granted us thus far in this debate. I draw my comments on that point to a close.
The debate has been interesting. I am sure that hon. Members will be interested to hear what the Minister will say about any further review undertaken by the Government to ensure that corporations are seen to be held to account appropriately.
Before the hon. Gentleman sits down, will he answer a question? Some of us in the Government have raised the issue of corporate probation and have alluded to the Canadian experience in connection with the problem that we addressed earlier of whether an individual can be identified in a corporate case. Has he looked at that experience, and has he anything to tell the Committee about it?
I am grateful to the hon. Gentleman for his intervention in relation to other experiences. The corporate probation issue is interesting. I must confess to the Committee that I have not examined it in detail.
We need to examine approaches taken elsewhere to see what works. Ultimately, we want something enforceable and effective. When I look at sanctions such as the community punishment or service awards mentioned in the amendment, I question whether they will actually operate in practice. How would we ensure that they were complied with? Who would ensure it? We would be dealing with a corporate body rather than an individual, which would make it much less easy to identify whether somebody was in default and whether further action needed to be taken against them for that failure.
We must consider best practice to see what would be effective in providing a sense of justice and retribution as well as a sense of restitution, so that we get a rounded judgment. A fine is a particular way of doing that. It is a penalty against the company and might cause the company and its shareholders pain in the sense of financial loss, but that pales into insignificance next to the emotional loss suffered by the individuals and families who have lost a loved one in terrible circumstances.
It is quite helpful to have had this debate, although the matter is much more wide-ranging. It touches on so many issues. Should we allow registration of criminal judgments against companies at Companies House, as the hon. Member for Glasgow, North suggested, so that we can see the history of a company and its standards? They are interesting issues, but they must be viewed in a joined-up way. What should apply for less serious offences and what should apply for more serious ones? Should there be distinctions between the two? That debate is needed in its broader perspective and then, perhaps, we can return to how the specific punishments would apply in the context of individual criminal offences and what would apply in this case, compared with any other cases.
I should like to make a few brief remarks in support of my hon. Friend the Member for Glasgow, Northand, in general terms, of the hon. Member for Kingston and Surbitonwho has sought to open up the wider debate about what are the fit and proper mechanisms to change the safety culture, particularly in respect of the most serious events leading to the deaths of employees or members of the public.
This is an important debate. It is interesting that no hon. Member who has spoken so far has been opposed to the overall thrust of the measure. I have a slight problem with the last point that the hon. Member for Hornchurch made about looking at the issue in the round. Of course, he is right; we do need to see things in the round, but doing so is a recipe for having years going by while learned people in the legal profession deliberate.
Does not that make the point about why it is important to have a corporate manslaughter Bill, rather than amend the Health and Safety at Work, etc. Act 1974? This is why the Bill is necessary.
My hon. Friend the Minister does the job he has to do; but he is right. I know that he will not agree to the amendments, which take a slightly wider view, and nor would I, were I he.
The hon. Member for Hornchurch says that it would not be acceptable for us to create sanctions by the affirmative resolution procedure. It would be frightening to leave in the hands of the Secretary of State the power to create new penalties, the bases of which have not even been discussed in this Committee in general terms, never mind specifically.
I accept that the amendments need much more consideration, but the overall basis of the debate is important. As hon. Members have already said, if we are considering how to change cultures, it is important that we are aware of a consistent failing in our criminal justice system in respect of the recognition of the victims needs. Obviously, in this case the victims are the deceased, but the families of the deceased are often victims too. Most Members of Parliament have met people who have lost their loved ones in such tragic circumstances. People often tell me that they do not want financial compensation. That may sometimes be appropriate, but it is not always what motivates people. The families of those who have been killed in such circumstances are motivated by what they see as the total failure of the criminal justice system to recognise that something terrible has happened and that there was a responsibility on individuals or corporate bodies. The system seems to allow things to drift on for years. In that context, it is important that we consider a range of options that can bring the law to bear on those who allow such tragic circumstances to take place.
Like my hon. Friend the Member for Eccles (Ian Stewart), I shall continue to advocate the need for individual responsibility and therefore for penalties against individuals. However, as the hon. Member for Hornchurch said, there is a strong analogy in regarding the compensation process as something that can be built into the criminal justice system, rather than being part of a separate process between the criminal and the civil law. I am not aware, because I am not a lawyerhon. Members from Opposition parties have far more legal background than I do on which to base commentwhether this situation exists anywhere else in the law at the moment. But I cannot see, as a point of principle, why we would want to turn against that. This harks back to an old principle in English law and law still operating in different parts of the worldthe rather difficultly named blood moneywhereby compensation can be a way of expunging guilt. That may be appropriate in some cases. I want the full weight of the law to bear down on a guilty company. However, one of the problems that I have with a system consisting only of fines is that, if a company is in a parlous economic position, no wider social purpose is served by inflicting a large fine on that company if the fine puts in jeopardy the livelihoods of people who work for itpeople who in some communities may include family members of those who have lost their lives.
I rise to deal with the hon. Gentlemans point on whether this type of provision is available elsewhere. It is. Under the criminal law, courts are invariably invited to consider a compensation order alongside other penalties, though on the facts of individual cases that is rarely relevant because defendants usually cannot make compensation payments. That is not the case here and I agree with what the hon. Gentleman said about the necessity of compensation: it would be appropriate in the case of corporate institutions.
It seems to me that there is a widespread recognition that that could be a sensible way forward. My hon. Friend the Member for Eccles invited the hon. Member for Hornchurch to consider probation orders. Those orders are a little different from admonition ordersI understand from my hon. Friend the Member for Glasgow, North that admonition orders would impact on the corporate body specifically. As an extension, I wondered whether corporate tagging and such like would be possible, but maybe that is a flight of fancy. Admonition orders could have a real impact on corporate behaviour, in the sense that if a large national company had been the subject of corporate manslaughter legislation, that would be well known. We saw that with Transco, which still holds the record for a fine on a corporate body in this country for breach of health and safety laws. For large companies it would be obvious that they had behaved in such a way, and investors and others wanting to deal with the company would know it. For medium-sized and small companies, having something on the record could well serve as a disincentive, such that it could change corporate behaviour.
Last week, I quickly realised that I was in a room full of lawyers, so if I get things wrong I am sure that I will be corrected. My understanding of an admonition is that it is a legal term for a slap on the wrist. Does my hon. Friend think that that is appropriate in the case of loss of life?
I am not sure whether, as my hon. Friend the Member for Eccles muttered, my hon. Friend the Member for Dundee, West (Mr. McGovern) said lawyers or liars. That would be a matter for you to determine, Mr. Gale, and I shall not pursue it any further. My hon. Friends point is important, but I can think of circumstances in which different levels of penalty may be appropriate. I make no bones about my belief that in the most serious cases of corporate manslaughter individuals should bear responsibility, and if responsibility is clear and proven, should pay the same sort of penalty as would be expected in the case of serious motoring offences, such as reckless driving. Individual directors or employees would end up in prison, and that would be absolutely rightit would recognise the serious nature of recklessly causing death. An admonition order, or other penalties, may be appropriate as something that would stay on the record and would indicate that a company had behaved in a certain way, so that people dealing with the company in future would be aware that the company was a reckless one. Long after the headlines had disappeared from the local newspapers, that would still be there on the record.
I was pleased to hear my hon. Friends explanation and expansion of what we are attempting to do in Committee. We are addressing a range of sanctions to fit the key issue which, I am sure my hon. Friend the Member for Manchester, Central (Tony Lloyd) will agree, is for families to see justice done. The hon. Member for Hornchurch has mentioned that on several occasions. I therefore make no apology for pressing the issue to the boundaries, so that we can examine the range of available sanctions, including the potential for identifying a named person who represents the corporate body. It is important that we do not leave out what could be considered by families to be justice.
My hon. Friend knows well that I sympathise with the case that he is putting forward. I therefore refer to the concept of probation orders. They are similar to admonition orders. Used in the Canadian context, they impact on individual directors. In some circumstances, I would regard a probation order as being a ridiculously trivial consequence for a director, but there are times when it would plug a gap in the existing levels and range of penalties. I suggest admonition orders for corporate bodies, and probation orders for individuals and named directors. A director against whom a probation order was on the record would find it difficult to move from one company to another. Few companies would want a person with a probation record to chair their board.
Does my hon. Friend agree that a probation order would be appropriate when, for example, a company had little money with which to pay a fine, as a result of which the fine imposed by a court would be severely limited? Yet the court would want to ensure that the future practices of the company, particularly if it became more profitable, still did not escape an appropriate form of punishment.
My hon. Friend is right. In specific circumstances, individual servants of the company could be guilty of manslaughter even under existing law, whether or not we are discussing corporate manslaughter and individual liability. However, it could still be considered that the company and individual directors had general responsibilitynot enough for individual liability against those particular people, but enough to carry the test of corporate manslaughter. As my hon. Friend said, in some circumstances it would be appropriate for admonition and probation to be kept on the record. For the company to expunge the admonition or probation, it would be important for it to demonstrate that it had put its house properly in order and had changed its ways and corporate culture. That would serve as part of the armoury in driving through the change in health and safety culture that we want to achieve under the Bill.
I do not seriously expect my hon. Friend the Minister to accept the amendments today. However, I hope that he will not pour scorn on the concept and accept that there is merit in further examination of such proposals. As the hon. Member for Rugby and Kenilworth said, perhaps we can consider the non-used compensation powers under existing criminal law. He educates me. As I confessed last week, I come here for my legal education. Courts could decide whether to use that concept, admonition or probation in individual cases, particularly as a way in which to change culture and behaviour. Furthermore, an important part of what we want to achieve is a system that gives comfort to the bereaved and ensures them that they are being taken seriously by our judicial process.
This has been a useful discussion. I am sure that the Minister will want to reflect on what has been said and bring forward Government amendments. I was particularly impressed with the elegant nature of amendment No. 31with its simplicity but wide-ranging effectfrom the hon. Member for Glasgow, North. The hon. Member for Manchester, Central said that it might be withdrawn or that the Minister might not accept it if it were pressed to a Division. If it were pressed, I would be minded to vote for it on the basis that it would be a clear indication from this Committee that it was serious about asking the Minister to fill in the detail.
If the Minister were minded to consider amendment No.100, I would suggest a few amendments. It refers to
one of the following penalties.
There is potential merit in referring to one or more of those penaltiesthat is to say, a fine in combination with another element.
I was also concerned about corporate community service orders. I think I understand what that meansin terms of restorative justiceand am supportive of it. However, if the Minister were to add more detail, we would have a closer definition of exactly what that entails.
In relation to paragraph (c), there might be benefit in putting more details under the potential sanctions. One of the greatest sanctions on a corporate is to damage its brand, perhaps more so than a financial penalty. For example, if a soft drinks company were prosecuted and forced, for one year, to print on every soft drink can that was produced that it had been convicted, that would be both a strong sanction and a preventive measure.
I did not fully understand why the hon. Memberfor Glasgow, North had not combined amendments Nos. 31 and 32. However, that might be my inexperience of this place or an indication that the hon. Lady was hoping that if both amendments were not passed, amendment No. 31 might be.
I add my congratulations to hon. Members for their contribution to what are, as has been said, probing amendments that test the Governments view on sanctions. I am happy to consider many of the points that hon. Members have made this morning in the spirit of what we are trying to achieve, namely to change the corporate culture.
As this group of amendments suggests, it is vital that the new offences of corporate manslaughter and corporate homicide are accompanied by appropriate sanctions. We cannot imprison a company, so it is vital that the penalties for the new offence properly punish the convicted organisation and sufficiently deter them from future offending.
It is even more important, as my hon. Friend the Member for Eccles says, that the families involved see that justice is being done. My hon. Friends the Members for Manchester, Central and for Eccles are consistent in their views about the issues affecting individuals and I am sure that we will return to those as we go through the other clauses.
As these amendments make clear, there is some concern that fines are not enough. However, the courts are showing increasing willingness to hand down severe penalties in serious cases of health and safety breaches. Last year saw the highest ever fines against a railway company in relation to Hatfield when Network Rail was fined £3.5 million and Balfour Beatty, in another area of the industry, was fined £7.5 million, and, as has been said, Transco was fined £15 million for health and safety breaches.
Fines for the new offence will vary enormously according to the circumstancesthey will need to reflect the seriousness of the incident and the size of the company concerned. However, we expect the courts to take the new offence very seriously. The hon. Member for Kingston and Surbiton is right that the Sentencing Guidelines Council will be issuing guidelines for the new offence.
However, the fine is not the only sanction that will arise out of the new offence; it will be coupled with the censure of a very serious criminal conviction. The Bills purpose is to make it easier to prosecute complex organisations when their gross negligence causes someone to die, so the seriousness of the conviction will mirror the gravity of the offence, which has not been the case for complex organisations prosecuted under current law. That is the driving force behind the Bill, and it is why we differ from the Opposition on amending the 1974 Act.
Nevertheless, we recognise the concern that financial penalties alone might not always be enough to change undesirable business behaviour. For that reason, the Government have commissioned a comprehensive review, led by Professor Richard Macrory, of existing penalty systems for corporate offences. The review team is consulting on a range of proposals for more innovative penalties for regulatory offences. It is also considering the use of a wider range of sanctions in the criminal courts.
Amendment No. 100 proposes corporate community service orders, which I was interested to hear about. A similar approach, in the form of corporate rehabilitation orders, is under consideration in the Macrory review. The sort of order that Professor Macrory has been considering would enable the court to require an organisation to undertake specific activities. A company might be obliged to provide extra personnel training in health and safety matters or to undertake some reparative activity within the community. In the consultation paper he published in May, he suggested that compliance with the order would be monitored and the company would be returned to court if it failed to observe the terms of the order.
The alternative sanctions under review offer some interesting avenues for the future, and the Government are looking forward to the publication of Professor Macrorys findings this autumn, but further work and consultation will be needed on the practicalities of any recommendations made by the review. It is not simply a case of granting courts new powers. For example, detailed work would be needed to give courts frameworks for setting rehabilitation orders and to decide how compliance would be monitored. Clearly, the issues go wider than corporate manslaughter. The Government will consider sentencing for corporate offences in the light of the Macrory review findings.
The Minister has rightly identified the need to make a full assessment of how the orders would be enforced, but would he also say that it is important to look at the cost implications of monitoring and enforcing the orders? In criminal law, we have seen the extra pressure placed on the probation service when extra orders are introduced. It would be unfortunate if such cost implications were not considered in this context also.
I am thankful for the hon. Gentlemans intervention. That is the very nature of what needs to be considered. It will come as no surprise to him that the Home Secretary is keen to ensure that we consider the cost aspects of implementation. It is a fair point across the criminal justice system. He makes it well, and I thank him for it.
Would not one solution be to ensure that any fine that accompanied one of the new, innovative orders was sufficient to meet the Governments monitoring costs?
That is one possible solution. Clearly, we would have to consider the implications. I think that that is why the hon. Member for Rugby and Kenilworth said that we need to look right across the piece to ensure that we are not creating another problem by solving one problem in a particular way.
The other proposal put forward in amendmentNo. 100that the Bill should provide for sanctions to be identified and introduced by affirmative orderis an interesting one. However, I do not think that it is wise to delegate such a wide power in that way. As I have said, the Government will consider carefully how to take forward the proposals made in the Macrory review. Any changes to sanctions for corporate manslaughter will be made in that wider context. It is not necessary to provide for it in the Bill.
I turn to admonitions. As my hon. Friend the Member for Glasgow, North said, they are dispositions in Scotland only. It is difficult to envisage circumstances in which the conduct of an organisation would be grave enough to merit a conviction for homicide but the appropriate sanction would effectively be a formal reprimand. Nevertheless, if there are such circumstances, it is already possible under section 246 of the Criminal Procedure (Scotland)Act 1995 for a court to dismiss with an admonition any person convicted by the court of any offence, and that would include organisations convicted of the new offence of corporate homicide. Clause 1(5) will not prevent use of the disposal, and there is therefore no need to make special provision in the Bill.
I agree that the courts should be able to make compensation orders in appropriate circumstances. I am satisfied that the courts in England and Wales already have that power. Under the Powers of Criminal Courts (Sentencing) Act 2000, the criminal courts can award compensation orders against a convicted defendant for any personal injury, loss or damage resulting from an offence. It applies to corporate defendants in the same way as it does to individuals. There is therefore no need to make specific provision for that in the Bill.
However, we do not expect that compensation orders will often be made in corporate manslaughter cases. The orders are designed for straightforward cases in which the amount of compensation can be readily and easily ascertained. Where someone loses their life, assessing the appropriate level for the compensation order would be relatively complicated. In practice, it might be more appropriate for compensation to be considered in the civil courts, which have the expertise to assess the extent of damages.
I am aware that in Scotland the position is different. Under section 249(4) of the Criminal Procedure (Scotland) Act 1995,
No compensation order shall be made in respect of...loss suffered in consequence of the death of any person.
However, I understand that the Scottish Executive are currently considering a report from the Sentencing Commission for Scotland on financial penalties, including compensation orders. As part of thatwork, the Executive will be looking at the effect of section 249. I will draw the comments made during this debate to the attention of the Minister for Justice.
The issue of corporate probation has been raised, particularly the position in Canada. I am very interested in those proposals, and will be considering during debate what lessons can be learned from them and what can be done. I will consider the innovative sanctions to which hon. Members have referred.
I am ever grateful for my hon. Friends warnings about what he proposes to do. I will consider it with a great deal of interest.
Amendment No. 33, tabled by my hon. Friend the Member for Glasgow, North, dealt with what could be done to affect a companys brand, including registering at Companies House. I do not think that the idea is quite right as it is set out in the amendment, but there are possibilities to consider, and I will be happy to do so during debate.
This has been a useful debate that has shown the genuine attempt by all parties to come up with solutions. More work needs to be done. In that spirit, I urge hon. Members not to press their probing amendments.
I apologise to the Committee for rising again, but there is a substantive point that I failed to mention in my earlier remarkshow sanctions would apply to public sector organisations. It is important that we discuss it. Professor Macrorys view, as I understand it, relates primarily to private sector corporations. The Bill is intended, as I believe we will discuss at length, to apply to bodies in the public sector. That is a concern, because fines on a public sector body, if that body provides an important public service, could hit the wider community and be almost a community punishment for something that the public sector managerial team got wrong. The Treasury might decide that it did not want a cutback in that public service and make good the money taken by the fine. Hon. Members will see the conundrum in simply applying fines to public sector bodies.
I hope that the Minister will explain the Governments thinking on the matter, because innovation is clearly needed. Obviously, there are other forms of accountability for public sector bodies. We shall have such debates when we discuss Crown immunity and the various exemptions under the Bill, but the Minister should not allow those types of accountability system to be seen as a sanction in the context of the Bill. There needs to be innovation in respect of sanctions and public sector managers. Clearly, peoples reputations and careers can sometimes be hit, but the mistakes that I have seen made by public sector managers do not seem to have affected their careers. Indeed, they have often been promoted to other bodies in other parts of the country. Public sector bodies can sometimes get away with it and, if the whole purpose behind the Bill is to make sure that people do not get away it, that the victims of gross negligence and their families receive retribution and that there is a feeling that justice has been done, we need to be innovative in such areas, too.
In general, I support what the hon. Gentleman is saying, but he needs to be careful when suggesting that the highly insulated public sector is radically different from large corporate bodies, for example. Frankly, the idea that shareholder power impinges on the decisions of the most senior captains of industry is a myth. The degree of insulation in large private companies is equivalent to that in public sector companies. He should not push the public sector-private sector difference too far. That is not the position. The difference concerns those who need other spurs to make sure that their behaviour conforms to what is set out in the Bill.
I certainly did not want to give that impression, so I am glad that the hon. Gentleman has enabled me to put that on the record.
The fines on a corporate cannot easily be passed on to the consumers, unless they have monopolistic power. It is hoped that, in a competitive market, fines will affect the profits of the company and, thus, hit the shareholders in some way. As the hon. Gentleman implies, whether or not the fines hit the directors would depend on whether the shareholders wreak their retribution for lower profits as a result of the fine. My point in wanting to extend the debate a little longer than I had intended originally is to show that that type of mechanism does not work as well in the public sector. I am not suggesting that the public sector is insulated because, as the Minister and councillors will be aware, when a public sector body has behaved badly there are often political results and great embarrassment, and rightly so. I am still not convinced, however, given this debate and what the Bill is trying to do, whether that is sufficient. I should be interested to know whether there is some thinking in the Ministers Department about how we can be innovative with respect to public sector bodies.
In no way did I wish under amendment No. 100 to give the Home Secretary the power to produce sanctions under such a procedure. I wanted to tease out from the MinisterI am not sure whether I didwhat sort of timetable he proposes to give to the House. Yes, we have the view of Professor Macrory and that of the Sentencing Guidelines Council. The hon. Gentleman was right to say that there will need to be a serious reflection on the practical implications of new types of offences, but given how close that is to what we are debating now, it is sensible that the Committee hears what plans the Government have in mind.
As for how we would approach the matter, we could do so through secondary legislation and the affirmative resolution procedure at the appropriate time when we have looked at the various issues that I outlined earlier in respect of the Macrory proposals. Such matters do not have to be outlined under the Bill. As the hon. Gentleman said, we would not want the powers to be so wide-ranging. When we reach that position, we shall hold the appropriate discussions.
On the public bodies issue, the Bill removes Crown immunity. We shall debate the extent and the appropriateness of that later, but I am sure that there will be an informed and detailed discussion on the way in which the Bill deals with public bodies. Fines are already available in relation to public bodies, in so far as many local authorities face fines for corporate offences, and I am not against innovative ways of dealing with them, because it is important that Crown bodies do not escape sanction for what is a serious offence. There is the issue of recycling of funding if public bodies are fined, and I shall be happy to examine matters in greater detail during the passage of the Bill, and to discuss matters with Committee members. With that in mind, I would ask that the amendment be withdrawn.
We have had an interesting debate, and it has been good to see some degree of cross-party consensus on the need to consider a wide range of penalties, so that the courts are not limited in their ability to impose appropriate sanctions in each case. I welcome the Ministers comments about the possibility of a corporate rehabilitation order, which has been mentioned by the hon. Member for Hornchurch. To some people it may sound similar to the principle of corporate probation, but it is worth considering, though it needs to be properly tested, and examples and enforcement in other jurisdictions should be considered. Nevertheless, I believe that an essential part of the range of penalties that needs to be on offer is that the courts be able to retain some sort of control over companies for a period, to ensure that practices change. That should happen either now, in the Bill, or, in light of the Ministers comments, after the Macrory review results are known.
On amendment No. 32, I accept the Ministers comments on admonition. Realistically, admonition would happen only if the victim were a direct relative of a companys directors, and if the company had very few assets. I appreciate the Ministers comments that the power already exists, however.
I accept the Ministers comments about the law in England on compensation orders, and that that penalty is already available to the courts, but that is not the case in Scotland. Regrettably, the level of damages in Scottish civil cases has historically always been lower than the English average. So the issue of compensation orders is importantparticularly, as I mentioned, in the case of single people with no dependants, for whom the level of damages that can be expected in a civil court may be very small. If a company has been so grossly negligent as to deserve a conviction for corporate homicide, it is appropriate that the penalty constituted by a compensation order is available. Will either the Minister, or the Advocate General, Lord Davidson, make a direct submission to the Sentencing Commission for Scotland on that point, and request that the commission consider the matter when it makes its final report? Obviously it will have to wait until enactment, but it is important to flag it up now, because consideration of the Bill for Scotland has happened very quickly and it may well be that the members of the Sentencing Commission are not fully aware of the implications of the Bill.
On amendment No. 33, I am pleased that the Minister indicated he would make some further comments later. Putting notices in the register of companies is a very important sanction that would have a salutary business effect on some companies. As was mentioned by the hon. Member for Hornchurch, it may be appropriate not only for manslaughter and homicide but for other serious offences. In my own constituency, a company was convicted of selling weapons of torture, and I regard that as a serious offence that would be worthy of note in the register of companies.
I welcome the spirit in which the Minister has addressed Members concerns today. I certainly hope to see further progress as we go forward in the Bill, and I am sure that my hon. Friends will be raising the question of individual liability. That is an important matter which, as they say, has to be considered as a separate issue. I beg to ask leave to withdraw the amendment.
New clause 2Amendment of Health and Safety at Work etc. Act 1974
(1) The Health and Safety at Work etc. Act 1974 (c.37) is amended as follows.
(2) After section 33 insert
33A Offences committed by corporate body etc.
(1) Any failure by
(a) a corporate body,
(b) an unincorporated body,
(c) a department or other body listed in Schedule 1 to the Corporate Manslaughter and Corporate Homicide Act 2006 (c. ), or
(d) a police force, to discharge a duty to which it is subject by virtue ofsections 2 and 3 of this Act whereby a persons death is caused shall be an offence.
(2) The offence under this section is called
(b) corporate homicide, insofar as it is an offence under the law of Scotland.
(3) A body corporate or unincorporate that is guilty of corporate killing or corporate homicide is liable on conviction on indictment to a fine.
(4) The offence of corporate homicide is indictable only in the High Court of Justiciary.
(5) The offence of corporate killing is triable only on indictment...
Amendment No. 74, in title, line 2, leave out manslaughter and insert killing.
The new clause tests the approach being taken by the Government in relation to the Bill to establish whether it is the correct one and whether there may be more elegant and effective ways of addressing the issues before us. At the outset, my hon. Friend the Member for Beaconsfield said that he aimed to provide a simpler alternative, although he noted that he would not ruthlessly pursue that objective, and I will reflect my hon. Friends approach.
However, it is worth taking a step back and testing whether the line that we are taking is appropriate and whether there are other ways of addressing the concerns that we have debated. The Health and Safety at Work, etc. Act 1974in particular sections 2 and 3is the starting point for the new clause. It incorporates duties on employers to ensure that, so far as is reasonably practicable, the health, safety and welfare at work of all of their employees is protected and that they conduct their undertaking in such a way as to ensure thatso far is reasonably practicablethe persons not in their employment, who may be affected thereby are not exposed to risks to their health or safety.
Building upon those general dutiesestablished under existing health and safety lawthe new clause take this established law as the starting point, and applies it to a situation in which a specified organisation or body fails to discharge the general duty set out in sections 2 or 3, resulting in a persons death which constitutes an offence. There is merit in examining this approach. We have seen from our debate thus far, the challenges and difficulties of seeking to frame the legislation within the concept of manslaughter, and it may be more effectivemore elegant and easierto create an aggravated offence under the existing Health and Safety at Work, etc. Act, which will reflect the gravity of the matters before us.
Will the hon. Gentleman clarify what the impact of the new clause will be? As I read it, the new clause would do nothing more than the existing Health and Safety at Work, etc. Act, except to give the label of corporate manslaughter in England and corporate homicide in England, Scotland, Wales and Northern Ireland. Under the current law, any failure by any of the organisations as listed would already be a breach of the duties under the Health and Safety at Work, etc. Act. Although the label is different, the fact that on conviction or indictment the organisation is liable to a fine is equivalent to the existing legislation. I am not clear how that provision differs from current legislation. Perhaps the hon. Gentleman would clarify the way in which, apart from the labelling, it differsI do not dispute that labelling can have some importance, but it is not a huge change.
The hon. Gentleman makes an interesting point, but what are we changing by virtue of this corporate manslaughter Bill? We are effectively creating a new offence with a title of corporate homicide or corporate manslaughter. The penalty that is leviable in relation to a breach of the terms of the Bill would be a fine equivalent to provisions under the existing health and safety legislation. That is why, in my initial comments, I was talking about stepping back to consider the changes we are seeking and to find out whether there are more elegant ways in which to take it forward. I will listen to further comments and consider whether I can explain that thinking more fully.
In essence, this is the nub of what we are trying to achieve. If the hon. Gentleman reflects on the previous debate on the needs of victims and, in a sense, the needs of society more generally, he will appreciate that there is something qualitatively different between causing serious injury, for example, and causing death. That is recognised in other areas of the criminal law. As with other aspects of criminal law, we now say in the Bill that creating a different offencecausing someone to die through recklessnesswith the title of corporate manslaughter would mean having a different process for taking prosecutions forward. I do not mean that the evidence would be examined differently, but there would have to be separate tests to determine whether an offence constituted corporate manslaughter. I am not clear whether amending the 1974 Act would have the same impact as a social sanction.
We are seeking to examine this provision in terms of the need for justice to be seen to be done. I have reflected on that in many contributions to the Committee thus far and I believe strongly that that needs to be addressed in relation to this matter. If someone dies as a consequence of some failure by a company or one of the specified bodies to which this legislation would apply, there should be suitable admonition and a recognition that we wish to punish that and treat it seriously.
It is not that the health and safety at work legislation is not serious, because breaches are serious, but peoples perceptions of it have not, for whatever reason, gained the level of standing that the criminal sanctions that we have been debating thus far have achieved. The fundamental purpose in creating the aggravated offence that we are talking about is to underline how seriously such breaches are taken by making them constitute a separate offence and to recognise the huge damage caused by a failure of the breach of duty undertaken by the company resulting in an individuals death.
I am following a different line of thought on how to address the failure and give it suitable standing and status to ensure that people feel that justice has been achieved by virtue of the mechanism. The broader framework of the Bill underlies what we are trying to achieve. We are seeking to change the way in which corporate entities and organisations undertake their business and to prevent such breaches happening. Clearly, prevention is the most fundamental issue. However, if an event were to result in somebodys death, there should be suitable punishment.
In many ways, the Health and Safety Executive, which monitors and prosecutes such offences, is the appropriate body to take such issues forward by putting the evidence together and ensuring convictions. We feel that in the context of trying to cure the evils before us and seeking to change the corporate environment as well as providing a sense of justice, an alternative mechanism could be to create the aggravated offence of corporate killing or corporate homicide within the Health and Safety at Work, etc. Act 1974. That would provide a clear and understandable framework.
We have debated the problems that might arise from mismatches between offences under the Health and Safety at Work, etc. Act and the Bills corporate manslaughter offences. It would provide an elegance and simplicity of approach, as well as certainty and the elevated nature of the offence before us, to specify the offence in the health and safety at work legislation. That would give it sufficient standing and status and ensure that companies appreciated and recognised their failure, that the community was seen to have received justice and that punishment at an appropriate level was properly maintained.
The Minister has given examples of fines that have been levied partly under existing health and safety at work legislation. Parallels can therefore be drawn. Our question is whether we are taking the right approach. Is there a more effective approach to achieving what we want from a change in legislation?
Does my hon. Friend agree that there is another potential merit in taking this approach instead of the Governments? In many cases, the duties to which the bodies described in new clause 2 are subject by virtue of sections 2 and 3 of the Health and Safety at Work, etc. Act are wider than the duties described in the Bill. We might in fact be able to encompass more examples of bad practice thanthe Bill.
My hon. Friend makes a valid and effective point about the scope of the legislation. Sections 2 and 3 of the Health and Safety at Work, etc. Act frame quite broadly such duties regarding the safety and welfare of employees and state that persons not in employment should not be exposed to risks to their health and safety. These are known concepts that have been tested before the courts, and it is understood what they mean. They probably have broader application in the context of the Bill. It is interesting that the Bill seeks to draw parallels by saying that breaches of health and safety legislation will be relevant factors for the jury to consider.
The Bill accepts a link between breaches of duties established within the Health and Safety at Work, etc. Act and offences under the Bill. We seek to take that a step further, asking whether it is the right approach. If that approach were taken, would it be more effective and result in more successful prosecutions? Would it create that change in culture that we have discussed and all of us would like to achieve? In tabling the amendments, we are asking whether it is more effective.
Does my hon. Friend agree that two additional benefits of new clause 2 might be that prosecutions would be brought faster andspeaking as a non-lawyerthat in the event of an accident, we would not be lining the legal professions pockets in quite the same way that we might if the two pieces of legislation ran parallel?
Although I am a non-practising solicitor, I would be pleased to provide ways to cut lawyers out of the process or reduce the costs of ensuring speedy justice. I am no practitioner in the area of health and safetyalthough my hon. Friend the Member for Beaconsfield isso it is difficult for me to form a judgment as to whether a case under health and safety legislation would be quicker than a criminal case. However, as we have heard this morning, the Bill as framed will cover only a limited number of cases12 to 15 a year is the number being talked about. The proposed offence would cover more than that, and in so doing might create a greater sense of justice and corporate social responsibility, which we all hope can be achieved.
I would welcome some means of introducing clarity and simplicity in the law to achieve just outcomes at the end of the day. That is why we believe that the approach outlined in the Oppositions amendments bears consideration, to see whether they can create that sense of justice and purpose that we all want.
New clause 2 and amendments Nos. 74 and 75 are very welcome. The only surprise for me is that the issue was not raised in great detail on Second Reading, although to be fair to the hon. Member for Beaconsfield, he talked about an amendment to the Health and Safety at Work, etc. Act 1974, but did not relate it to the offence of corporate killing.
That is a significant development in thinking on the Conservative Front Bench. I understand from private discussions with the hon. Gentleman that the thinking goes along this line: the Governments approach to how the offence would be committed is rather narrower than it would be if it were linked with health and safety, and would create other new tests, whereas health and safety legislation is clear to companies and, I hope, increasingly clear to public sector bodies. However, the hon. Gentleman was anticipating the Governments concern about that, namely that the offence would not have the same effect on a companys reputation and image, and would not send a clear message to the victims and the public that a serious offence had been committed.
As I understand it from the argument that the hon. Member for Hornchurch made, using the new term of corporate killingan idea for which I have a great deal of sympathywould enable a prosecution under the 1974 Act to carry a greater stigma and force, and separate the offence from a criminal offence under manslaughter legislation. That idea has some merits and the Government have a case to answer. My only surprise is that Conservative Front-Bench Members are going that far, because the proposal would extend the number of cases in which companies would be found guilty of a serious offence. I welcome that shift, because that thinking has not always held on the Conservative Front Bench.
The hon. Gentleman raises an interesting point that I had not thought about. There has been a great deal of consultation on the Bill with a number of stakeholders, most notably the business community. To probe the Opposition, I wonder whether they have had a great deal of debate with the business community on their proposal.
I clearly tempted the Minister by introducing a political edge to this debate. Obviously I cannot answer for the hon. Member for Hornchurch and his colleagues, but I am sure that in winding up he will tell us about an extensive consultation, because I would expect that from him and his hon. Friends.
We return to the core part of what is proposed. I hope that the Minister will not dismiss it out of hand, because it is a serious point and is well made. It may be a Second Reading point, but it might have merit. I wonder whether the Minister will be able to tell us that a serious amount of it has been undertaken but that it has been rejected for good reason.
Although I do not completely commit myself or my colleagues to supporting it, it is an interesting development and I look forward to the Ministers response.
At the outset, however, I must say that the hon. Member for Rugby and Kenilworth (Jeremy Wright) made an interesting intervention about the breadth of the legislation. My hon. Friend the Minister may want to reflect on that. Although the hon. Member for Hornchurch put it in a challenging waythat is a compliment, not criticismthe Committee seeks to improve our health and safety culture, and we want any new legislation to be commensurate with what we already have but to recognise its faults.
In light of that, I must point out that the fault in the past has not been an absence of legislation on corporate manslaughter; we have always been able to prosecute incorporated bodies, at least in principle. The problem is that existing legislation has been ineffective because the liability test proved to be too high in the most celebrated cases; that is what has led to the demand for legislative change. That is an important point. If we were starting now, I would accept that. If we were creating a new legal framework, people may well start off on a different basis: health and safety legislation might run from the beginning to the very end of the process; that might be one way of doing things, and I can understand the logic of such simplicity.
I know that the hon. Member for Beaconsfield has great expertise in such matters. At some point, Mr. Gale, you may wish to let the Committee know the correct pronunciation of the hon. Gentlemans constituencyBeconsfield seems to be the southern pronunciation; any northerner would know automatically that is must be Beeconsfield. That, however, is an aside. I know that the hon. Gentleman believes strongly that it is one way of doing it, but I genuinely think that the signal that the House of Commons would give by saying that de facto we would abolish the existing law on manslaughter with respect to corporations and replace it with legislationsimply under the Health and Safety at Work, etc.Act 1974which already exists because it is clear that under the existing legislation it would be possible to pursue prosecution against a corporate body, as, in a way, the new clause seeks to dowould be detrimental to those who campaigned for many years to change the law and, importantly, in terms of the broader signal that it gives society. In that context, I hope that the Minister will resist the concept that is being offered.
As I say, because the new clause was tabled in a spirit of helpfulness, I shall not make the charge, but it would have been made had it been moved in a more assertive manner as an attempt to downgrade the seriousness of the corporate manslaughter test by shuffling it away into the margins of existing legislation. That clearly is not the case, so I do not make that charge against the hon. Member for Hornchurch or against the hon. Member for Beaconsfield. Indeed, the hon. Gentleman was consistent on Second Reading that this was his preferred approach, so I am not sure why the hon. Member for Kingston and Surbiton said that such an approach had not been put forward on Second Reading. However, the approach matters enormously, not because the impact can be different outside of the point made by the hon. Member for Rugby and Kenilworth, nor because, in practice, the effect ought to be different in respect of who appears before the legal process, but because the signal that it would give would be difficult for many people to take on board.
My final point will probably not receive support from Opposition Members nor from my hon. Friend the Minister. The advantage for those of us who believe in a rather tougher framework is that, in the context of individual liability, the Bill is a more sensible vehicle for keeping together the concepts of individual liability and corporate liability under the laws of manslaughter. Subject to the serious point that has been raised about the breadth of the Health and Safety at Work, etc. Act and the importance of making sure that we do not unintentionally have narrower legislation, I hope that my hon. Friend the Minister will respond robustly to my argument and that he will stick with the legislation before us.
Thank you, Mr. Gale, for your advice about this being a clause stand part debate. Clause 1 represents the very core of the Bill. It sets out the new offence of corporate manslaughter, which will be known as corporate homicide in Scotland. At its heart lies a new approach to corporate liability. The offence is not about changing the regulatory structure on businesses or other organisations, but imposing a specific sanction for gross mismanagement. We intend the benchmark for that to be the current framework for ensuring health and safety. Organisations can be reassured that, to avoid culpability, the action that they must take is to make proper efforts to comply with current health and safety standards.
We have debated at length the detail of clause 1, in particular the test for liability when we agreed amendments that, I hope, members of the Committee will accept are a significant improvement. We have also considered the relevant duty of care and the application of the offence to bodies corporatewe shall shortly come to the schedule in respect of Government Departmentsand discussed the need to show that in breach gross failure occurred.
I shall mention briefly the other matters dealt with under clause 1. The penalty for the new offence will be an unlimited fine. Clause 10 makes provision for remedial orders in addition to that. Questions have been asked about the application of new forms of sentence for the new offence. As I said, we are not closed to that, but the matter of alternative sanctions for corporate offending is being addressed by Professor Macrory and needs to be taken forward in that wider context.
Clause 1 also makes provision for the new offence always to be tried before a jury. In England, Wales and Northern Ireland, that will be the Crown court. In Scotland, it will be the High Court of Justiciary. That reflects the serious nature of the new offence. I have dealt with the main elements of the new offence, some of which we shall return to in more detail when considering other clauses in the Bill.
I come now to the new clause to which the hon. Member for Hornchurch spoke so ably. I am delighted to see the hon. Member for Beaconsfield. I am sure that he will give us the correct pronunciation of his constituency when he has the opportunity. In 1982, the Prime Minister stood in a by-election there, and I can remember it being pronounced Beconsfield.
I thank the hon. Gentleman for that clarification. I am sure that the two debates about pronunciation will continue.
The hon. Member for Hornchurch referred to the alternative proposal of amending the Health and Safety at Work, etc. Act 1974 to create a new offence of causing death through health and safety breaches. He mentioned that on Second Reading and made it clear that he was minded to consider the whole area of health and safety. He spoke about experiences in his professional life in relation to health and safety at work. He sees that implicitly as the approach to take, and I agree that it would mean less legislative change.
As the hon. Member for Kingston and Surbiton said, we considered whether that approach would be the best one, but, as he will remember from my opening remarks to the Committee, we did not think that a mere addition to the regulatory framework for health and safety would be good enough. We thought that we needed to raise the profile of corporate killing, or corporate manslaughter.
This has been a manifesto commitment for several years. My hon. Friends will remind me of that in their contributions later, if they feel that I have not met their concerns about it. It was first raised in 1997.
I am starting to piece things together. Perhaps the reason for the Bill was to insert individual liability. Now that individual liability for directors has been removed, is there not a much better case for legislating via amendment to the 1974 Act?
I am grateful for the intervention, but the simple answer is no. I hope to convince the hon. Gentleman of that. Like the hon. Member for Kingston and Surbiton, he tempts me to explain the motivation for the Governments thinking about corporate manslaughter and the Oppositions thinking about the 1974 Act.
I do not agree with what my hon. Friend the Member for Manchester, Central said about the motivations for the clause. I do not accept that that was the case. At Second Reading, there was a genuine understanding of the need to try to resolve the issue and there was a genuine viewpoint that the 1974 Act could be considered. I do not think that it is appropriate, but I am happy to accept the spirit in which it was mentioned.
I made it clear that the spirit in which the Opposition addressed the matter absolved them from any charge, and certainly it is fair to say that the hon. Member for Beaconsfieldsome say Beacons fieldhas consistently said that the 1974 Act motivates what he says. All hon. Members on both sides should respect that.
I am grateful to my hon. Friend for that clarification. He did say that that was a charge that could be made but that he certainly would not make it.
Under the Oppositions proposal, the vast majority of work-related deaths could result in a conviction. That would be several hundred a year. No distinction would be made between the company with not quite adequate standards and the truly bad company with appalling standards. A key part of the new offence is the proper labelling of behaviour that rightly should be recognised as an offence of homicide, not a simple breach of health and safety laws.
Of course, that defect could be remedied by requiring the breach to be gross, but the offence would still not distinguish between corporate failure and a breach, albeit very serious, of a simple prescriptive health and safety requirement. Again, that could be remedied with a requirement for a failure in the way an organisation managed an activity, and the necessary material to prosecute Crown bodies and police forces could be introduced to remedy defects. However, unsurprisingly, once those changes were made, we would find ourselves looking at the Bill.
I do not accept the challenge that having the Bill increases the time scale for bringing cases forward. Corporate manslaughter charges may arise from a major incident such as a large-scale transport incident, but, by the very nature of such incidents, any investigation would be lengthy and complicated. Even at the smaller end of the scale there will be cases involving a fatality and the possibility of serious criminal charges, and they must be investigated thoroughly and comprehensively.
I apologise that coming back from Northern Ireland this morning has delayed my arrival in Committee.
It was personal experience that led me to suggest that there would be more delay. I remember a case in which I was involved within the last four years in which the old type of corporate manslaughter was being considered, along with possible personal manslaughter charges against directors. I think that that resulted in a delay of some 12 months before the case was finally brought to court under the Health and Safety at Work etc. Act 1974, and the defendants pleaded guilty. That was because there were two completely different, albeit co-operating, strands of investigation. That what was I based my comments on and I do think that there will be longer delays. The Government may be happy to accept it, but that is the reality.
Given the business that he has been involved in, I accept and acknowledge the hon. Gentlemans experiences. The Government believe that delays may happen in other ways. The Crown Prosecution Service may decide not to press corporate manslaughter charges, and the Health and Safety Executive may then take over the lead in the investigation and consider health and safety charges. However, we believe that a more effective offence of corporate manslaughter will increase the chances of corporate manslaughter charges being brought in the first place, and hence speed things up. Individual charges can be made on health and safety grounds at the same time as corporate-based charges. Nevertheless, there is a disagreement between the Government and the hon. Gentleman, and that will show during progress on the Bill.
On new clause 2 and amendments Nos. 74 and 75, there would be a new offence entitled corporate killing. The 2000 consultation paper used that term to describe the proposed new offence in the context of the Law Commissions proposal to replace the common law on involuntary manslaughter with two new offences of reckless killing and killing by gross carelessness. The proposed offence of corporate killing was intended to sit alongside those two offences. However, the new offence will sit within the structure of existing homicide offences, and the terms corporate manslaughter and corporate homicide are therefore more appropriate descriptions. They underline the relationship with existing homicide offences and provide a transparent way for the public to understand exactly the extremely serious nature of the offence.
If I may make the position clear, I would not be suggesting a change to the Bills long title unless new clause 2 were also adopted. I suggested a change to the long title because it seemed to me to be inappropriate to refer to the aggravated offence of breach under the Health and Safety at Work etc. Act as being corporate manslaughter, because plainly, given the manner of proof, it is not. That was why I opted for the expression corporate killing. If that term does not commend itself to the Government and to the Committee, I would not seek to change the long title.
I am grateful for that clarification. I hope that the hon. Gentleman understands our reasons for objecting to the proposals. He will know that during scrutiny it was commented that manslaughter is an outdated term and may even cease to be used as a result of the ongoing review of the law of murder. The outcome of that review is too far in the future for us to anticipate it now, however. On balance, the scrutiny report favoured the term corporate manslaughter over corporate killing, and we agree.
Clause 1 is a vital part of the Bill and represents the heart of the reform that we are seeking to achieve. It establishes new offences of corporate manslaughter and homicide, sets out a new test for corporate liability on a truly corporate basis, and applies the new offence to all incorporated bodies as well as Government Departments.
I must apologise to the Minister if, in making a few remarks, I mention things that he has already dealt with before I entered the Room, but asI tabled the amendment I should perhaps briefly address it.
I picked up on one important point that the Minister made which is valid in a sense. In proposing newclause 2, I am proposing a completely alternative approach to tackling the difficulty of workplace-related death, and of people being killed by the activities of corporations. My reason for doing it was to put forward a simplified structure because, having read the Bill, I felt that it is at least arguable that having an aggravated offence under the 1974 Act will produce the same resultsnamely substantial and heavy fines on corporations that kill people in the workplace or those affected by their activitiesbut in a much simpler structure, which will make conviction far easier and lessen the tendency of companies to try to take up court time by resisting such prosecutions. That is the intention.
Seeing that the Government have acknowledged that the only end penalty will be a financial onealthough the Committee will debate other optionsone has to look at the end result and ask oneself whether this rather complicated piece of law will really do more good in the long run than simply having an aggravated offence under the 1974 Act.
Order. I have a sense of unease about this debate. I know that the Committee understands, as the Chairman certainly understands, the onus on Members to be in more than one place at a time. The Committee also respects the detailed knowledge that the hon. Member for Beaconsfield has of the subject. However, before we go any further I should point out that we are in some danger of going over ground that his hon. Friend, the hon. Member for Hornchurch, leading for the Opposition while he was not here, has already covered. We could be in danger of re-rehearsing the entire debate. I mention that as a courtesy to the whole Committee in the hope that the hon. Member for Beaconsfield will take my point on board.
I, too, will try to keep my intervention short. The nub of the argument is something that the hon. Gentleman will recognise from his own extensive practise. How do we give the appropriate signal? The issue is almost encapsulated by the phrase that he used. I cannot remember exactly how he completed the sentence, but he talked about cases being simply under the framework of the Health and Safety at Work, etc. Act 1974. Although I can understand the technical elegance and his attempt to incorporate a fast-track system of justice, that approach would send a difficult signal, because it would take us away from the existing corporate manslaughter legislation, which is there but simply inadequate. That is the problem.
I entirely accept that point, which concerns one of the balancing exercises that the House and the Committee must perform. Since I anticipate that I shall lose this argument, I shall support the Minister to the best of my ability to try to ensure that the Bill goes on to the statute book, as the Government intend, as corporate manslaughter.
The Committee has accepted that what the hon. Member for Hornchurch presented on behalf of his party this morning was in the right spirit and developed our understanding. However, could the hon. Member for Beaconsfield say why, in explaining his opposition to the concept of a custodial sentence for a named director, he does not accept that he has, even symbolically, changed the approach, by using the term killing instead of manslaughter? How does he reconcile the rejection of a named director and a custodial sentence when we are asked to accept that killing has taken place?
Manslaughter has a well-established definition in our law, which is killing as a result of gross negligence or sometimes, under criminal law, as killing somebody when doing an unlawful act towards them that falls short of intent to cause them grievous bodily harm. That is a well-established definition, but, to pick up on the Governments thinking, once we depart from the established test of manslaughter, we should be careful about ending up with custodial sentences for individuals. Historically, we have not imprisoned people for negligence in this country, although we seem to be making an inroad in that direction with the offence of causing death by careless driving in the Road Safety Bill, which is one of the reasons I vehemently disagree with it. Indeed, if I had had an opportunity at Report, we would have had a debate and I would have explained why I thought that was the wrong approach.
In creating corporate manslaughter, the Government have added something to the manslaughter body of law, but they have done it in such a way that, when they reflected on it, they could not see that it was justified to lock up an individual merely because the corporation had been convicted. I believe the Government are 100 per cent. right about that. You have to show that manslaughter has been proved against the individual. That can be done under the old law, if one thinks there is a basis for doing it. The fact that someone is the company director of a big corporation, which ought to behave better, does not mean that he should be locked up for manslaughter unless it can be shown that he, personally, has been grossly negligent. That is why I do not like departing from that principle.
Given that we are dealing only with corporations, why should we get hung up on the word manslaughter? One should look at the penalty. However, I acceptI said this earlier and on Second Readingthat manslaughter has a stigma attached to it such that even when applied to a corporate body, there may be some force in arguing that we should prosecute them for that. However, if we are going to depart from that, we should have an offence of corporate killing and the Health and Safety at Work, etc. Act should be amended, although it should be made quite clear that an aggravated offence under that Act is not equivalent to manslaughter in our old lawalthough the tests for prosecution and conviction are much simpler, which is why it is attractive to prosecutors.
I have picked up two points from the debate that I might be able to deal with now. I am told that the hon. Member for Kingston and Surbitonwho is now not in his placeasked what consultation I had conducted before presenting my proposal to the Committee. The subject of corporate manslaughter has been discussed extensively over the past three years at the criminal Bar, which does health and safety work, and at various informal seminars, and my own chambers organised a discussion on it. At the risk of incurring the Committees wrath, our impression is that the proposal is fascinating, but it is good money for lawyers; we questioned whether, ultimately, it would make a substantial difference to the culture within corporations. It has been chewed over endlesslyif I have been doing a health and safety at work case, it is the subject that is talked about during coffee breaks. It has been topical at the Bar. That is the extent of the consultation. There has been no more structured consultation, although I discuss the subject with solicitors and anybody I meet. It has been very much uppermost in my mind over the past two or three years.
The second point relates to penalties. I heard the Minister make a perfectly sensible point when he said that, if we are going to prosecute for an aggravated offence where a death occurs, everybody is going to be convicted of that aggravated offence because they are going to be prosecuted for it the moment that a death results. That will, he saidI hope I paraphrase him correctlylead to a sentencing difficulty. In some cases, although there is a death, the culpability is not very great, whereas in others, although there is a death, the culpability is enormous. That is absolutely true. It is also true to say that under the old regimethat is, the present regime of the Health and Safety at Work, etc. Actkilling somebody is not necessarily the worst thing that one can do under the Act.
I once did a case concerning a nuclear power station in which, although nobody was hurt, killed or contaminated, the risk created by the activities of those running the power station, at Wylfa in North Wales, was such that, if not for the grace of God, there would have been a plume of contaminant which, depending on the direction of the wind, would either have come down to Luton or gone to Dublin. Whichever it was, it was not very good news. The company was fined a very substantial amounthundreds of thousands of poundsfor that breach even though, as it turned out, nobody was injured at all. Equally, one may do Health and Safety at Work, etc. Act cases in which somebody dies and although the person may be guilty of a breach under the Act, most people considering it would have considerable sympathy with the employer. Sometimes there is considerable contributory negligence by the employee, and sometimes there is a coming together of unfortunate circumstances.
The disparity already exists butthis is the problem that the Minister and the prosecutors will have to face up toonce corporate manslaughter is on the statute book in the form it takes in the Bill, the pressure willbe on prosecutors to prosecute for corporate manslaughter every time there is a death, but in many cases people will look at what went on and say, Well, actually, its only a breach of the Health and Safety at Work Act, and there will be a lot of public outcry and pressure. It will often be misplaced, but we only have to look at the example of the problem with the Road Traffic Acts to see that that is exactly what has happened there, too. A terrible accident happensfor example, five people are killed in a pile-upbut the blame on the person who caused it is tiny and he is prosecuted for careless driving under the Road Traffic Acts, which leads to a fine of £250 and a big outcry.
It is precisely because I want to get away from that I decided that we should have an offence that, although it does not impose imprisonment on an individual, states that if someone is killed as a result of negligence that is a separate offence, and that leaves the judges to put in the necessary differentiations through the fines. The Sentencing Guidelines Council can do that. It will mean that sometimes, as in my Wylfa nuclear power station case, a big fine is imposed when no one dies; equally, someone may be prosecuted for the aggravated offence and be fined much less. However, those issues will always arise, and we have to leave them to the judiciary to sort out because we in Parliament certainly cannot do so.
The hon. Gentleman has outlined the spectrum of culpability and he explains that there may be circumstances in which an individual may have little culpability. However, does he not recognise and accept that we are trying to focus on the other end of the spectrum, where there is clear culpability? Is it not self-evident, glaring and accepted that, in such circumstances, we must do what we can to ensure that the families of the deceased feel that justice is done, in the words of the hon. Member for Hornchurch?
Yes, I agree. That is a good reason to try to do what the Government are setting out to achieve. All I am saying is that, based on my professional experience, my hunch is that there will be quite a lot of cases that, as cases always do, will fall in the grey area between being a breach of the Health and Safety at Work, etc. Act with no recognition of deathdeath is recognised as an aggravating feature in sentencing, but that is only in the sentencing guidelinesand being corporate manslaughter.
I hazard the suggestion that we might well end up with people feeling that the death of a relative or friend has not been adequately recognised because, perfectly properly, the prosecutors has considered what went on and said, Im sorry, but this is not corporate manslaughter as defined in the Bill. There will be a health and safety prosecution, the company directors and everybody else at the company concerned will breathe a sigh of relief, go to court cheerfully, plead guilty and be fined, and people will come away feeling distressed and unhappy. That is always a problem.
I have prosecuted cases where, for some reason or another, the evidence has failed in the course of the case and I have had to accept pleas to regulatory breaches and not a breach of the Health and Safety at Work, etc. Act. I remember how difficult it was to explain to the relatives of the deceased person why I had done that, which, as the prosecutor, I had a duty to do. In fact, I had no option. I know from that experience how difficult that is. The Bill offers a way around that problem because all that is left is fixing the tariff for the penalty.
Equally, however, the hon. Gentleman is perfectly right: if what the Government want to do is to identify a particularly bad form of behaviourI see the Minister noddingand then to structure a quite complex offence targeted solely at corporations, which will be visited by a fine, so be it. The Government accept that not much can be done other than to fine corporations. That is dealt with in clause 9. There will be no unfairness. The trial will be perfectly fair and the proposed structure is reasonable, but if I am asked my opinion, I will have to say that I really wonder whether we are not taking a slightly blunt instrument to the problem, and whether we could not generate as good a culture change by what seems to me to be a neater and easier alteration to the law that would lead to a very high rate of conviction and might impose some stigma. After all, under my proposals, a company would be found guilty of corporate killing. I know that that is not quite the same as manslaughter, and I think that we should keep such distinctions present, but it still does not sound very good in a companys annual report to shareholders, and we will secure more convictions.
There are two options. I have presented my option. I have probably spoken too long. I apologise, Mr. Gale, and thank you for your indulgence on the matter. I shall not trouble the Committee further, except to apologise for not being here at the start of the sitting.
I set out the Governments position earlier. I respect wholeheartedly the hon. Gentlemans right to put the Oppositions case for the reasons that he gave. Nobody in the Government would challenge his professional experience, but there is a clear, fundamental difference between our approaches to the problem. That was clear on Second Reading and has been clear in Committee.
The Government believe that the Bill is about changing the culture and ensuring that corporate bodies understand their responsibilities. There is a difference of opinion between us, but I still hope that hon. Members will support clause 1.