Clause 10

Corporate Manslaughter and Corporate Homicide Bill – in a Public Bill Committee at 3:15 pm on 26th October 2006.

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Power to order breach etc to be remedied

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central

I beg to move amendment No. 83, in page 7, line 16, after ‘convicted’, insert ‘or is found not guilty’.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following amendments: No. 84, in page 7, line 18, at end insert ‘or’.

No. 85, in page 7, line 19, leave out ‘to have resulted from that breach and’.

No. 86, in page 7, line 26, at end insert

‘and may include reference to a person or persons, who are to be responsible for the specified steps being taken’.

No. 110, in page 7, line 32, at end insert

‘and a person referred to in an order in this section may be guilty of contempt, if the specified steps are not taken by the organisation in accordance with an order under this section’.

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central

There is a division of labour, but I think that Labour is united on this.

This group of amendments comes under two separable headings, but it might help the Committee if I started by talking about the Marchioness disaster. Committee members will recall that the salient facts were that in the early hours of the morning two boats collided on the River Thames. The collision happened  because there was inadequate visibility in the boats’ wheelhouses and—I recall it well—the skipper of the Bowbelle, which rammed the Marchioness, failed to put a proper look-out on the bow of his boat, so a preventable accident was not prevented. The skipper was charged under the manslaughter laws with, I think, gross recklessness and manslaughter. The result was that, although the charges went to court, the case was not proven and the skipper was found not guilty on two occasions.

That case is important to bear in mind in respect of amendment No. 83, under which the court is invited, rather unusually, to take remedial action even if the defendant corporation is found not guilty. It is unusual to apply a remedy against an organisation that is found not guilty. Most people would say, in a common-sense way, that in the specific circumstances of the Marchioness, it is clear that a matter that could have had remedy went wrong. It would be ridiculous for us not to seek to provide a remedy, having established that such a remedy existed, and it would be even more ridiculous if we had no power to order the proper remedy because the charges were not provable in court against an individual or a corporation.

We know that cases have failed in court and not guilty verdicts have been given. In the case of the Marchioness there was no remedy. Under the clause as it is presently worded, it would have been impossible for the court to order proper remedy at a later stage. That is impact of amendment No. 83, which is important in its own right.

The purpose of amendments Nos. 86 and 110 is to recognise that an order made under the clause is made against an organisation or incorporated body. However, it is a matter of practical fact, and almost common sense, that for remedy to be actioned individuals must action it. There must be individuals in the incorporated body who will take those actions. If the incorporated body fails to take remedial action, there will be remedy against it. However, in a rather different way from the earlier debate between my hon. Friend the Member for Eccles (Ian Stewart) and the hon. Member for Beaconsfield about individual liability, we are seeking for individuals to be named by the court as those in the incorporated body who have the responsibility and duty of ensuring that that remedy is applied. Failure to act and to bring those remedies forward would result in individual liability, because where a remedy is ordered against an individual it makes sense for a penalty arising from a failure to act in that way to be against that individual.

There are two quite separate arguments about this group of amendments. Those that concern the first part of the clause are intended to ensure that the remedy applies where guilt is not proven. The other amendments try to ensure that when the court issues remedial action it has the capacity to ensure that it is implemented and that there is a penalty for failure to implement that remedy against those who so fail.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 3:30 pm, 26th October 2006

The hon. Member for Manchester, Central has entirely worthy objectives within the context of the remedial orders. The problem that I have—I have mentioned it before, but this is a good  time to mention it again, because we are now discussing the relevant clause—is that there is a big question mark over the entire framework of remedial orders in the Bill.

As I think I mentioned on Second Reading, a serious accident that leads to death will, irrespective of a prosecution under the Bill, be investigated by the Health and Safety Executive or, potentially, by a local authority through its health and safety inspectors. A panoply of powers is available to the HSE and those inspectors in respect of deficiencies, which include the power to issue a prohibition notice, which says that a particular method of operation must cease completely, or an improvement notice, which says that a body must carry out certain improvements to its procedures within a set period of time, or in some cases a mixture of the two.

Given my experience with manslaughter cases and cases of similar seriousness, and the likely numbers of such cases in any year that will come to trial many months after the incident took place, it is most improbable that there will still be anything to be remedied by the time such a case reaches trial. That is my initial gut reaction. If there is still something to be remedied by the time the trial takes place, the HSE or the local authority has not done its job properly, which is a worrying phenomenon. However, it is my experience that the issue will have been dealt with.

I also point out to the hon. Gentleman that the HSE’s powers to impose prohibition or improvement notices is quite independent of whether somebody is guilty of a breach of the Health and Safety at Work, etc. Act 1974. If those on the receiving end of such notices do not like them, their remedy is to appeal them to the employment tribunal, where the dispute is thrashed out. I have done such cases at the employment tribunal and I can assure the hon. Gentleman that the notice will bite until it is removed. There is no question of a company or a corporate body saying, “Oh, let’s appeal this to the employment tribunal, because in the meantime we can carry on with our practice until we are told that we have to stop it.”

Photo of Ian Stewart Ian Stewart Labour, Eccles

Rather than making play of the issue, I should point out that although we certainly understand the hon. Gentleman’s rationale, the number of cases where inspectors have issued notices are relatively low.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

That may be true. One could argue that the HSE or local authorities certainly are short of staff to go round inspecting premises and slapping on the necessary orders. I am sure that if there were more inspectors, more prohibition and improvement notices would be served. However, my experience is that, where someone has died, which is what we are talking about, the situation is gone over with a fine-toothed comb, so I would be startled if, following that, prohibition and improvement notices were not imposed if they were required. Often, of course, when one is dealing with companies with any sense of responsibility, they move pretty quickly themselves to remedy any breach. Sometimes, in co-operation with the Health and Safety Executive or the local authority, they remedy the breach themselves, so that no notice ever has to be served.

I have two problems with the amendments. First, amendment No. 83 proposes a procedure whereby if there is a criminal trial at which someone is found not guilty, a remedial order is still imposed. We will not know the circumstances in which a not guilty verdict is returned. It may be after a full hearing, when the judge has had an opportunity to consider the matter and hear all the evidence, but it could happen, and sometimes does, at a much earlier stage of a trial, when the judge has had absolutely no ability to evaluate all the facts of the case. In those circumstances, unless the judge converts himself into an equivalent of the employment tribunal dealing with the prohibition or improvement notice procedure, he will be ill placed to deal with the issue in court.

One of the wider criticisms that I have of clause 10—we could deal with it in a clause stand part debate, but we can deal with it just as easily now—is that it is unclear who will supervise and monitor the imposition of remedial orders and who will provide the expert input to the court about the remedial orders that may or may not be necessary. Let me make the position clear: I am not saying that that cannot be done, but it will need the active participation of health and safety inspectors from either the HSE or local authorities.

The blunt truth is that I question whether clause 10 has any real value at all. I am sorry to have to say that to the Minister. The attempts—worthy attempts, if I may say so—by the hon. Member for Manchester, Central to beef it up seem to run into the practical difficulties that I have identified. It would be interesting to hear from the Minister how he really thinks the clause 10 regime will work.

I have a couple of amendments, which are due to be considered later. I may be able to short-circuit that discussion by saying that they would remove the word “prosecution” and insert “Health and Safety Executive”, precisely because it seems to me that the prosecution is in no position to make applications for remedial orders generally unless the HSE or some other responsible organisation is there to advise them.

Photo of Roger Gale Roger Gale Conservative, North Thanet

If the Minister wants to respond to that and if the Committee is happy, I am, again, perfectly content to consider those amendments as part of this group.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

Thank you, Mr. Gale. I agree with the hon. Member for Beaconsfield that my hon. Friend the Member for Manchester, Central had a worthy objective in proposing his amendments. I understand the spirit that he is trying to generate in relation to them.

Clause 10 enables the court to order an organisation convicted of the new offence to take steps to put right the management failure that caused a death. It also allows the court to remedy any consequence of that management failure if the court believes that it, too, was a cause of death. For example, if the convicted company failed to put in place adequate systems for monitoring the safety of its activities, and the consequence of that was dangerous practice on the shop floor, the court would be empowered to order changes both to the systems and to the practices that led to the fatality.

We expect the use of remedial orders to be relatively uncommon after a conviction, for the reason that the hon. Gentleman gave—regulators would already have acted. However, it would still be useful to enable a court to add its weight to the necessary measures that a convicted defendant needs to take to put its house in order.

Amendment No. 83 is designed to extend those powers, so that courts can impose remedial orders on organisations that have not been convicted of corporate manslaughter. It is an extremely unusual step to impose a court order on a defendant who is not convicted of a criminal offence. I understand the point that organisations may carry out practices that, although not grossly negligent and warranting a conviction under the new offence, are not safe. However, organisations that have been investigated and subsequently prosecuted for corporate manslaughter will have been thoroughly scrutinised—long before the trial, hopefully—by the relevant regulator.

For example, the Health and Safety Executive is empowered to issue improvement notices and prohibition notices that require illegal or unsafe practices to be remedied. Failure to comply can result in prosecution, leading to imprisonment and fines of up six months or £20,000 in the magistrates court and two years or unlimited fines in the Crown court. Other regulators have similar powers. Unsafe practices are therefore likely to have been identified and addressed prior to the trial.

It is also worth noting that an organisation acquitted of manslaughter may be convicted on health and safety offences, in which case remedial orders would still be available to the court. We therefore believe that there are sufficient opportunities to intervene in organisations to ensure that unsafe practices do not continue without extending what is intended to be part of the response to a criminal conviction to an unconvicted organisation.

Amendment No. 86 is designed to make it possible for a court to identify individuals who will be responsible for ensuring that the remedial order is complied with. Amendment No. 110 specifies that any person named in an order may be guilty of contempt of court if the company fails to take the steps set out in the order. The penalty for that would be up to two years’ imprisonment or an unlimited fine. The effect of that would be essentially to impose a sanction on an individual for the faults of a company, a concept that my hon. Friend will pursue later. I am uneasy about the implications of that.

Although I accept that there is concern to ensure that organisations take remedial orders seriously, the proposal raises several questions. First, how does the court decide on whom to impose the order? One solution might be to impose it only on those who have health and safety responsibilities, but that might have the perverse effect of discouraging people to take on responsibility for such a crucial part of an organisation’s functioning. Alternatively, the order could be imposed on all directors. However, it is not clear how the court would deal with the fact that some directors may be in a better position to control compliance than others. There is also the matter of what happens if named people leave the company.

We want organisations to comply with remedial orders when they are made, which is why we have made the consequence of not complying with an order more serious than was the case under the draft Bill. Breach of the order will be heard in the Crown court, not the magistrates court, and we have raised the penalty for non-compliance to an unlimited fine.

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central

I seek some information from my hon. Friend. Obviously, the measure is technical and important. Under the Health and Safety at Work, etc. Act 1974, the prohibition notices that are imposed on a company stop the work process. If the company continues to work and breaches the order, is the remedy operated against the company or against the individual?

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

As my hon. Friend said, the matter is technical. The 1974 Act certainly gives the opportunity to send individuals to prison for breaches and consistent breaches of their obligations. We know what he is trying to achieve by holding individuals to account but, like the hon. Member for Beaconsfield, I do not think that it is right to take the action set out in the amendments. We will talk about corporation probation and other issues later. I ask my hon. Friend l to withdraw his amendment, having put on the record the issues that it raises.

The hon. Member for Beaconsfield referred to amendments Nos. 141 and 142. They would mean that the Health and Safety Executive, as opposed to the prosecution service, would make applications for remedial orders. I see merits in that proposal and will deal with the wider point about regulator involvement in a moment. I wish first to explain why I shall not be supporting the amendment.

The Health and Safety Executive will not always be the appropriate regulator. It may be that the Food Standards Agency is the relevant regulator, or the Office of Rail Regulation, so limiting the role to the HSE is not apt. That, of course, can be remedied, but whichever is the appropriate regulator, the prosecution service will bring the case and the regulator will only have limited formal involvement in the trial. It would not be appropriate to give it a formal role at this stage.

We fully expect the prosecution to liaise closely with the relevant health and safety authority prior to making any application. It will then be open to the convicted organisation to make representations to the judge about the order, and to present any evidence that the order would be inappropriate or unnecessary. We think that that will provide sufficient safeguards against misguided orders.

The Bill does not make specific provision for monitoring compliance with remedial orders. However, the relevant enforcing body such as the Health and Safety Executive will have a strong interest in ensuring that safe practices are adopted in a convicted organisation. We are therefore confident that, as well as being involved in the drawing up of remedial orders, regulators will be fully engaged in monitoring compliance with such orders, without the Bill making specific provision in that respect.

I hope that that provides the answers sought by the hon. Member for Beaconsfield in relation to amendments Nos. 141 and 142, and that my hon. Friend the Member for Manchester, Central will withdraw his amendment.

Photo of Roger Gale Roger Gale Conservative, North Thanet 3:45 pm, 26th October 2006

In view of the situation that I have created, I invite Mr. Grieve to speak.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful, Mr. Gale and I hope that not too many problems have been caused by short-circuiting a debate on my closely linked amendments. The Minister has reassured me sufficiently, so I shall not press those amendments to the vote; they were probing amendments anyway.

The Minister has acknowledged that the expertise lies with the regulatory authorities—that is quite clear. It is therefore obvious that if the remedial orders are to have any value, the regulatory authorities will have to provide input at the beginning, advise the prosecution, and monitor compliance, though I accept the Minister’s point that the relevant authority will not necessarily be the HSE. Regulations will have to be made by the Government to ensure that that happens. It may seem obvious that it should happen, but I sometimes think that without a statutory obligation and responsibility it is amazing how much organisations are willing to wash their hands. It may not be a matter for primary legislation, but I suspect that regulation will be necessary.

There is another matter, which I have mentioned in a wider context, which applies to remedial orders and to prosecutions generally. The Crown Prosecution Service, and the police, are ill equipped to deal with technical prosecutions in the field of health and safety; they do not really know what they are doing. I have been persuaded of that by the one or two occasions on which I have seen a prosecution happen after investigations of possible corporate manslaughter as it currently exists—with individual directors’ liability. The trouble is that the CPS and the police tend to take the lead over the HSE and the enforcement authorities because, in the hierarchy of things, manslaughter is perceived as more serious than a breach of the Health and Safety at Work, etc. Act 1974.

The result is that interminable interviews take place at police stations, in which the interviewer is not the person who really knows the issues. The anecdotal evidence is that that person—the HSE inspector or the local authority inspector—sits on a chair in the corner, with his eyes rolling to the ceiling, thinking, “Can’t we get on with it? This person isn’t asking the right questions.” That problem goes right through the entirety of the prosecution machinery in the Bill, but it applies particularly to remedial orders. Deciding which such order is appropriate will require the closest involvement of the relevant enforcement agency. The Government will need to make quite clear to those agencies what they have to do, and will also need to make clear to the CPS that the agencies will be, if not equal to the prosecution, very important players in the process.

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central

I have enormous sympathy with the points that the hon. Member for Beaconsfield has just made. However, although I understand his and the Minister’s arguments, which are powerful, a problem in our society is that even regulatory authorities have not always done their job properly. Sometimes, even in doing part of the job they have not gone as far as the public may have expected. The railway industry is a classic example, and over the years I have been known to say one or two unkind things about the railway inspectorate. In his summing up in the Hatfield disaster, for example, the judge observed that it was

He said it was,

“the worst example of sustained industrial negligence in a high-risk industry”

It is an industry that has its own regulator, but that regulator failed to act in a satisfactory way to protect the travelling public. That is an important point to bear in mind if we say that the prohibition system as it exists must always work.

Photo of Ian Stewart Ian Stewart Labour, Eccles

I distinctly remember being shocked that the 1974 Act was, to my knowledge, the first Act to allow the police to enter a site. The purpose of the Act was, in cases where something was so dangerous that it could not be dealt with by the regulatory approach, to give the police the power to go on to a site to save life. We must remember that although we are interested in process, this is a very complex area—hon. Members who have argued with me about prevention rather than remedy should remember that.

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central

My hon. Friend makes a good point. All legislation of this kind is better if it is part of prevention rather than remedy, but when things have gone wrong and can no longer be remedied, we need to examine how to build in a remedy. A man called Kenneth Farr was decapitated by an unsecured car park barrier at Asda in Cardiff; a similar accident happened at another Asda car park that resulted in a prosecution and a fine, but the regulatory authorities failed to insist that they brought in a proper remedy.

Much as I respect regulatory authorities, they do not always get it right. It may sometimes be appropriate for the court to be involved, which is obviously why I support my hon. Friend’s amendment seeking to give the courts that capacity. There may be circumstances in which that is necessary although it may be rare in cases of corporate manslaughter that the remedy has not already been properly actioned. When that remedy is needed it is helpful to give the court that power.

I will seek leave to withdraw the amendment, but I hope the Minister will reflect on two things. First, the reason I asked him about the operation of the 1974 Act is that under that Act a remedy can be applied against individuals where the company fails to act on a prohibition order or the equivalent. The Minister confirmed my belief in that respect. The comparison to the amendment we have sought to move is a real one. Will the Minister reflect on that as it may not be the right way of doing it but we should at least consider it quite carefully?

Secondly, I do not think the hon. Member for Beaconsfield heard me earlier when I mentioned the Marchioness tragedy and made the point that a  prosecution was taken forward. The prosecution failed, but it was clear at the end that there should have been remedies applied. Although it may be unlikely that by that stage of other cases, the remedy would still be lacking, if it were lacking, it would be sensible in the final analysis for the court to make an order imposing the remedy—even if the prosecution has failed. I hope the Minister will think about what lies behind these amendments. In recognising the time of day and the will of the Committee, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Roger Gale Roger Gale Conservative, North Thanet

For the record, I confirm the Chair’s understanding that amendment Nos. 141 and 142 have been dealt with, which leaves us with only amendment No. 138 to clause 10 to deal with.

Further consideration adjourned.—[Mr. Alan Campbell.]

Adjourned accordingly at six minutes to Four o’clock till Tuesday 31 October at half-past Ten o’clock.