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Without that, the only option is prosecution for regulatory offences. However—this picks up a point raised by the hon. Member for Hertsmere (Mr. Clappison)—there is a strong argument that it is an abuse of process to charge a company with two
offences, corporate manslaughter and breach of the Health and Safety at Work, etc. Act, arising from the same circumstances. But without a conviction under the Act, there can be no individual liability of directors or managers under section 37. We could end up with corporate manslaughter charges actually reducing the individual liability of directors in the most serious cases.
Given that clause 17 also excludes secondary offences, I believe that one of the main requirements of reform has been rejected. After all, the purpose of the Bill must be to act as a deterrent, which, without individual liability, it is far less likely to do.
Let me end with a short comment on jurisdiction. Much has been written about it, especially when the failures have been in England and Wales but the deaths have occurred in either Scotland or Northern Ireland. However, I am anxious that we should not rule out possible prosecutions when a death could be further afield.
It is well established that inquests can be held into deaths abroad—indeed, they may be required under human rights obligations. What if an inquest reveals facts that show that serious management failure in England led to a death overseas, but, owing to the Bill’s limited jurisdiction, those responsible cannot be prosecuted? Of course, ships and planes may be under our jurisdiction, but what of the package tourist killed on a far eastern holiday as a result of the substandard construction of his hotel, which the British-based tour company knew about and ignored, or killed by bandits or terrorists when the tour company had clear warnings but turned a blind eye in the interests of profit? I believe that we would face immediate calls for further change in the law, as has happened in relation to compensation for victims of crime abroad as a result of recent terrorist attacks.
Having said all that, I believe that the Government are to be congratulated on the way in which they have engaged with so many organisations in considering suggestions for improvement. However, given the Bill’s current drafting, I also believe that the answer to my original proposition “Will it be easier to prosecute companies that kill?” is a resounding “No”. While some obstacles have been overcome, other more serious obstacles have been created. I have highlighted just some of the shortcomings which I believe must be addressed in Committee, so that we can all welcome the Bill as a major improvement in health and safety in the workplace, in our transport system and in our public services, ensuring that our manifesto commitment for three elections is met in full.
6.58 pm
Mr. Edward Davey (Kingston and Surbiton) (LD): Home Office Ministers will be pleased to know that, unlike the hon. Members for Beaconsfield (Mr. Grieve) and for Hendon (Mr. Dismore), I am neither a specialist in health and safety law nor a personal injury lawyer. However, like them, I am prepared to give the Bill a guarded welcome.
Introducing the legislation, the Home Secretary rightly drew attention to the need for it. Too many families look on the disasters that we have seen in this country over the past 20 years, and are suffering still.
They feel that an injustice has occurred, in that the corporations and individuals who were responsible have not faced prosecution or fines as they believe they should have, primarily because of the difficulty of securing convictions under the existing law. What was known as the identification principle—the need to find individual responsibility before one could take the corporation to court—has been the main barrier to successful prosecutions and the Bill is supposed to put that right. To the extent that it goes some way to doing that, despite the criticisms that we have heard today, it is to be welcomed.
We need legislation that can give the justice that the families and wider society require and that ensures that there is a deterrent for the managers of corporations to make sure that they treat health and safety with the seriousness that it needs. There should be no leniency for those responsible for deaths in the work place or as a result of organisational activity.
One is left rather surprised that the Home Secretary did not give more of an apology in his opening remarks. The Bill has been long promised and long delayed. I have counted the number of promises that Ministers have made on the record since Labour came to power in 1997. There have been 12 over those years, beginning at the 1997 Labour party conference, when the right hon. Member for Blackburn (Mr. Straw) promised to introduce an offence of corporate killing. Nothing happened.
We had to wait until 2000, when a Home Office consultation paper promised action. Nothing happened. In the Queen’s Speech at the end of 2000, we were promised a Bill. Nothing happened. We were told in Labour’s 2001 manifesto that there would be action. Nothing happened. We were told that a draft Bill would be published in May 2003. Nothing happened.
I could go on with the list of promises. We were promised a Bill in the 2004 Session. A Bill was published, but did not go through in that Session. We are now the other side of the last election and we have had to wait a year between the publication of the Bill and the debate on the Floor of the House.
There have been a lot of delays, during which there has been a lot of watering-down of some of the promises made to the electorate in three manifestos. It is the duty of this House to ask serious questions about why the Government have U-turned on a number of issues and why the legislation, while welcome, still does not have the teeth it needs. There seems to have been an awful lot of lobbying from Whitehall and corporate interests to water down some of the proposals. I hope that, as the Bill goes through the House, we can put some teeth back into it.
It is right that we pay tribute to the Law Commission, to some of the officials, particularly those who worked on the earlier consultations, and to the Select Committees on Home Affairs and on Work and Pensions, which made real criticisms in their pre-legislative scrutiny of the Bill. My concern is that the Government responded to some harsh criticisms of the Bill by almost ignoring them.
The Home Secretary said that the Government had taken on board some of the criticisms. I see almost no sign of that and would be interested if the Minister could point to any areas of real significance where the
Government have shifted from the draft Bill. Like the hon. Member for Beaconsfield (Mr. Grieve), I am concerned that public expectations that action is being taken are being raised but may well not be met in practice. We have a number of concerns and I want to focus on five.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Gerry Sutcliffe): I may not have time to answer the hon. Gentleman at the end of the debate, but the report made 57 recommendations. We rejected nine and accepted, or partially accepted, the remainder.
Mr. Davey: I may have been corrected immediately, but I guess that the Government have rejected the most serious and significant recommendations, while accepting a few drafting amendments.
Our first concern is with senior management failure. We heard from the Home Secretary that he may move on that issue but I wish to press that point, which is very significant. It is the issue that is supposed to move the legislation on. If we fail to deal with it, we are wasting our time tonight.
The issue of individual liability, referred to by the hon. Member for Hendon, is significant, not least because the Government have U-turned on the issue compared with the previous consultation. There is also the issue of Crown immunity. The Government are right to be proud that they are getting rid of Crown immunity in a number of areas, but many outside this place believe that the number of exemptions in the Bill is large and that they go extremely wide; they are not narrow, as Home Office Ministers sometimes would have us believe.
There is a real danger that a death caused by a public organisation will be put on a different level from a death caused by a private organisation. That seems to be completely wrong in principle and the Home Secretary used some weasel words to justify that discrimination. We should not accept them. If the Government are so keen on victims’ rights, those who are victims of gross negligence by a public organisation, and their families, should be able to seek justice against that organisation.
The fourth issue is the duty of care test, which is part of the core edifice on which the Bill is built. I am told that a number of examples showed corporate negligence at an appalling level where there was no duty of care. The duty of care test is relatively limited in the Bill and we are concerned that the test from civil law is somehow being planted into criminal law.
The fifth area on which I want to focus is sanctions. Others have mentioned the inadequacy of, and lack of imagination in, sanctions on corporate bodies, but what about public bodies? There is a real danger that fines imposed on a public body will simply result in extra allocations of resources to that public body to ensure that the public service that it provides is not hindered. We must think more imaginatively if we are to make sure that public organisations feel the heat of the guilty verdict.
My first set of remarks is on management failure. If the Government stick by their proposal or even change the wording of the Bill in a minor way, they will be storing up problems. The real problem is that the Government are giving an incentive to delegate health and safety issues outside the immediate realm of senior managers. According to surveys of businesses, that is already happening in anticipation of the Bill. Directors are passing down responsibility for health and safety matters to junior managers. They justify that by saying that every factory in the organisation is different, that a one-size-fits-all approach is not appropriate and that the local manager should decide the best way to deal with health and safety matters. It would be perverse if the measure were to reduce the importance of health and safety to corporations. That needs careful examination in Committee because we could end up with a far worse situation.
The hon. Member for Beaconsfield, in some detail, touched on the fact that the test for senior management failure could lead to extra complexity and add longevity to trials as one tries to decide whether there was a senior management failure or a failure of the wider organisation. I hope that, when we get the letter from the Home Secretary, we can have more detail and he will have moved significantly. If not, that will fatally undermine the Bill. We look forward to receiving the letter.
On individual liability, the Government could have approached the issue in a number of ways. The Home Secretary is right to say that it will still be possible to take an individual director to court on a charge of gross negligence. However, he started his remarks by saying how difficult that was, particularly in large organisations, so he was arguing against himself. Clause 17 deals with the idea of secondary liability, whereby if the corporation is found guilty of corporate manslaughter, the individual director
“cannot be guilty of aiding, abetting, counselling or procuring the commission of an offence”.
Striking that provision out of the Bill seems to us quite wrong. It could mean that while the corporate body is penalised, the court cannot deal with the senior level individual who was responsible. We hope that the Government will reflect on that point again in Committee. Justice must be seen to be done and there is a real danger that clause 17 will reduce the courts’ ability to find individuals guilty.
On Crown immunity, the Government’s movement is incredibly welcome. Although I would not use the Home Secretary’s term “historic”, the provisions represent an important move forward. We have seen too many examples in the past of Government Departments and agencies committing serious offences without being held to account for them. I worry that there are too many loopholes. The hon. Member for Hendon referred to loopholes in respect of offences under health and safety legislation. The Government said in their response to the Select Committee report that they would look at the issue again. They need to do so, because allowing such an exemption seems bizarre.
I am particularly worried by clause 4(4), which deals with the exclusion from Crown immunity of services that are “exclusively public function”. Some people believe, perhaps incorrectly, that the provision is so
broad that it amounts to a catch-all phrase that would retain Crown immunity for a large number of organisations. We also want to test that argument out in Committee. Many believe that the provision will affect the custody of prisoners, either by the Prison Service or the police or in immigration detention centres. There is a danger of Crown immunity preventing prosecutions where deaths in custody have taken place. The Chairman of the Joint Committee on Human Rights—the hon. Member for Hendon—would probably confirm that his Committee was indeed worried about that point. Under the European convention on human rights, the authorities have a duty to protect prisoners and there is a danger of this exemption preventing the Government from meeting their obligations.
Mr. Edward Garnier (Harborough) (Con): Do not those remarks underline the need for a robust and independent prisons inspector? The Government want to do away with that, but if we are going to retain the gobbledegook of clause 4(4), it strikes me that it is all the more necessary to resist the Government’s intentions on the abolition of the independent inspector of prisons.
Mr. Davey: The hon. and learned Gentleman is right, but what he said should not lead us to allow the provision to go through unamended. The Home Secretary tried to argue that public bodies were accountable in many other different ways. They might be accountable to the prisons inspectorate and, ultimately, to the electorate. However, there have been too many examples of public inquiries into deaths—as with the Victoria Climbié tragedy, for example—failing to result in anyone taking the wrap. We have also seen calls for public inquiries denied because of the extra costs involved. We therefore believe that the exemption really goes too far. There are also complications with respect to private prisons. As we understand it, such prisons are less accountable than was suggested by the mechanisms that the Home Secretary attempted to pray in aid for the exemption. That makes for an even stronger case for ensuring that Crown immunity does not apply in such cases.
I hope that the provisions on those exemptions can be amended. There is an important link with other points about the exemptions of different organisations being drawn too widely in the Bill. Some hon. Members have mentioned unincorporated organisations and partnerships, and I completely agree with what they said. It was mentioned earlier that the Government had argued that it was far too difficult to include unincorporated businesses into the legislation because they had no legal identity. Yet all those familiar with corporate law and the Companies Act 1985—my hon. Friend the Member for Cambridge (David Howarth), for example—know that such organisations can be taken to court and prosecuted.
Mark Tami (Alyn and Deeside) (Lab): I remain unsure, on the basis of what the hon. Gentleman says, whether the Liberal Democrats are supporting the Bill.
Mr. Davey:
I made it clear in my opening remarks that we will support the Bill, for which we have waited many years. There is a real need to tighten the
legislation in this sphere. We have already heard tonight that, as a result of parliamentary pressure, the Home Secretary is going to shift on one of the matters that I am most concerned about, so I hope that further parliamentary pressure—in tonight’s debate and in Committee—can get the Government to make further shifts. The hon. Gentleman should talk to his hon. Friends, many of whom share our concerns while wishing to support the Government in the Lobbies if there is a Division.
Sir Robert Smith (West Aberdeenshire and Kincardine) (LD): Surely all the criticisms are directed to further improving the Bill, so supporting Second Reading tonight will allow the House to make the improvements that have been outlined in the debate.
Mr. Davey: My hon. Friend is right.
Our fourth concern is with how the Bill is constructed, particularly with respect to the duty of care that corporations and organisations have to bestow on the victim before they can be accused of an offence. We believe that that unduly limits the new offence and that focusing on the civil law definition of duty of care rather than the law of negligence and criminal law amounts to a restriction. For example, one could imagine an organisation, especially if it is a public body, having a statutory duty under health and safety legislation, but no duty of care. Once again, that illustrates a problem with the approach. Surely every organisation owes a public duty not to kill a person by its gross negligence. It is a simple as that. Linking the issue only to duty of care tests under civil law does not go far enough.
David Howarth: Before my hon. Friend leaves this subject, I hope that he will return to the case of Regina v. Wacker, which he mentioned in an earlier intervention. It was a Court of Appeal case about the 58 deaths of illegal immigrants in the back of a lorry. In that case, the defendant said that there should be no liability in criminal law because there was no duty of care in civil law on the ground that all the parties were engaged in a common criminal enterprise. The Bill brings that defence back for corporations.
Mr. Davey: My hon. Friend is right and I was about to touch on that point. Because he has made it so well, there is no need for me to repeat it.
The final issue that I want to bring to the Minister’s attention is sanctions. The Home Secretary said, though he was not speaking very clearly, that the Government were reflecting on new sanctions for corporates and he mentioned a few of them. We know that there is a Home Office review, but I do not believe that it has yet been published. Perhaps the Minister will clarify the date of publication. A Whitehall review is taking place and it could be linked to the Bill to produce new types of sanctions on corporates, so it will be a real shame if it is not produced in time for the Bill’s passage. I am keen to hear the Minister’s guidance on that.
Mr. Sutcliffe:
The hon. Gentleman mentions Professor Macrory and his review of the duties of directors, which is linked to several items of legislation,
including the Companies Bill. We are not in control of when Professor Macrory delivers his recommendations but, when he does, we will be able to consider what he says about penalties and sanctions.
Mr. Davey: I hope that if Professor Macrory produces some proposals with which the Government agree, we will see a separate Bill to amend this Bill and other pieces of legislation to ensure that any new sanctions can be applied. Indeed, the Government may wish to leave it to Parliament to decide, as the Bill makes progress. Several proposals have been made. For example, the hon. Member for Hendon mentioned equity fines and the suggestion of corporate community service is also sensible. Disqualification has also been suggested, although for some reason the Government appear to want to rule that out in this Bill.
As I said earlier, it is a concern that, while the Government are getting rid of Crown immunity in several areas, they have not made any imaginative proposals for sanctions on public bodies, which do not feel any serious pain as a result of fines. The careers of individuals running those organisations might have a black mark set against them, but the organisation involved would doubtless simply put in an extra bid to the Treasury. I do not think that the victims and their families would be very impressed by that. The Government have not done any extra constructive thinking on that point.
I shall end with two minor points. The first concerns the Scottish question.
Stewart Hosie: The Scottish question?
Mr. Davey: I am sure that the hon. Gentleman is aware of this point. Most people interested in the issue were of the view that the Scottish Executive would make its own proposals. That was the accepted view until relatively recently. An expert group was set up to consider the issue and make some proposals, which were, on the face of it, more radical and stronger than those in the Bill. Then the lawyers in Whitehall and Edinburgh got together and decided that it was a reserved matter. That was a late decision, given that it has taken nine years to get to this point.
Stewart Hosie: The hon. Gentleman says that this issue was deemed a reserved matter. Did not the Liberal Democrats and others in the Scottish Parliament vote to Sewel this issue and make it a Westminster responsibility again, after it had been fully devolved all along?
Mr. Davey: It was the recommendation of the lawyers on both sides, and I hope that the hon. Gentleman is not suggesting that they would do something that was illegal. I hope that the Government will say why that decision was taken so late.
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