Examination of Witnesses (Questions 554
- 559)
MONDAY 21 NOVEMBER 2005
FIONA MACTAGGART
MP, MR ADAM
SMITH AND
MR NICK
FUSSELL
Q554 Chairman: Minister, thank you
very much indeed, we are very grateful to you for joining us this
afternoon. Could you ask your two officials to introduce themselves
for the record?
Mr Smith: I am Adam Smith, Bill
Manager in the Home Office.
Mr Fussell: I am Nick Fussell
from the Home Office Legal Adviser's Branch.
Q555 Chairman: Thank you particularly
for getting here ahead of the schedule we gave you, Minister,
we made good progress earlier. Is there anything you want to say
to us by way of introduction or shall we go straight into the
questions?
Fiona Mactaggart: Thank you very
much indeed. I think the most important thing for me to communicate
is that this has been quite a slow process to date. In 1997 the
Labour Party Conference said that it would introduce legislation
on corporate manslaughter and it was in our manifestos in 2001
and 2005, and I am determined that we should succeed in getting
a Bill which can command support and which can get on to the statute
books. I think that in this draft Bill we have provided a more
effective offence for prosecuting companies by getting rid of
the identification principle and by expecting courts to look at
the issues of wider management failures in a company. I also think
that the reporting of this has under-emphasised the importance
of the lifting of crown immunity within this Bill. This offence
will apply to Government departments and other crown bodies when
they are in the same position as industry, and I think that is
a very important step forward.
Chairman: Thank you very much indeed.
Q556 Mr Dunne: Good evening, Minister.
We have had evidence from a number of victims' groups in particular
and employee organisations arguing in favour of bringing individual
liability within the scope of this Bill. We have also had conflicting
evidence from the employers' organisations, which you might expect.
Today we have had some rather compelling evidence from Judge Judge,
and I have been looking forward to saying "Judge Judge"
this evening and I am pleased to be the first person to do so.
Could you give us your views as to why it is inappropriate for
individual liability to fall within the scope of the Bill?
Fiona Mactaggart: The reason why
there has been a commitment to producing legislation is to deal
with the issue of corporate failure. We needed to create a structure
where you could frame a corporate offence. I think that is the
first important thing. The starting point was to find a way of
attributing very serious management failures within an organisation
to the companies and enabling them to be prosecuted for that as
a company. Cases in the past have highlighted difficulties where
it is difficult to pinpoint specific failures of individuals but
overall insufficient care has been taken. We think that this offence,
which directs it at corporations, really does do that. If we were
to put the energy on directors and senior managers, where there
are capacities within, for example, the existing offence of gross
negligence manslaughter and health and safety offences, it seems
to me the hole in the law is that we cannot successfully proceed
against corporations, particularly those large corporations which
have given rise to the biggest concerns in these offences. We
have successfully proceeded against small companies but consistently
failed to proceed against large corporations. This Bill is designed
to fix that problem. It is not designed to fix everything. One
of the problems about discussing the Bill is that people say,
"Ah, but there is this other failure in the law that you
could do in this Bill". In my view, it having had slow progress
to date, it might be a good thing to do the most important thing,
and the most important thing is to be able effectively to prosecute
the larger companies which have not been able to be prosecuted
in the past.
Q557 Mr Dunne: So you are satisfied
that we can rely upon the other items you have mentioned, gross
negligence within the health and safety legislation, to pursue
individuals if death does arise as a result of gross negligence
at a corporate level and where individuals may be pursued if we
can identify the specific cause in bringing a case against an
individual but not taking on their shoulders the corporate responsibility
as well. They have the individual responsibility and that is good
enough, is it?
Fiona Mactaggart: I think that
individual gross negligence manslaughter and the capacity to prosecute
individuals under health and safety legislation do give one a
framework where the individual level of responsibility can properly
be dealt with. At present there is not an effective corporate
offence for the big corporations. It seems to me that what we
ought to do here is to focus on the issue of corporate responsibility,
and that is what this is seeking to do.
Q558 Mr Dunne: Can we just move on
a bit to the next stage of directors' duties. At the moment there
is not a statutory framework for health and safety responsibilities,
and we have had evidence from some parties that we should try
and remedy this as part of the Bill. It is not part of the Bill
at the moment. Do you envisage the Government bringing in regulations
in due course to make health and safety responsibility a statutory
responsibility of directors?
Fiona Mactaggart: You will be
aware that the Health and Safety Commission is reporting to the
Government shortly on this issue and I do not think it would be
right to pre-empt their report about how it should be taken forward.
The same objection that I had to your earlier point to some degree
applies here. We have a Bill here which has a degree of internal
consistency, it makes sense, it is based on a duty of care, it
is based on existing legal obligations and it deals with the biggest
problem, and the sensible thing that we need to do in my view
is to make progress with this Bill.
Q559 Mr Dunne: Could the Government
have used the Companies Law Reform Bill to introduce these duties?
Fiona Mactaggart: Well, the Companies
Law Reform Bill is more about the way that companies are set up
and run and their corporate management rather than about the kinds
of issues that are directly dealt with here. When you are talking
about company directors' responsibilities to shareholders, for
example, it is not my field but to put directors' duties in relation
to health and safety offences into that, I do not know what impact
that would have on that legislation. If I was managing that Bill
I might feel as though someone was trying to stick some other
things into a Bill where they did not necessarily fit. As I understand
it, that Bill is designed to codify existing common law duties
which directors have to the company. I think that is rather different
from putting what at the moment is guidance on a statutory footing
and obviously we would need consultation as to how we should do
that.
| 
