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The problem that the Government have faced with the Bill—I hope that I am not being too unkind to the
Home Secretary when I say that it was reflected in the slight hesitancy of some of his remarks—is that, as so often happens, they are caught between a rock and a hard place. The Government wish to improve our body of legislation, which would be of value, but at the same time they have very properly not been prepared to be pushed or bulldozed by those who want the introduction of draconian legislation, especially in terms of penalties on individuals, that would go outside the scope of our normal principles of law.
I entirely agree with the Home Secretary that we must deal with corporate manslaughter. The only fair way in which to deal with manslaughter allegations against individuals, with custodial sentences being imposed if transgression is shown, is under the existing framework of the manslaughter law. If we were to start departing from that—some have suggested that we should—it would quickly become apparent that people would be treated unjustly. It should not be the role of Parliament to do that, however tempting it might sometimes be.
Having taken that decision and gone on to examine the problem of fixing corporations with allegations of manslaughter, which is inherent, and of which we know from the case of the Herald of Free Enterprise, which the Home Secretary and others cited, it seems that the Government have tried very hard to keep the notion of corporate manslaughter and produce a new framework that will enable corporations to be convicted. However, they face the problem of having ended up with a Bill about which it is at least legitimate to raise the question: what does it add to our existing laws in practical terms? I shall concentrate especially on that point, but before I do so I want to consider several of the Bill’s details and flag up for the Home Secretary some areas at which we will need to look carefully.
The Home Secretary made it clear that the Bill is aimed at corporations. That makes it different from the Health and Safety at Work, etc. Act 1974, which is a much wider measure under which it is quite common to prosecute unincorporated associations without difficulty. Indeed, shortly before I became a Member of the House, I was involved in the prosecution of an unincorporated association: Lloyd’s Register of Shipping. Having seen not only the seriousness of that case, which was about the port Ramsgate walkway collapse in which seven people were killed, but the size of Lloyd’s Register of Shipping and the importance of its role in certifying new engineering structures concerned with the marine environment, I rather disagreed with the Home Secretary when it was suggested that unincorporated associations might not be an important element in ensuring health and safety at work. Of course, I also accept that in many cases unincorporated associations are likely to be small organisations, but if ever the Home Secretary wanted an example of an unincorporated organisation that is not small, there is one. I am bound to say that I am a bit worried about the prospect of putting on the statute book legislation that cannot encompass such an organisation, so I hope that we will be able to consider that during the Bill’s passage.
The Home Secretary properly identified the fact that the Bill includes important innovations. The removal of
Crown immunity from Government Departments is welcome and a much-needed change. However, I was a little worried to note that the relevant schedule could be added to or taken away from by way of the negative procedure. That was not because I thought that the Home Secretary was suddenly going to say that he wanted to remove bodies from the list—although that would always be possible—but because if we are going to get the Bill right, we must decide at the outset who we are aiming it at. I thus have serious reservations about using the negative procedure to change the list. We need to use the affirmative procedure.
We have touched on the whole issue of public authorities. The Home Secretary was quite right when he said that I might be wrong about the NHS health trust in the context in which I put my point to him. Having read the Bill, I am just not sure. If someone were put on a health trust trolley that collapsed and caused the person to suffer a serious injury, I have little doubt that the health trust could be responsible. If a patient falls down a staircase or is injured in a lift, it is clear that, as an occupier of premises, the trust will be covered by the legislation. However, the position is rather less clear to me when it comes to, for example, the training of medical staff. In a case in which I had a peripheral involvement, some junior hospital doctors were prosecuted for manslaughter for killing a patient. They were very junior and their circumstances were such that there might be some degree of public sympathy for them, but serious criticism was made of the health trust for the manner in which it had looked after the doctors and provided them with supervision and training.
At present, that matter is certainly covered by the Health and Safety at Work, etc. Act, but would it be covered by the Bill? I do not know. The Home Secretary might be able to intervene and tell me straight away that I am worrying about nothing, but it seems to me that that case reveals the grey area between direct activities, such as running premises, and public policy issues, such as whether enough money was spent on the doctors’ training. We shall have to focus and concentrate on that matter.
Rob Marris: Now that the hon. Gentleman has finished that section on the health service, may I take him back to the question of amendments to schedule 1 and the procedure for making them? He and I clearly read clause 19 differently. The negative procedure is used in relation to amendments that fall within subsection (3)— for example, if the Department changes its name, as the Office of the Deputy Prime Minister did. Otherwise, the affirmative procedure applies under subsection (2). If my reading of the clause is correct—of course, it is subject to correction—the hon. Gentleman’s fears are groundless.
Mr. Grieve: The hon. Gentleman may well be right. We can consider the matter in Committee, and if that phrasing is considered to be reassurance enough, I shall be wholly content. I read subsequent paragraphs of clause 19(3) as putting a gloss on that, but perhaps I am becoming too cynical. I am grateful to have my faith in human nature restored by the hon. Gentleman.
Peter Bottomley (Worthing, West) (Con):
In Committee, my hon. Friend may want to give further
consideration to his point about whether a failure to spend enough money would be covered by the Bill. I think that the Home Secretary, to whom we are grateful for presenting the Bill himself, would say that not spending enough money is not in itself sufficient, and that gross negligence is needed.
The context of the debate is the heart-rending events that have affected members of the public, or people who have been passengers, or employees of organisations, but we ought to recognise that, because of our tripartite approach over the decades and the Health and Safety at Work, etc. Act, this country has a lower level of death and injury at work than most other countries, and we are trying to improve our record. We are not the worst.
Mr. Grieve: I agree entirely. I was going to make that point when discussing the current operation of the Health and Safety at Work, etc. Act. My hon. Friend is correct: our record on industrial accidents is not bad at all. Indeed, the pattern of deaths and injuries in the workplace shows a consistent diminution, which is greatly to the credit of the activities of the Health and Safety Executive.
John Reid: I hesitate to intervene in a disquisition between three such learned and honourable Gentlemen. If I am wrong I shall write to the hon. Member for Beaconsfield (Mr. Grieve), but my understanding is that in the case he mentioned, the health trust would be covered as a trust. It would not be outwith the scope of the Bill; it would be covered as an incorporated body. As for the scope of its actions that would be covered by the Bill, budgetary allocations would be excluded, but the nature of the training would be included. If it could be shown that there was gross negligence in the doctors’ training, the trust would have a corporate responsibility.
Mr. Grieve: I am grateful to the Home Secretary; that is indeed reassuring. I raised the question because it troubled me when I read the Bill, and because it illustrates the fact that the Bill deals with a complex area of law. Having been picked up by the hon. Member for Wolverhampton, South-West (Rob Marris), I would be the last to pretend that one reading of the Bill has enabled me to become a master of every aspect of its detail.
I have touched on the issue of the activities of the police. Some people will be puzzled about the extent to which the police will or will not be subject to the operation of the legislation. We will have to examine that matter further.
The real nub of what the Government have attempted to do lies specifically in trying to maintain in the Bill the principle that this is corporate manslaughter. In its original proposals, the Law Commission suggested that the duty of care test on which the entire edifice will rest was a mistake. It took the view that that was a civil concept, which translated only with difficulty into the field of criminal justice.
On reading the Bill—no doubt I shall reread it and re-reread it—I was mystified to see how the Government were adding extra complexity, which does not exist in relation to common-law manslaughter, by providing a split role of judge and jury in which the
judge makes, in effect, a civil ruling on whether the duty of care existed, and only after that does the jury make the decision on whether a breach has occurred. One of the points on which we shall require clarification—perhaps in the winding-up speeches, but certainly in Committee—is how, procedurally, that will work in court. Is it to be a matter of the judge hearing all the evidence and then, prior to final submissions, making a ruling, or is the ruling to be made at half-time? Is the ruling to be appealable before the end of the trial, or is an appeal on whether there was a duty of care to take place only after the trial has reached a conclusion? I apologise to the House for becoming legally “techy”, but whether the legislation will work hinges on whether we get the technical aspects right. I hope that we will hear some indication that the Government have given the matter some thought.
Given that in ordinary common-law manslaughter cases juries have routinely been asked to consider issues of duty of care, as they have in respect of one person’s responsibility toward another, I am a little surprised that consideration of that matter is now to be removed from the jury. Why are juries suddenly no longer to decide that question? My experience is that their common sense has usually ensured that such decisions are not difficult for them. I raise that question in the hope that we might have some answers.
Mr. James Clappison (Hertsmere) (Con): May I ask my hon. Friend to bring his experience to bear on a matter that strikes me as relevant? I am thinking of cases in which there is a charge of corporate manslaughter against a corporate body and, in respect of the same events, a charge against an individual of ordinary manslaughter—if I can put it that way—through gross negligence, and perhaps offences relating to health and safety legislation? Does he see in the Bill’s provisions any obstacles to all those matters being tried within the same trial, to enhance the administration of justice and save costs?
Mr. Grieve: My hon. Friend makes an important point. I doubt that it is possible to try all those charges together in one trial. In fact, I believe that one of the consequences of the Bill—I am jumping my own train of thought at this point—will be incredibly long and complex post-accident periods before final resolution of cases. I know that happens now: in some cases in which I have been involved it has been suggested that a charge of corporate manslaughter or manslaughter might be brought against an individual, the consequence of which has been to delay the health and safety prosecution by two, three or four years. That cannot be right for the relatives of the deceased, it leaves defendants in a state of uncertainty for prolonged periods—periods which one must be mindful of trying to minimise—and by the time the case comes to court, the public focus on the issue has almost completely gone.
I do not mean this at all disparagingly, but I think that one of the reasons why the Government decided to stick to the concept of corporate manslaughter was their desire for the very words to heap opprobrium on corporations that are convicted.
Long delay between the incident and conviction is clearly undesirable, yet the evidence from health and
safety at work cases is that the delays, even without the addition of corporate manslaughter, are already very long. I hardly ever have a case that is not 12 or 18 months old by the time that it gets to court, and those are cases concerning routine deaths—if hon. Members will excuse the expression—without any technical complexity at all. Major trials with which I was involved in the 1990s took three, four or five years to reach court. I would very much like to reduce that period, but I fear that the consequence of the legislation will be to add to it. If there is anything that we can sensibly do to minimise that, we should consider it.
Earlier, I mentioned remedial orders. After I made a remark that attracted a certain amount of controversy, the hon. Member for Barnsley, West and Penistone (Mr. Clapham) said that he thought that remedial orders would go further than existing measures. I do not think that that is the case, because the Health and Safety at Work, etc. Act 1974 provides not only for prohibition notices but for improvement notices. May I remind hon. Members of the scope of improvement notices under section 21? It states:
“If an inspector is of the opinion that a person...is contravening one or more of the relevant statutory provisions; or...has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated, he may serve on him a notice... requiring that person to remedy the contravention”.
Unless the Home Secretary can show me that the Bill will bite on organisations that are immune under the Act—I do not think that it will, but I am always prepared to stand corrected—I think that clause 10, although included, I am sure, with every good intention, is unnecessary and redundant. Remedial orders can be highly technical, and many a trial judge might be rather unwilling to get involved with them, but at the conclusion of the trial, long before the judge could make any pronouncement on remedial orders, I would expect the Health and Safety Executive, which is not fettered by any prosecution, to intervene with the prohibition and improvement notices needed.
Mr. Andrew Dismore (Hendon) (Lab): I wish to raise two issues. First, Crown immunity still applies under the Health and Safety at Work, etc. Act, although it does not do so under the Bill; I think that it should not apply under the 1974 Act, but it does. Secondly, when the Health and Safety Executive issues an improvement or prohibition notice, it does not do so with any transparency. The decision is made by the agency behind doors. However, under the Bill the order will be made after a full trial in court, with all the evidence set out for the public to see. The decision will be made publicly by a High Court judge, who may, I suspect, sometimes be rather more robust than the Health and Safety Executive.
Mr. Grieve:
I am not sure that I agree. There are two points to make. First, if an improvement or prohibition notice is contested, there is a hearing in front of an employment tribunal, which takes place in public. Secondly, in the majority of cases in which I have been involved, on sentencing it has been made perfectly clear in court that improvement and prohibition notices had
been served—indeed, they often form part of the evidence in the case—and the public will have been made fully aware of the nature of the prohibition and improvement notices. Again, that is a matter that we can consider. It struck me when I first read the Bill that—with the caveat that the hon. Gentleman properly picked up on—if organisations covered by the Bill are not covered by the 1974 Act, remedial orders against a Government Department might have some relevance. We should be careful not to over-egg the pudding in that respect; otherwise, we give the public the impression that something highly novel is being introduced when it has been in place for a considerable time.
Jeremy Wright (Rugby and Kenilworth) (Con): I apologise to my hon. Friend if he is about to come on to this subject, but he will note that, under the Bill, if a remedial order were breached, penalties would be imposed. How does he think that a remedial order can be monitored, to determine whether or not it is being complied with? Obviously, it is easy for certain other penalties relating to criminal matters to be monitored to ascertain whether they are being complied with, but monitoring a remedial order probably requires a greater degree of technical expertise.
Mr. Grieve: My hon. Friend makes an extremely good point, which ties in with the respective roles of the Health and Safety Executive, the Crown Prosecution Service and the police which, to my mind, remain somewhat opaque. That will be of key importance if the legislation is to have any force at all. A protocol governing the investigation of death is currently in force between the HSE, the CPS and the police, as even today there are occasions when the police and the CPS become involved because they believe that manslaughter proceedings may follow. May I tell the Home Secretary—this follows on from my earlier comment about length of time—that those are complicating features in the investigation of offences? I can only speak from my experience, but I say categorically that the moment that the police become involved in the investigation of a health and safety offence, the case takes considerable time, and in many instances I was left with the distinct impression that the required expertise is simply not available.
I do not know how we will work our way around that. I note that in the submissions made to the Joint Committee, the Health and Safety Executive made it abundantly clear that it did not wish to become involved directly in bringing corporate manslaughter prosecutions, because it took the view that, given the complex construct that had been put together, it would not have the relevant expertise, and involvement would in fact inhibit its other work. That is the inference that I derived from its submissions. In those circumstances, how will the process be managed?
To move on to the point made by my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright), at the end of the process who will monitor the remedial order? I assume that it will be the Health and Safety Executive, because I cannot imagine anyone else being in a position to do so. We have, in the Health and Safety Executive, a reservoir of outstandingly good expertise, as I know from direct personal experience. It
ranges across every area of industrial work and activity, whether the circumstances relate to the nuclear inspectorate, the rail inspectorate or, indeed, to more general concerns.
It is worth bearing in mind, too, that many prosecutions brought under the 1974 Act are brought by local authorities, but they have great difficulty finding the expertise to bring those prosecutions. If a remedial order is imposed by a court, and it falls outside the Health and Safety Executive’s responsibility because it applies to a warehouse—the operation of a warehouse does not fall within the Health and Safety Executive’s remit—it is a case for a local authority. Some warehouses have thousands of square feet of storage, and adopt complex methods of operation. Who will supervise the remedial notice in those circumstances?
Rob Marris: I am grateful to the hon. Gentleman for his generosity in giving way. I cannot remember, but my recollection is that most offences under the 1974 Act relating to prohibition orders are subject to a fine, which is on a scale. However, it appears from clause 10(4) that failure to comply with a remedial order could be subject to an unlimited fine. If I am right about that difference, it suggests that there is a difference between a remedial order and a prohibition order, in terms of the fine that can be levied for breach thereof. That would be a more powerful incentive for the employer.
Mr. Grieve: Yes, but the other way of looking at it is that under the 1974 Act someone who does not comply with an improvement notice will face the end of their business, full stop—they will no longer be allowed to operate. In all enforcement proceedings in the public sphere, history has shown that it is usually the threat of an injunction, whichever form it takes—in the civil courts or through a magistrates court—that ultimately brings about compliance, because such an injunction means that people can no longer earn their livelihoods and are put out of business, which they richly deserve if they do not comply with such orders.
I have to say that I am not persuaded by these measures. I do not, with the single caveat about remedial orders applying to Government Departments, whereas improvement notices do not, see their advantage. It is worth pointing out that the Health and Safety Executive already issues improvement notices through the Crown procedure against Crown bodies and the use of Crown notices and censures—for example, 14 in 2003-04, 11 in 2000-01, and six in 2004-05. It also occasionally issues prohibition notices against Government Departments. That must have worked all right, otherwise we would have heard about it in this House. I would rather hope that the Government were complying with a procedure that they themselves had set up. To that extent, returning to the comments of the hon. Member for Hendon (Mr. Dismore), remedial orders may add very little to what is available in this setting.
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