THE GOVERNMENT'S DRAFT BILL
26. The Government's draft Bill was finally published
on 23 March 2005. The proposals in the draft Bill differ from
the proposals in the Government's 2000 consultation document and
the Law Commission's recommendations in certain respects (including
changing the title of the offence from "corporate killing"
to "corporate manslaughter").
27. The proposals in the draft Bill use the Law Commission's
suggestion that the new offence should be based on failures in
the way an organisation's activities were managed or organised.
However, they add a further requirement which did not appear in
either the Law Commission proposals or the Government's previous
consultation document. This requirement is that management failings
are by an organisation's senior managers.
28. The Law Commission proposed that a new offence
be based on a failure to ensure the health and safety of employees
or members of the public. However, it did not define the relationship
between this and duties imposed by health and safety legislation
and duties imposed under the common law to take reasonable care
for the safety of others.[34]
29. The Government's draft Bill defines a relevant
duty of care as that owed under the law of negligence by an organisation:
- as employer or occupier of
land, or
- when supplying goods or services or when engaged
in other commercial activities (for example, in mining or fishing)
other than when carrying out exclusively public functions
- that is activities performed by the Government under the prerogative
or those that are a type of activity (whether carried out by a
private or public sector body) that requires a statutory or prerogative
basis. The Bill also exempts decisions involving matters of public
policy.
30. The draft Bill adopts the Law Commission's proposal
to define gross failure in terms of conduct that falls far below
what can reasonably be expected in the circumstances. However,
it also provides a range of factors for juries to consider when
assessing an organisation's culpability, including failure to
comply with health and safety legislation and guidance, and whether
or not its senior managers were aware, or ought to have been aware,
of the breach and whether they had any intention to profit from
the breach.
31. The draft Bill applies the new offence to corporations
but not to unincorporated bodies. It also removes Crown immunity
although it includes a number of exemptions. Under the Bill, a
parent company (as well as any subsidiary) would be liable to
prosecution where it owed a duty of care to the victim in respect
of any of the activities covered by the offence and a gross management
failure by its senior managers caused death.
32. The draft Bill does not propose to create new
sanctions for individuals. It also explicitly excludes the possibility
of convicting individuals for being a secondary party to the offence.[35]
33. Unlike the Law Commission's draft Bill, the Home
Office's proposed draft Bill does not include a separate provision
to deal with the issue of establishing that a management failure
can cause death even when an intervening act may appear to have
broken the chain of causation.[36]
34. The draft Bill proposes that the current responsibilities
of the police to investigate and the Crown Prosecution Service
to prosecute corporate manslaughter will not change.
35. Unlike the Government's 2000 consultation paper,
the draft Bill requires the consent of the Director of Public
Prosecutions before private proceedings in respect of the new
offence can be instituted.
36. A table comparing and contrasting the proposals
suggested by the Law Commission, the proposals in the Government's
2000 Consultation Paper and those in the draft Corporate Manslaughter
Bill can be found at Annex 1.
Delays and timing
37. Many witnesses expressed frustration that the
publication of the draft Bill had been far later than they expected.[37]
The GMB, for example, felt it had taken "an inexcusably long
time to emerge".[38]
Since we are now hearing media reports that the Cabinet has decided
to shelve the Corporate Manslaughter Bill,[39]
we feel it is important to remind the Government of its repeated
commitments over the last eight years to act on this issue.
38. In October 1997, a month after the Southall
rail crash, the then Home Secretary, the Rt Hon Jack Straw MP,
told the Labour party conference: "Many countries have laws
which provide for the conviction of company directors where it's
claimed that dreadful negligence by the company as a whole has
meant people have died". He added that there was a "strong
argument for considering in detail" the introduction of such
laws in the UK.[40]
39. The Home Office's consultation paper did not
appear until May 2000.
40. On 6 December 2000, the Government gave a loosely
worded commitment in the Queen's Speech promising that a bill
would be drafted that would "provide for safer travel on
the railways, in the air, at sea and on the roads, and will take
forward proposals for revitalising health and safety at work".[41]
41. In 2001 the Labour Party manifesto stated that
"law reform is necessary to make provisions against corporate
manslaughter".[42]
42. On 14 March 2002 the then Parliamentary Under-Secretary
of State for Transport, Local Government and the Regions, Dr Alan
Whitehead MP, confirmed that a bill on corporate killing would
be introduced when time permitted.[43]
In September 2002, the Government again raised hopes that the
draft Bill would be published shortly by distributing an impact
assessment questionnaire to the private sector, including industries
with a high injury rate over the last five years, with a deadline
of 1 November 2002 for responses.[44]
However, the Government failed to publish the draft Bill in the
parliamentary session 2002-03.
43. On 21 May 2003 the Home Office issued a press
release promising that "a timetable for legislation and further
details would be announced in the autumn", thus further postponing
any real action.[45]
44. The next twelve months saw another series of
commitments that draft legislation would soon be published. On
2 December 2003, the then Home Secretary, Rt Hon David Blunkett
MP, promised to publish a draft bill "very shortly".[46]
On 29 April 2004, the Minister for the Criminal Justice System
and Offender Management, Baroness Patricia Scotland QC, in a speech
at the Centre for Corporate Accountability's conference on corporate
killing, promised that a draft Bill would be published before
the end of the parliamentary session 2003-04.[47]
45. On 23 July 2004, in a report into the work of
the Health and Safety Commission and Executive, the Work and Pensions
Committee, expressed concern "at the length of time it is
taking the Government to resolve any outstanding issues concerning
reforms of the law on corporate killing" and recommended
that the Government publish its draft Bill by 1 December 2004.[48]
In its response to that report, the Government said it still intended
to publish a draft Bill that autumn.[49]
46. The Prime Minister reiterated this commitment
at a speech to the Trades Union Congress conference on 13 September
2004.[50] Shortly afterwards,
on 29 September 2004, the then Home Secretary, Rt Hon David Blunkett
MP, told the Labour Party conference that he was "confirming
this afternoon that we will publish this autumn the draft bill
on corporate killing that has been awaited for so long".[51]
47. Autumn, and parliamentary session 2003-04 came
and went. In the Queen's Speech on 23 November 2004, the Government
again promised that a draft bill would be published.
48. The draft Bill was finally published on 23 March
2005. The Queen's Speech following the General Election on 17
May 2005 restated the Government's intention to introduce an offence
of corporate manslaughter. In oral evidence, the Parliamentary
Under-Secretary of State at the Home Office, Fiona Mactaggart
MP, told us that the Government would introduce the actual Bill
" as soon as Parliamentary time allows".[52]
49. We are concerned at the length of time it
has taken the Government to introduce a draft Bill since it first
promised legislation on corporate manslaughter. We believe there
should be no further unnecessary delay. We urge the Government
to introduce the Bill, including our recommended changes, by the
end of the present parliamentary session, making provision for
carry-over if necessary.
2 Between 1992 and 2005, 3425 workers were killed.
Last year alone, 220 workers and 361 members of the public were
killed. Health and Safety Commission and National Statistics,
Health and safety statistics 2004/05, p 5-6 Back
3
After the 1987 Herald of Free Enterprise ferry disaster, in which
150 passengers and 38 crew lost their lives, Lord Justice Sheen
published a report which found that from "top to bottom the
body corporate was infected with the disease of sloppiness".
(Mr Justice Sheen, `1987 mv Herald of Free Enterprise'
(formal investigation). London: HMSO, Report of Court No 8074)
In an inquiry into the 1988 Piper Alpha fire, in which 167 workers
lost their lives, Lord Cullen found that there were "significant
flaws in Occidental's management of safety". (The Hon Lord
Cullen. `The Public Inquiry into the Piper Alfa Disaster' London:
HMSO, 1990) Back
4
Home Office, Corporate Manslaughter: The Government's Draft Bill
for Reform, Cm 6497, March 2005, p 8 Back
5
On 20 August 1989, a dredger crashed into the Marchioness pleasure
cruiser which was filled with people at a party. Over 50 people
lost their lives. Back
6
Volume III, Q 298 [Mrs Dallaglio] Back
7
R v HM Coroner for East Kent, ex p Spooner (1989) 88 CR App R
10, 16 per Bingham LJ Back
8
Home Office, Corporate Manslaughter: The Government's Draft Bill
for Reform, Cm 6497, March 2005, p 8-9 Back
9
Volume II, Ev 1, 3, 12, 16, 18, 30, 38, 43, 44, 54, 58, 59, 65,
69, 79, 85, 87, 110, 112, 132, 135, 148, 152, 192 (Health and
Safety Commission), 192 (Communication Workers" Union), 202,
205, 209 (Association of British Insurers), 209 (Institute of
Electrical Engineers), 211, 214, 226, 227, 228, 231, 232, 237,
238, 270, 275, 278, 282, 283, 296, 297, 298, 299, 301,305, 309,
316 and 317 Back
10
Volume II, Ev 16 Back
11
Volume II, Ev 1 Back
12
Volume II, Ev 150 and 277 Back
13
Volume II, Ev 69, 130, 150 and 303 Back
14
Volume II, Ev 222 Back
15
Volume II, Ev 33 Back
16
Volume III, Q 3 [Anne Jones] Back
17
Law Commission, Criminal Law: Involuntary Manslaughter Consultation
Paper No 135, 1994 Back
18
Law Commission, Legislating the Criminal code: Involuntary Manslaughter:
Item 11 of the Sixth Programme of Law Reform: Criminal Law: Report
No 237, HC (1995-96) 171 Back
19
Law Commission, HC (1995-96) 171, pp 127-131 Back
20
Law Commission, HC (1995-96) 171, pp 128-129 Back
21
Law Commission, HC (1995-96) 171, pp 129-130 Back
22
In September 1997, a high speed train from Swansea collided into
a freight train at Southall. Seven people were killed and over
150 injured. Back
23
Attorney-General's Reference 2/99,15 February 2000, Lord Justice
Rose Back
24
Corporate Homicide Bill [Bill 114 (1999/2000)] Back
25
Home Office, Reforming the Law on Involuntary Manslaughter: The
Government's Proposals, May 2000 Back
26
Home Office, May 2000, para 3.5.1 Back
27
Home Office, May 2000, para 3.4.9 Back
28
Home Office, May 2000, para 3.3.5 Back
29
Home Office, May 2000, para 3.4.6 Back
30
Home Office, May 2000, para 3.4.13 Back
31
Home Office, May 2000, para 3.2.8 Back
32
Home Office, May 2000, para 3.4.16 Back
33
Home Office, Corporate Manslaughter: A Summary of Responses to
the Home Office's Consultation in 2000 Back
34
Law Commission, Legislating the Criminal code: Involuntary Manslaughter:
Item 11 of the Sixth Programme of Law Reform: Criminal Law: Report
No 237, HC (1995-96) 171, Back
35
Home Office, Corporate Manslaughter: The Government's Draft Bill
for Reform, Cm 6497, March 2005, para 47 Back
36
Draft Corporate Manslaughter Bill, paras 50-51 Back
37
Volume II, Ev 6, 18, 54, 108, 110, 193, 215-216, 253, 306, and
316 Back
38
Volume II, Ev 59 Back
39
"The unions are also likely to be angered by a cabinet decision
last week to shelve a proposed corporate manslaughter bill."
The Sunday Times, 27 November 2005, p1 Back
40
The Financial Times, 3 October 1997 Back
41
HC Deb, 6 Dec 2000, col 4 Back
42
Labour Party, Ambitions for Britain: Labour's manifesto 2001,
p 32 Back
43
HC Deb, 14 March 2002, col 358WH Back
44
Home Office, Corporate Manslaughter: A Regulatory Impact Assessment
of the Government's Draft Bill, para 12 Back
45
"Government to tighten laws on corporate killing", Home
Office press release 142/2003, 21 May 2003 Back
46
HC Deb, 2 December 2003, col 385 Back
47
www.corporateaccountability.org Back
48
Work and Pensions Committee, Fourth Report of Session 2003-04,
The Work of the Health and Safety Commission and Executive, HC
456-I, para 53 Back
49
Work and Pensions Committee, Third Special Report of Session 2003-04,
Government Response to the Committee's Fourth Report into the
Work of the Health and Safety Commission and Executive, HC 1137,
p 4 Back
50
Full text of speech available at www.politics.guardian.co.uk . Back
51
Full text of speech available at www.labour.org.uk . Back
52
Volume III, Q 600 Back