Clause 17

Corporate Manslaughter and Corporate Homicide Bill – in a Public Bill Committee at 11:45 pm on 31 October 2006.

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No individual liability

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry), Liberal Democrat Spokesperson (Trade and Industry)

I beg to move amendment No. 151, in page 11, line 4, leave out ‘cannot’ and insert ‘can’.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following: Amendment No. 152, in page 11, line 6, leave out ‘cannot’ and insert ‘can’.

Clause stand part.

New clause 5—Individual liability—

‘(1) An individual can be guilty of aiding, abetting, counselling or procuring the commission of an offence of corporate manslaughter.

(2) An individual can be guilty of aiding, abetting, counselling or procuring, or being art and part in the commission of an offence of corporate homicide.

(3) An individual guilty of an offence under sections 17(1) or (2) shall be liable on conviction on indictment to a fine or a term of imprisonment of up to 14 years.’.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry), Liberal Democrat Spokesperson (Trade and Industry)

Arguably, clause 17 is one of the most controversial in the Bill. It deserves serious debate. On Second Reading and at different points in our proceedings, questions have been asked whether the Bill, which creates the new offences of corporate manslaughter and corporate homicide, should include any relationship to individual liability. It has been said that after the Bill is enacted, two methods of prosecuting individuals will remain: under the current offence of individual gross negligence manslaughter or under provisions whereby an individual may be prosecuted as a secondary party to a health and safety at work offence. That is true. The Government like to argue that directors who are guilty of those offences can be taken to court and charged. We are told that the Government consider that that is sufficient and that there is no need to do anything else, but that argument needs to be probed for several reasons.

The act of creating a new offence of corporate manslaughter might result in fewer actions against individual directors who were genuinely at fault. They will not be brought to book because people will go for the corporate offence and will not pursue individuals, because that is more difficult. After all, the whole purpose of creating the third, corporate, offence was because it was so difficult to get prosecutions against individuals. If we allow the clause to stay in the Bill unamended, it might have the perverse result that individual directors who were responsible for tragedies get off. Others share my worry about that.

The argument that if we have any extra individual liability, in addition to the two other offences, we will discourage people from becoming directors and they will become more risk averse does not hold much water  because the other two offences remain. Is adding a third offence in respect of individual liability and linking it to the new offence the right way forward? Will it ensure that guilty people who were responsible for someone dying are brought to book? I recognise that such a judgment is difficult. I am not attacking the Government and saying that they have it completely wrong, because I genuinely consider that the arguments are finely balanced. The evidence divided the Joint Committee that examined the draft Bill. Half the members supported the Government’s position and the other half were against it. Let us be clear: it is a difficult judgment. In 2000, the Government agreed with the need for a secondary individual liability. I hope that the Minister can explain why they have changed their view.

An interesting piece of evidence heard by the Joint Committee was that surveys of directors showed that a majority of them thought that there should be individual liability. While some business organisations are concerned about such matters and welcome the Government’s position, many individual business people consider that, if people are guilty, they should be able to be brought to book.

I wish to say two things to put such a difficult problem in context. We know that individual gross negligence manslaughter is incredibly difficult to prove and to prosecute. The next offence of being secondary party to an offence under the Health and Safety at Work, etc. Act has not been used much. Research shows that, in the past 20 years, only eight such prosecutions have resulted in a fine or a disqualification. That route does not seem to be used much either. I just wonder whether the provision is needed because the existing offences are not doing the job well enough.

The slightly more emotive argument is that several offences are on the statute book under which directors can be imprisoned for financial misdemeanours, yet the Bill covers situations in which an offence of corporate manslaughter has been shown to have been committed and some managers have been found individually liable—not to the extent of being guilty of individual gross negligence manslaughter, but certainly seriously at fault. If they cannot be dealt with severely, people outside the House will think, “Parliament didn’t really finish the job. They got so far, but they didn’t do what we felt was needed to plug the gaps and ensure that victims and their bereaved families get justice.”

I accept that it is a tricky matter, but I hope that the Minister will be able persuade me on to his side, rather than leaving me thinking that we will not be doing our job if we do not strike out clause 17.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

As has been quite clear during the course of this debate, I do not support the amendments of the hon. Member for Kingston and Surbiton seeking to eliminate clause 17. It is axiomatic that if we are to concentrate on corporate manslaughter, a separate offence allowing an individual to be

“guilty of aiding, abetting, counselling or procuring the commission” of the offence will be a complicating feature. It will complicate the conduct of trials and the representation required, because in order to facilitate corporate  manslaughter conviction—this is the point that really exercises me—we will have subtly altered how the Bill interprets the law of manslaughter. I am completely comfortable with aiming at an organisation, but would not be comfortable with criminalising an individual.

The hon. Gentleman must answer this point. If a person has conducted themselves in a manner that he feels should attract criticism, there can be no objection to prosecuting that individual personally for manslaughter, and that is what should happen. If we say that there is a separate offence of aiding, abetting, counselling or procuring an offence of corporate manslaughter, we are in danger of creating a new and separate offence with a different test from that of a straight individual manslaughter conviction. I do not think that those circumstances would have a happy outcome, because it would be immediately pointed out that the tests to establish two very similar offences attracting similar attention and sentencing are different. That is why the Government were absolutely right not to include individual liability in the Bill. It is a simple point, but it is one on which I completely support the Government.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry), Liberal Democrat Spokesperson (Trade and Industry)

The hon. Gentleman, in his usual way, is being persuasive, but I ask him this: if it is clear through the proceedings of a trial for corporate manslaughter that an individual or individuals were guilty of

“aiding, abetting, counselling or procuring the commission of an offence of corporate manslaughter”, does he think that they should walk away scot-free?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The position is that in a corporate manslaughter prosecution, evidence might doubtless be adduced suggesting different areas of culpability, by negligence, of individual directors or managers. That is probably inevitable; indeed, it will be part of the prosecution’s case. I assume that before the prosecution is brought, the Crown Prosecution Service and the DPP will have considered, as they should in any corporate manslaughter case, whether the facts of the case relating to any individual in the company, be he employee or manager, are of such an order that that person merits being prosecuted personally for manslaughter or gross negligence manslaughter. I can envisage that there might be circumstances in which that happens.

After all, as the hon. Gentleman is aware, the few instances of successful prosecutions for corporate manslaughter under the old law have also involved prosecutions for manslaughter of the individuals concerned. Usually the companies have been very small. The Lyme bay tragedy springs to mind, and there were convictions in that case. I shall be interested to hear what the Minister says, but I should certainly expect that matter to be borne in mind by the DPP and the CPS. We are not abolishing the offence of gross negligence manslaughter against individuals. For that reason, it is important to keep some clarity of distinction between corporate manslaughter and individual manslaughter, and it is neither desirable nor necessary to muddy the waters, because if the CPS were doing its job properly I would expect individual prosecution for manslaughter to be brought if warranted. I hope that the Minister will reassure the Committee on that.

Photo of Ian Stewart Ian Stewart Labour, Eccles 12:00, 31 October 2006

We are again brought to the crux of the difference—possibly the most significant difference—between members of the Committee. The Minister may be able to persuade me about leaving the clause in, because my initial concern was whether the clause would remove the common law offence of aiding and abetting.

This morning I received an e-mail from the mother—I do not know her name—of a young man called Mark, who was killed in 2005. He was burnt to death in an explosion at work when a fireball was caused by the crushing of 4,000 aerosol containers filled with butane gas. We can never put ourselves in the position of families who have lost somebody in such circumstances, and I hope that we approach such situations in a dispassionate sense. I shall make my point succinctly.

The man’s mother said:

“My son was instructed to crush these on a baling machine ... which the general manager admitted to police had a clear warning should never be used to crush enclosed cylinders or anything containing volatile substances as to do so would be dangerous for the operator. My son was never shown this warning nor was he given any training on this machine.”

The pertinent point is one that goes to the heart of the resistance from the hon. Member for Beaconsfield to our concerns on the matter. The e-mail continues:

“The general manager also told the police that he had carried out a risk assessment in which he said that no aerosols would be accepted for processing for scrap, unless” they were

“accompanied by a certificate of degassing and” had

“been punctured. On this occasion, he ignored his own risk assessment and accepted the aerosols from a haulier who had no licence to transport hazardous materials. The police told us that they suspected the aerosols were stolen.”

In previous arguments that I have put to the Committee I have tried to focus on situations of wilful gross negligence. To date, I have heard no argument that convinces me that there should not be some sanction if there is wilful gross negligence leading to death. That is the thrust behind new clause 5 too. It would leave a pathway for families to seek appropriate redress, so that justice may in their eyes be seen to be done.

Photo of Jim McGovern Jim McGovern Labour, Dundee West

New clause 5 seeks to make senior managers liable for their actions. Under the Bill’s original wording, a crime would have been committed only if it had been tied closely to the actions or inactions of a senior manager. The Government have now moved position, and the Bill now provides that a crime is committed if it is substantially under the remit of senior managers, but there is still that unremitting focus on the actions or inactions of senior management. However, the logical extension of that is that such managers are in some way responsible for what has happened. In some cases, the extent to which blame can be laid at the door of a single manager is negligible. In those cases, we would be grateful for a new law that deals with corporate responsibility. However, in others, the blame, while lying within the company, can be firmly laid at the door of one or a  small number of managers. Logically, in that type of situation, the managers are as guilty as the company.

We would all agree that there can be a level of culpability among senior management and by definition, certain senior managers. I am sure that many would argue that, despite this, there is very little need to prosecute those people. After all, the corporation will be prosecuted and the family of the person killed will receive justice. Someone has to be held responsible and in this case, it is to be the company. On the contrary, I do not believe that to be the case. If a person can be identified for the death of a loved one, having a fine levied against the organisation which employs that person is not a suitable resolution for the case.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I would have much more sympathy for the hon. Gentleman’s case if a mechanism were not already available to prosecute the individual manager in the way that he describes, namely the common law offence, as my hon. Friend the Member for Beaconsfield said, of gross negligence manslaughter. Would the hon. Gentleman explain what his proposal and that of his hon. Friend the Member for Eccles would add to the criminal law that is not already there in the common law offence?

Photo of Jim McGovern Jim McGovern Labour, Dundee West

As I have said, I am not a lawyer. That is not my background, but if an individual is, as my hon. Friend the Member for Eccles has said, grossly negligent, it should be possible to prosecute that person under this Bill. I understand that other means are available, but surely that should be included in this Bill. That is my view. If an individual is responsible for a death, he should be prosecuted.

Clause 17 seems to prevent such common law offences as attempt, conspiracy and aiding and abetting when associated with the primary offence of corporate manslaughter from being pursued. Why must the possibility of other forms of justice be removed on the creation of a new offence? If a person is individually guilty of causing someone’s death through their negligence or mismanagement, surely they are as liable as the company which let it happen.

My other argument in favour of the amendment is that of prevention and cure. If we could find a way of ensuring that companies pay close attention to health and safety and duty of care matters so that this law was never needed, I for one would be happy. I accept that a fine is a deterrent of sorts, but in large companies, management failures tend to stem from mismanagement that creeps up on them rather than the sort of decision that would be influenced by a large fine. However, the prospect of a prison sentence or some other form of punishment for senior managers would be likely to deter them from acting sloppily, or more likely, spur them on to being better at their jobs.

The prospect of individual prosecution would serve a valuable role in changing behaviour, something that is much needed. My major concern is that senior managers can still act in a way that is reckless and escape punishment. The crime can be punished  corporately and yet the same senior managers could be in other senior roles within a short space of time. That does not feel like justice, and with the Labour party’s commitment to the victim’s feelings, it does not seem to tally with the overall approach to criminal justice in which the victim is granted justice and the criminal is fully prosecuted.

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

I am grateful for the way in which hon. Members have debated the amendments and the new clause, which go right to the heart of the debate on individual liability. I stand here as a Home Office Minister. However, my hon. Friend the Member for Eccles talked about his background and mine is similar in that I was a full-time trade union officer in the printing industry, in which deaths were not a common occurrence but unfortunately many took place that should not have, particularly in paper mills with guillotine machinery. I come to the Committee and to the Bill with that history. Therefore, I hope that hon. Members will reflect on why I think that we are heading in the right direction with corporate manslaughter and not individual accountability. The hon. Member for Rugby and Kenilworth (Jeremy Wright) was right to point out to my hon. Friend that the existence of health and safety legislation means that gross misconduct can result in a conviction.

Despite that fundamental concern, I want to assist the Committee by addressing three points: the gap in the law that the Bill addresses; any gap in respect of individuals; and the steps beyond the new offence in respect of those individuals.

It will come as no surprise to the Committee to hear me say that the principal purpose of the Bill is to define a new and more effective means of holding organisations—not individuals—to account for manslaughter. The controlling mind test has worked in a small number of prosecutions of small companies, but it fails to reflect the reality of decision making in more complex organisations, where failures in the chain of management can rarely be laid at the door of specific individuals. The Bill seeks to address that problem, which is why it shifts the focus away from individuals, and instead bases liability on gross failures in the management of systems and processes within an organisation. The Bill is therefore about establishing corporate liability for corporate offending.

Having set out a new corporate offence precisely because of the difficulty in identifying a single controlling mind, we see a significant problem with saying that a single person who can take responsibility for the organisation’s failure can be, and should be, identified. If they are not already responsible under the criminal law for their actions, what would their criminal liability turn on? In our view, it is not enough to move directly from the new Bill to new individual accountability. That needs to start from current individual responsibility. As the law stands, individuals can already be prosecuted for manslaughter where they grossly negligently cause a death. Health and safety law also provides sanctions against individuals whose conduct has contributed to health and safety failures. The new offence does not alter those provisions.

If we want to step beyond that, we need to be clear about the circumstances that are to be covered that are not already covered by criminal offences. There are  dangers, in our view, of simply looking to secondary liability for the answer, as new clause 5 or amendments Nos. 151 and 152 suggest. In order to show that an individual aided, abetted, counselled or procured an offence, it would generally be necessary to show that the accessory had a similar state of mind as the main offender, or at least knew or intended that the offence would be committed. In the context of corporate manslaughter, that would mean that an individual would need to be aware of the picture of failing in the organisation, at least contemplate it being grossly negligent and act in a way that supported or sought to bring it about. In those circumstances, however, it is likely that an individual charge of manslaughter would be possible.

The amendments in the group would not achieve any significant extension of individual liability in any event, but they would bring new issues to any trial. As well as assessing individual liability in terms of existing criminal offences, such as manslaughter and offences under health and safety law, the police and prosecution would need to explore any potential differences under the provisions relating to secondary liability. We are not persuaded that that would be a useful exercise.

So if secondary liability is not the answer, how do we address questions about board level responsibility? That is an important issue that goes outside the remit of the Bill, and wider than my Home Office responsibilities, so I tread with care. Director leadership clearly plays a key role in health and safety, and it is reassuring that research by the Health and Safety Executive has found that four out of five organisations provide leadership on health and safety at board level. However, before the hon. Member for Kingston and Surbiton rises, I acknowledge his point about the remainder that do not do so.

The Health and Safety Commission has been considering how that situation can be improved and recently issued revised guidance to inspectors to encourage them more routinely to press for courts to disqualify directors when they are convicted of health and safety offences. Clearly, that will be effective only where individuals are prosecuted, but ensuring that the full range of sanctions is applied in those cases is a step in the right direction.

The Health and Safety Commission has also been considering whether directors should be under specific statutory duties in relation to health and safety. That is an important issue and raises questions about how best to secure improvements in boards taking active responsibility for health and safety management and in securing their accountability. My hon. Friends the Members for Eccles and for Manchester, Central (Tony Lloyd) have taken that issue up with the Secretary of State for Work and Pensions, as I have, and we will be discussing it further with the Health and Safety Executive. It is important that the issues are addressed properly and debated, even if the Bill does not directly address them.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry), Liberal Democrat Spokesperson (Trade and Industry)

I am sure that the Committee will be pleased to hear that the Minister and his colleagues are taking the matter up with the Secretary of State for Work and Pensions, because clearly an awful lot could be achieved through the health and safety at work mechanisms. Can he be a little more forthcoming about  the timetables or particular issues and, if not, will he assure the Committee that he will either write to members or come back to the matter on Report?

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department 12:15, 31 October 2006

I am grateful to the hon. Gentleman for the spirit in which he suggests that. An initial meeting has taken place and others are planned, but I am not sure whether we can get an outcome before Third Reading and Report. If it is helpful to the Committee, I shall—

Photo of Ian Stewart Ian Stewart Labour, Eccles

I am conscious that the Minister might be close to the end of his comments. To emphasise the point that my colleagues and I have been making, I remind him of what I said on Second Reading. I shall paraphrase. I tried to show that no individuals in a company are more important to ensuring health and safety in the workplace than directors. They decide the level of investment and the priority given to health and safety, they decide whether the company is subject to proper health and safety audits and they encourage recognition of unsafe practices and their remedies. Other legislation recognises the need to have a range of sanctions and I hope that the Minister will realise that the intent is to identify what we consider to be an anomalous position and a wrong that needs to be put right. I hope that before he sits down he will say something that will comfort us in our belief that we should try to work towards a solution that is acceptable and that is not about vengeance but about a civilised society trying to stop accidents from happening and putting them right when they do.

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

I do not disagree with my hon. Friends’ objectives or the Committee’s. I am trying to point out, supported by the hon. Member for Beaconsfield, that the route that my hon. Friends have chosen is not appropriate in the Bill. They could damage what they are trying to achieve on individual liability through the amendments that have been tabled by the hon. Member for Kingston and Surbiton.

Photo of Ian Stewart Ian Stewart Labour, Eccles

Which I will not be supporting.

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

I hope that my hon. Friend will not be supporting them, and I hope that I can convince him not to press his new clause. That is not to say that we do not need to continue to try to find a route to meet the aspirations of my hon. Friends, but that will not be done through the Bill. Of course we believe that employers should take health and safety seriously, and no employer will be able to evade their responsibilities under the Bill. I hope that it will act as a wake up call to those employers who believe that they can flout health and safety, through the provisions on corporate probation, and that it will ensure scope for real improvement in workplace health and safety at work practices.

Individual liability is an issue that many organisations, particularly the trade union movement, have long argued for. Despite any sympathy that I might have had in the past for the arguments represented, that is not a matter that the Government can or are willing to move on in this case. It might be  that the issue of board level responsibility for health and safety may need to be considered further—it is something that I would personally support—as well as the introduction of specific health and safety duties at director level by amending the Health and Safety at Work, etc. Act 1974. That is the point of the discussions that were going to take place. I shall write to the hon. Member for Kingston and Surbiton to outline what can be done, and, if he is willing to participate—I am sure the Opposition will be—I shall use his good offices to see how we can develop those ideas within that framework.

I do believe that there are major problems with the introduction of individual liability in the Bill, for the reasons that I outlined. I hope that my hon. Friends will understand why we do not want to pursue that issue and will explain to senior officials in the trade union movement why it is wrong to attack the Bill for not being relevant or for not being worth the paper it is written on. I hope that the Committee will consider the detail of what has been said and other remedies that would be more appropriate. Clause 17 will help, which is why it should stand part of the Bill. I hope that my hon. Friend recognises the points that have been made and does not press the new clause to a Division.

Photo of Roger Gale Roger Gale Conservative, North Thanet

The hon. Member for Eccles must understand that, when I call the hon. Member for Kingston and Surbiton, the debate will be wound up. If he wishes to speak, he needs to do so now.

Photo of Ian Stewart Ian Stewart Labour, Eccles

The Minister invited me to provoke him. At the time, I said that I had no intention of so doing, but it is too attractive a proposition to let go. I have been consistent, as have my colleagues. We said that the Bill is a step forward. However, we are not completely convinced that it goes far enough and have tried to put such arguments across during the proceedings. The comments of my hon. Friend about the potential doorways outside the Bill are to be welcomed, although there is no guarantee of that. Trade union leaders and others will come to see that the Bill is a step forward and, on the basis that we are still examining the doorways as described by the Minister and perhaps others, I beg to ask leave to withdraw the new clause.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. New clause 5 has not yet been moved, so it does not need to be withdrawn.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry), Liberal Democrat Spokesperson (Trade and Industry)

We have had a good debate. As has often happened during our proceedings, the hon. Member for Beaconsfield has shown weaknesses in particular arguments and strengths in others. I will put it no more than that. I shall not press the amendment to a Division, but I hope that we can return to such matters on Report for two major reasons. First, the arguments of the hon. Gentleman and the Minister are that there are already individual liability offences, so we do not need to worry so much. However, as a non-lawyer, it strikes me that sometimes it is useful to have a series of offences that might relate to different degrees of involvement in the causation of an accident. Individual gross negligence manslaughter could be the highest offence, which would inevitably have high levels of  proof and be difficult to register, as we have seen in practice. Other offences could be slightly less serious and might be more easy to prove and, thus, require a lower barrier. That is how the criminal law works in many other areas.

There is not only a black-and-white situation in which there is only one offence and a person either commits that offence or is innocent. There are different degrees. Given that the Minister wants to fill the gaps, we must ask ourselves whether there is a gap between individual liability that can be proved at the level of individual gross negligence manslaughter and at the lower end of being a secondary party to a health and safety at work offence. I am not sure. There might be a gap between those two offences that we would fill if we got rid of clause 17. I hope that the Minister will reflect on it. I will certainly do so, as I am sure will other hon. Members. If we do not fill the gap, we might not give individual families that have been bereaved and victims the ability to prosecute when clearly an offence has been committed, albeit not one of serious individual gross negligence manslaughter.

My second point echoes that made by the hon. Member for Eccles. I too welcome the Minister’s argument that, if we could improve the regime so that we could strengthen individual responsibility and accountability for health and safety management, it would be a real step forward. This bit of the Bill might not be the place to do it; perhaps such matters are outside the Bill. However, if through pressing and working with the Minister, we can achieve that objective in a different way, that will find consent throughout the House. Ultimately, we are all about trying to prevent accidents in the first place by ensuring that the different laws that come together make the deterrents clear.

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

I do not make a false promise to the Committee. There were occasions during the passage of the Consumer Credit Bill when the three parties were consensual in their view of how the industry should operate. We had some successful meetings with the industry as a tripartite group. I see us operating similarly in pursuing the Bill, because there is unity on the outcome. It is just how we will get there that is difficult.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry), Liberal Democrat Spokesperson (Trade and Industry)

I certainly did not see it as a false promise from the Minister, because he is a Minister of his word. His record as a trade union official and his knowledge of the area have been very helpful in our debates. I am sure that he has been pushing behind the scenes as well as in public to move things forward. I am glad that we have had this debate and that we are beginning to clarify the core issues. Therefore, I do not think that we should divide the Committee at this stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 ordered to stand part of the Bill.

Clause 18 ordered to stand part of the Bill.