Examination of Witnesses (Questions 580
- 600)
MONDAY 21 NOVEMBER 2005
FIONA MACTAGGART
MP, MR ADAM
SMITH AND
MR NICK
FUSSELL
Q580 Mr Rooney: I have got a quote
here that they said, "The terminology of negligence and duty
of care is best avoided within the criminal law because of the
uncertainty and confusion that surround it", but then again
they are lawyers. Do you not think it might be better to link
the offences to breach statutory duties under sections 2 to 6
of the Health and Safety at Work Act 1974? Do you not think that
would get round this?
Fiona Mactaggart: The health and
safety duties are designed to be flexible in order to create and
build a health and safety culture. There is obviously at the edge
of health and safety duties some flexibility. The duty of care
is a very clear body of law. It is well tested, there is not much
argument about to whom you owe a duty of care and to whom you
do not. There is much to be said for having clarity in how this
offence should operate whereas health and safety duties are things
that one would want perhaps to grow as one became more aware of
how to improve the health and safety in a particular area of operation,
for example.
Q581 Chairman: I may be wrong, Minister,
but I have got an idea that the argument that a duty of care is
necessary in order to deal with a failure to act rather than the
commission of an act is not an argument that has been put to us
previously over the last few weeks. Is that the one that you rest
the inclusion of duty of care on? I may be wrong. We may have
had loads of evidence on this.
Fiona Mactaggart: It is the one
that I have found most compelling but I will give my advisers
an opportunity to see if there are others.
Mr Fussell: That is right. One
of the questions we have had with the Law Commission offence is
how do you link the victim to the defendant corporation? What
is it that means that the defendant corporation should have been
taking steps to ensure the safety of the victim? We were very
keen to have an offence which did not impose any new standards.
We do not want to rewrite the circumstances when companies ought
to be taking action to safeguard people's safety, and the duty
of care is a mechanism which defines that relationship and the
company knows that if it could be sued for something in negligence
it can be prosecuted under this offence.
Q582 Chairman: I will pursue that
point if I may because what the Bill then goes on to do is define
the circumstances in which a duty of care is owed. In common law
negligence no definition of the circumstances of a duty of care
is needed because that is determined by the courts in individual
cases. What is not quite clear is that a duty of care is being
brought in but because of the difficulty of defining when a company
is responsible we have then got in clause 4(i) a list of circumstances
in which a duty of care is owed. It seems to me slightly having
it both ways at the same time here. We are trying to define it
and we are also trying to rely on what is essentially a common
law concept.
Fiona Mactaggart: That is largely
because of trying to get efficiency in relation to prosecuting
in these kinds of cases, that by drawing a bright line around
where a duty of care is relevant in these cases we can stop some
suggestions of areas where people might argue that there is a
duty of care in this kind of case. I have been asking about whether
people could come up with circumstances in which this list excludes
potential actions and so far I have not found any.
Q583 Chairman: It has been suggested
to us by some witnesses that by, for example, defining duty of
care in a situation where someone supplies a service, the failure
of a social services department to effectively prevent a death
would be excluded from this, because social services are not regarded
normally as supplying a service, they could be said to provide
a service. Are you certain that by putting on the face of the
Bill a list of the type of activities, you are not creating an
area for endless legal argument about whether a particular type
of service is actually covered?
Fiona Mactaggart: Yes, I have
been absolutely advised that we are not. It is clear with the
sort of service you are talking about, if you are providing a
service to an individual, that you owe them a duty of care. If,
however, a health authority was deciding how to provide health
services in an area or even a social services department was deciding,
"How do we provide the whole generality of social services
in this area", they would not in those circumstances owe
a duty of care to every single resident in that area. Nor do I
believe that we ought to make this offence apply in those circumstances,
because a manslaughter offence is not a proper way to deal with
something which is clearly a public policy matter.
Q584 Chairman: That is dealt with
separately in the Bill under the exclusion of public policy functions.
Mr Fussell: The list of relevant
duties of care is designed so it does not exclude any duties owed
in the private sector. However, it is intended to draw a bright
line so as to exclude some potential public sector duties where
there is more uncertainty as to when duties of care are owed.
Q585 Chairman: So that part of the
Bill which excludes public policy functions complements this but
is separate?
Mr Fussell: That is correct. Public
authorities are liable under the Bill effectively when they are
doing the same things which private organisations are doing, but
there are potentially some duties of care which public authorities
owe which are excluded by the relevant duty of care criteria and
the supply of goods and services. In many situations when public
authorities are involved in the provision of services, they will
not have a duty of care in any event, but it was considered important
to try and make that explicitly clear on the face of the Bill
by drawing this line and restricting the Bill to the supply of
goods and services as well as the employer/occupier duties.
Q586 Gwyn Prosser: We have just overlapped
into two specific exemptions which are exclusively public functions
and public policy decisions, questions the Chairman was asking.
Just focusing on those specific exemptions at the moment, bearing
in mind that the charge of corporate manslaughter is going to
be used only in the most extreme, grave and serious circumstances,
why should there be an exemption?
Fiona Mactaggart: Because the
way in which you hold public bodies to account is different from
having a criminal prosecution. If, for example, there is a death
in custody, which is one of the exclusions, the Prisons and Probation
Ombudsman investigates that individual death; there is sometimes
a public inquiry about it; you, Members of the House of Commons,
hold the Minister to account; it is up to you to decide, for example,
the legislative framework that we make these decisions within.
We should not substitute the courts for a form of parliamentary
accountability. What we were seeking to do was to retain proper
parliamentary accountability rather than to give that accountability
to the courts for Government action.
Mr Fussell: May I just add, that
one question which needs to be asked in terms of removing any
of these immunities, is how would the remedial order powers work,
for example, with a death in custody situation, and that feeds
into the point the Minister has made about accountability and
who is taking decisions about how these core public services are
run.
Q587 Colin Burgon: Dealing with deaths
in custody, we are dealing here with prisoners under the control
of the state, particularly vulnerable people.
Fiona Mactaggart: Absolutely.
Q588 Colin Burgon: How does the Government
justify deaths in custody being exempt from the offence?
Fiona Mactaggart: I can envisage
a situation where someone in custody was to die where one did
owe a duty of care, for example, as an occupier of the premises,
if there was inadequate ventilation, or something like that, in
a prison, and as a result someone was to lose their life, and
actually we would be responsible for that. But there is an issue
in relation to, for example, the specific authority which the
state has to detain someone in custody where it would be inappropriate
I believe for saying that—let us take a real situation—to
detain someone who has previously attempted suicide, which is
the case with something over half of women in prison, could be
said to be recklessly risking them inflicting their own death.
It is not appropriate for that kind of matter to be dealt with
through a manslaughter charge. It is proper, as has been done,
for that matter to be dealt with by inquiries of this Committee,
by legislation in the House of Commons, by inquiries by the Prisons
and Probation Ombudsman when it relates to that particular point.
However, if a prison as the occupier of premises leads to a death
of a prisoner, that might engage this.
Q589 Colin Burgon: I deliberately
used the phrase "prisoners under the control of the state"
because it leads on to my next question. In your preamble to the
Committee you talked about this Bill being aimed at corporations
and companies. Why should private prisons be exempt?
Fiona Mactaggart: They would be
in exactly the same position as the state in this case. As I pointed
out, the prison as a provider of premises might have liability
in terms of the way in which it constructed its cells, for example,
but in terms of the decision to detain, it would not. Her Majesty's
Prison Service and a private provider, Securicor, whoever, would
be in exactly the same situation in those circumstances, and that
would be right, because the accountability for the initiation
of detention is held by the Home Secretary.
Q590 Colin Burgon: Are you happy
that private prisons would receive that exemption then?
Fiona Mactaggart: It is an exemption
in relation to the decision which is that of the state, it is
not an exemption in relation to every other thing, if you see
what I mean. A private prison as an employer—if for example
they did not look after their staff properly and they did not
have proper management procedures which maintained the safety
of their staff—may have liability in that way, as would
a public prison.
Q591 Colin Burgon: It is a question
we will definitely be coming back to again in the future. One
of the arguments that the Government uses for the exemption is
that deaths in custody are subjected to very rigorous procedures
and investigations. According to the last figures I have seen
by the Joint Committee on Human Rights, between 1999 and 2003
there was on average a death every four years. Are you happy there
are such rigorous procedures in place when those figures are so
deplorable?
Fiona Mactaggart: There are a
lot more than one every four years.
Q592 Colin Burgon: Every four days,
I am sorry. It reinforces my argument. Thank you.
Fiona Mactaggart: It is very difficult
to look at the figures about frequency of deaths because they
are relatively small numbers—well, they are relatively high
numbers—because of the fact we are not talking about a large
cohort here. It is difficult to see whether the action which has
been taken by the Home Office which we are driving through both
public and private prisons—in terms of increasing safer
custody arrangements, in terms of reducing ligature points in
cells, in terms of reducing the distress prisoners face in their
first reception into prison which is the time at which they are
most at risk of self-inflicted death, in terms of improving risk
assessment in regard to cell sharing and so on—it is quite
difficult to say to what degree are interventions having a result,
because you need to look at these figures over a period of time.
But we are determined to reduce the incidence of deaths in custody.
We do ensure that where the Prisons and Probation Ombudsman makes
recommendations in his report, those are disseminated throughout
the Prison Service. We have just announced that we will, for example,
following the group of deaths at Styal Prison look at the particular
experience of very vulnerable women prisoners and their likelihood—
Q593 Chairman: We had Baroness Scotland
last week talking about prison suicides in general. A specific
point: if a prison puts a psychopathic racist in a cell with a
young black man and the young black man is killed, are the existing
mechanisms adequate to hold people to account in those circumstances?
Fiona Mactaggart: I think they
are. If you take the case which echoes the facts you have just
described, you are looking at something which has been subject
to very substantial public inquiry.
Q594 Harry Cohen: On the territorial
application of the offence, the Government has limited it to a
death sustained in England and Wales, but why should the place
matter? If the company itself operates from England and Wales,
why should it not, wherever it occurred, be subject to being tried
in our courts?
Fiona Mactaggart: We need to be
able to ensure that we can successfully prosecute in practice,
and where a death occurs abroad there will be no control of the
crime scene, there will not be evidence about the cause of death,
and the health and safety standards which exist in the UK will
not necessarily be those applicable in the country of operation.
All of those things would mean that it was difficult in practice.
While we expect those companies to operate to the kind of standards
on which we make legislation here, we cannot export our health
and safety legislation via this mechanism into other countries.
It would be inappropriate and actually pretty impractical. While
in terms of individual manslaughter we do have a wider jurisdiction,
in practice it is not used frequently, and if we were to put that
provision into this legislation I think we would really raise
expectations about using corporate manslaughter legislation where
we have a good capacity to prosecute here. That is one of the
things I have been very keen on in making this Bill get into law,
we have good capacity to prosecute successfully in the UK. We
would create real expectations that where there are multinational
companies which operate lower levels of safety standards in other
countries that somehow we could export UK safety standards and
have successful prosecutions in relation to deaths in other countries,
and frankly I do not believe we would ever succeed in getting
prosecutions and it would be misleading if we were to seek to
do that.
Q595 Harry Cohen: Just a rhetorical
retort, I think: you would be content really if a UK company,
a British, English or Welsh company, caused the death abroad and
was tried abroad perhaps to a lesser standard?
Fiona Mactaggart: I would never
be content with any company which caused a death, let's start
from that point of view. But I do believe you need to create legislation
which can work in practice. As I said at the beginning, one of
the risks of this law is hooking on to it things we would like
in a better world to be able to be done. I would like in a better
world every country to have the health and safety standards which
we have as the norm here in the UK. I do not believe we can use
this piece of legislation to achieve that end and were we to try
to any degree to do that the legislation could crack under the
strain of it and it would not be a wise thing to do.
Q596 Harry Cohen: I know it is very
new but this is about the Scottish Expert Group who came out with
proposals for Scottish law which go a lot further than the proposals
in this draft Bill. Are you concerned at the possibility that
Scottish law could be very different from that in the rest of
the UK? Have you had a chance to look at their proposals? Do you
have any comments on that?
Fiona Mactaggart: I have looked
briefly at them and I think that it reflects a fundamental difference
in the way Scottish law operates and English and Welsh law operates.
I think we could have different standards in this as we do in
many other areas of law between England and Wales and Scotland.
Under the Scottish Expert Group report, they require prosecution
to show "an obvious risk of harm", and actually that
is the requirement in effect which caused the failure of the Herald
of Free Enterprise prosecution here. They do not have the
same concept of duty of care that we have used to be able to direct
the offence. I therefore think that you could not immediately
import the duty of care habit into Scottish law, but we have got
it here and it is actually a good framework upon which to put
this legislation. So I think the difference actually reflects
a difference in the development of law more generally.
Harry Cohen: That is helpful. Thank you.
Q597 Justine Greening: I have a supplementary
to some of the earlier discussion we have had. It seems to me
a lot of our debate and evidence we have had has been around the
question of corporate identity and then the senior manager test,
and I wonder if you could comment on this hypothesis, that you
can either have a Bill which tackles corporate manslaughter but
then has a corporate process style test of assessing whether that
has happened, or you can have a Bill which has an individual director
liability and then has a senior manager test at the individual
level associated with that, but what you cannot do is have a Bill
which has corporate manslaughter but then an individually-based
senior manager test as to whether negligence has occurred. Do
you think that is a fundamental flaw?
Fiona Mactaggart: I think this
is a corporate Bill. It requires a senior management failure and
I think it does not require you to identify in the framework of
the Bill an individual senior manager. I think that therefore
this is a Bill which is designed as a corporate offence. It does
not require you to find an individual senior manager in the way
the present legislation on gross negligence and manslaughter does,
but it is about failing at a senior level and in the way it is
constructed that is what we are seeking to do. I do not know whether
Mr Smith can assist me in how that works.
Mr Smith: Were you asking whether
you could have an individual offence based on corporate senior
management failure?
Q598 Justine Greening: The point
I was getting at was that the Minister talked about process, which
I think is correct, but it strikes me, as someone who has worked
in industry, that management process is one of a number of things—first
of all, it is setting policy, which you have referred to, but
it is also reviewing whether that policy has been carried out
arguably and then taking remedial steps to correct any issues.
That whole process can take place over a number of levels in the
organisation and therefore my question is whether you feel the
senior manager test is at that point stretched too far, because
by definition a senior manager may not be implementing the process
and the policy they have put in place.
Mr Smith: I think the point there
is that when you start looking at those levels of failure within
the company, at what level should corporate liability for manslaughter
kick in. So if what you have got is a system for managing health
and safety which is adequate at the senior level and, say, a review
process is appropriately delegated to a more junior level, if
the failure is solely at that more junior level, do you want to
make the company liable on a corporate basis for manslaughter?
I think what the senior manager test aims to do is to say, "What
we are interested in is a management level that is sufficiently
high to say `This is how the company is failing. This is a failing
that it is fair to say is of the company as a whole'" and
it was to exclude the exclusively lower end. I think as the Minister
has indicated, there may be a better way of capturing that. We
have heard points about this might bring back elements of identification,
personalise the prosecution, and those are valid points but they
were not the intention of the senior manager test. We are looking
for suggestions.
Q599 Justine Greening: Moving on
to sanctions, many respondents to our inquiry have expressed disappointment
that the draft Bill does not include more innovative sanctions.
At the moment you have the possibility of remedial orders and
also unlimited fines. Did the Government feel it did not have
enough time to look at more innovative sanctions or perhaps nine
years was not enough?
Fiona Mactaggart: There is capacity
for substantial fines in this area and that is quite important.
I actually rather welcome the fact that witnesses have suggested
more innovative sanctions. The Government will shortly be publishing
a discussion document on the penalty regime for corporations with
a view to producing a report and recommendations in 2006. Clearly
if we were to introduce alternative sanctions not of a kind which
currently exist, we would need to consult properly about them,
and the consultation to date has been about the structure of the
offence and actually that is the most important thing to create
consensus around. If we were to consider innovative penalties,
alternative penalties, and if this Committee were to bring forward
some suggestions, it seems to me absolutely essential that we
have a proper consultation process. I would be reluctant to delay
the Bill in order to do that, if I am going to be quite honest
with the Committee.
Q600 Justine Greening: When would
you, all other things being equal, plan to introduce the Bill?
Fiona Mactaggart: As soon as parliamentary
time allows. I think I have made it pretty clear that I am not
keen on further delay.
Chairman: Minister, thank you very much.
You have been robustly direct and clear with us. Thank you very
much indeed.
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