Mr.
Sutcliffe: At this early stage, I should like to state the
Government’s position. The argument is not about who but how;
the Bill is about how an organisation has contributed to that corporate
manslaughter, not who has.
Ian
Stewart: That is helpful. I do not disagree with that. You
will see from our amendments and new clauses, Mr. Gale, that
the “who” follows what the Minister says. The problem is
that the Bill does not move on to the “who”, and that is
why we have tabled the
amendments. 9.15
am
Mr.
Grieve: We have come quickly to one of the hearts of the
issue. How can we fix corporate liability within organisations? How can
we move away from the current position on corporate and individual
manslaughter? That requires such a high test to be passed that
prosecution of corporations is extremely difficult unless one can
effectively show that the individual director of the relevant
corporation had a level of responsibility sufficient to fix him
personally with a manslaughter conviction.
We have to be careful because,
understandably, the public often wish to see people punished for
accidents that cause death. However, as the hon. Member for Eccles (Ian
Stewart) knows, one of the problems that the Government had at the
outset was whether it was possible to alter the test of corporate
manslaughter and still include individual liability. We may come back
to that later in our consideration of the Bill, but my broad view has
always been that we should be cautious about doing that and I think the
Government’s approach is correct.
If we accept the principle that
individuals should not be fixed with liability, even as directors of
corporations, so that they should not be sent to prison—this is
the key issue—it is, if I may use the expression, permissible to
start to look at how we can beef up the legislation to make it easier
to convict corporations. That is what the hon. Gentleman is talking
about. In tabling amendment No. 87, he has sought, along with his
colleagues, to try to focus the Committee’s mind on what we
allege should cause a person’s death and the extent of the
default that would be required of the organisation before it would be
fixed with criminal responsibility. To be frank, the hon.
Gentleman’s amendments, mine, which we can come on to, and the
Minister’s are all trying to tinker with the same
issue. I have
reservations about the way in which the Bill is drafted. The definition
of what constitutes a senior manager must mean that only failures at
senior management level that lead to death will be
sufficient
to fix criminal responsibility on the corporation. That is in stark
contrast to the Health and Safety at Work, etc. Act 1974, where section
2 provides a general duty on employers to look after the health and
safety of their employees at work by taking all reasonably practicable
steps. If an accident happens, the burden is on the employer to show
that he did everything reasonably practicable to prevent it. That
usually requires an exercise on the part of the prosecution, or perhaps
the corporation’s or employer’s lawyers, of running
through a list saying what was done from top to bottom to ensure safety
on the work floor. What frequently happens, in my
experience, is not that the senior manager is directly responsible for
the accident but that the chain from top to bottom has a number of
chinks in it that mean that the safety culture does not percolate from
the director to the floor, such that one certainly cannot say that the
poor senior director is directly responsible. I say poor because I have
some sympathy with such senior directors, although, of course, one
might sometimes find that they are responsible, and I have come across
some unpleasant cases in my time that have made my hair stand on end.
But generally there are a series of contributory causes, as is so often
the case in accidents.
We must aim to beef
up the safety culture. I think that the expression that was used in the
Health and Safety Executive was, “You have to walk the
talk.”
Ian
Stewart: The hon. Gentleman has laid out the lines of
responsibility clearly. However, does he accept that the test for
corporate responsibility might not be proven but as things stand an
individual could still have responsibility for manslaughter? Is it not
dangerous for us to remove one and have the
other?
Mr.
Grieve: As matters stand, the Bill does not interfere with
the law of manslaughter. If an individual kills another person by gross
negligence, he can still be indicted for manslaughter. It is difficult
to pick an example. Let us suppose that the director of a building
company goes on to a site and, seeing that a wall is manifestly in an
unstable and dangerous condition, tells one of his 17-year-old
apprentices to take a sledgehammer and smash out some of the bottom
bricks to make a hole. If the wall were to collapse on the
apprentice’s head, although we would need to examine all the
facts it seems to me that that director would be liable to prosecution
for manslaughter. Nothing in the Bill will make any difference to that,
which does not trouble me.
The traditional test of
manslaughter is the same for a corporation as for an individual, but it
is harder to get at a corporation as it must be shown that the
directing minds are guilty of the offence. I am in favour of moving
away from that principle, but I wish to fly a flag that I will be
unhappy if the hon. Gentleman says at a later stage of our
deliberations that he wishes personal responsibility to be fixed on
directors on the same basis as those directly responsible and the
directors therefore sent to prison. If we are to focus merely on
corporations, as I believe we should, the hon. Gentleman’s
amendment makes a great deal of sense. I am not sure whether mine does,
but it would take us in the same direction. I will listen to what the
Minister has
to say, but he will be pleased to hear that I believe his amendment
might make even more sense than mine or that of the hon.
Gentleman. Mr.
Sutcliffe: That is a good
start.
Mr.
Grieve: It is a good start. I am in favour of what we are
trying to do. If I understand the Government amendment correctly, they
are attempting to move away from the direct fixing of a senior
management decision and towards a senior management failure being a
substantial cause of the accident. That goes a long way towards
answering my point about the chain of
causation. We must
face the fact that accidents happen for a variety of reasons, and often
because the person killed does something stupid. Part of the safety
culture that we must create is protecting people from their own
mistakes. I shall give the hon. Member for Eccles an example of a
dreadful case that I once worked on. Two employees were sent to the top
of a dome in an oil refinery. There was a plug in the dome and they
were told to remove the tangs securing it to the sides. They stood on
the plug while they removed the tangs, thinking that the plug was
inserted so that it could not fall through, but the moment the last
tang was removed, one of them fell 100 ft to his death. The company was
prosecuted under the 1974 Act and pleaded guilty. There were
subcontractors on site and repair work was taking place.
The case might not have been
suitable for a corporate manslaughter prosecution, either under the
Minister’s proposals or the previous provisions, butthe
truth is that there was a failure to acquaint the employees with the
risk and there was an assumption that they would understand it. That
failure ran from the top to the bottom of the organisation. The
decisions taken on site had nothing to do with senior management, but
it could be argued that to establish a safety culture, senior
management should have examined the way in which their junior
management were managing employees. I emphasise again thatthe
case might not be suitable for a corporate manslaughter prosecution,
but such examples are important. If the Minister is trying to tweak the
law, as I believe he is, to enable a jury better to examine an
organisation from top to bottom, that is a sensible approach when
dealing with the responsibilities of a
corporation.
Mr.
Davey: We have a veritable menu of alternatives before us.
Concerns about the original phrasing of the senior management test were
expressed on Second Reading and in the briefings that we have received.
The first point of concern is that the problem experienced under the
previous legislation of identifying an individual—working out
which senior managers were involved—would remain. I am not yet
sure whether the Bill deals with that.
There is also a problem of
perverse incentive. Senior managers might be advised by a good
corporate lawyer it would be reasonable to move responsibility for all
health and safety issues down to the lowest point, thereby avoiding any
potential future prosecution for corporate manslaughter. That would be
a retrograde step both for health and safety and for the desire to
amend current problems in the law.
Concern was
also expressed that the Bill would not deal with the small-large issue.
Under existing law, small companies tend to be caught and larger
companies tend to avoid prosecution.
Those are the
type of tests we need to look at when considering the options before
us, including the Government amendment. I am pleased that the
Government have moved their position and like the hon. Member for
Beaconsfield, I think they are moving in the right direction, but we
will certainly probe the Minister, particularly after he has spoken to
the Government
amendment. The
amendment tabled by the hon. Member for Eccles and his hon. Friends has
some attractions. It seems a sensible idea to introduce the notions,
well known to many corporate bodies, of reasonable precautions and due
diligence. Several of those who responded to the consultation thought
that was the way to go—indeed, the British Retail Consortium
thought that introducing a due diligence test was sensible because it
would establish that senior management, when organising a company,
ought to demonstrate due diligence in more than just financial matters.
A due diligence test would be understood by senior managers. It would
not necessarily require them to be actively involved in an incident or
the causation to be absolutely clear; instead, it would reflect an idea
of corporate culture. That has some
merit. My only concern
about amendment No. 87 centres on the ultimate
sentence: “all due
diligence been exercised by all those at a senior manager level within
the organisation”. That
seems a very hard test to pass because all senior managers would have
to be identified in order to check whether or not they had taken
reasonable precautions or demonstrated due diligence. That may be
something we can come back to—I am sure it is not a hard and
fast aspect of the hon. Gentleman’s intentions. It will be
interesting to see whether the Minister has any guidance give us on
that because it does not seem to take us in the direction that the hon.
Member for Eccles wishes to go, despite the other merits of his
amendment. By chance,
my hon. Friend and I tabled the same amendment as the hon. Member for
Beaconsfield did—perhaps we read the same brief that was sent by
e-mail. However, my hon. Friend and I intended to focus more on
management. There is a balance to be struck. I cannot speak with the
same legal experience as the hon. Gentleman has, but it seems to me
that on the one hand we want to ensure that the whole corporation acts
in the best interests of health and safety and takes these matters
seriously, and that that should be part of the culture; but on the
other hand, we should not expect a corporation to be guilty of
corporate manslaughter if a very junior person makes a mistake. Such a
mistake needs to be dealt with in isolation so it does not have an
effect on the reputation of the whole company. It is a question of
balance and how we can achieve
that. 9.30
am I
argue that amendments Nos. 34 and 35 get the balance right, because the
natural, common-sense understanding of the term
“management” would exclude the idea that a very junior
operative could create a
situation in which the whole corporation was deemed to be guilty of the
offence. I believe that, if a case was being prosecuted in a court of
law, reasonable people would understand what was meant by management
failure and could make those decisions. By restricting the provision to
senior managers, we still have the problem identified with the
Government’s original wording. I want to deal with the
Government amendments when the Minister has spoken to them, if I catch
your eye, Mr.
Gale. Mr.
Jim McGovern (Dundee, West) (Lab): Does the hon. Gentleman
share my concern that a company could make itself almost corporate
manslaughter-proof by devolving all health and safety responsibilities
to the most junior management
level?
Mr.
Davey: I am concerned that the original phraseology would
have had that effect—indeed, I am sure that it would have done.
The Select Committees that considered the draft Bill found from some of
the evidence that they took that corporations were doing precisely
that, in anticipation of the
legislation.
Mr.
Grieve: I am not sure that I entirely agree with the hon.
Gentleman on that point, because even under the original wording, if
senior management devolved all their responsibilities downwards, that
would be the failure in itself. It seems to me that the new wording,
wherever it comes from, but perhaps particularly if comes from the
Government, will knock on the head even a suggestion of being able to
mount that
defence.
Mr.
Davey: I disagree. I think that the original wording did
have that problem, and the evidence presented to the Select Committees
shows that that was the case. Corporations were acting in anticipation
of the legislation. It would have been a reasonable defence to say,
“Well one size does not fit all when you have a number of
factories throughout the country. It is totally reasonable that an
individual in each of the company’s 15 or 20 factories should
take responsibility for health and safety at that site. It has nothing
to do with the directors.” That could have been a reasonable
defence, so there would have been the perverse incentive that the hon.
Member for Eccles and many others were worried about. The hon.
Gentleman is right to say that the amendments before us begin to
address that
weakness. My point is
that amendments Nos. 34 and 35, which are less restrictive in the
definition of management by not attaching the word
“senior” to it, are the sort of provision to which an
ordinary jury would react seriously and properly. I am concerned that
if we retain the qualification of “senior”, we will not
achieve the effects that we are trying to achieve. Such a qualification
will create greater complexity. The process of identifying exactly who
was a senior manager will be part of the debate in the court,
lengthening the proceedings and making it much more difficult to secure
the prosecutions that we know ought to have happened in the past but
have not happened because of previous legal complexities.
With those introductory remarks,
I hope that the Minister can try to persuade us that the solution he
has come up with is better than the solutions the rest of us have come
up
with. Tony
Lloyd (Manchester, Central) (Lab): Despite never having
served in one of your Committees before, Mr. Gale, I, too,
pay tribute to your
chairmanship. The
debate has been interesting in that there is a degree of consensus on
what we are trying to achieve with the clause. We can and we certainly
will debate later whether we should separate corporate responsibility
from individual responsibility. There is a major issue about whether,
when death is caused in the workplace or similar, we ought to recognise
that both the corporate body and individuals should be liable. However,
there is consensus on our aim, which is to remedy a gap in the law
which allowed some headline cases and, as important, many cases that
did not achieve public notice of failure to prosecute corporations for
manslaughter. The
debate has centred on how we approach the matter. One of the most
notable cases of failure to prosecute related to the sinking of the
Herald of Free Enterprise. The controlling minds of the company simply
failed in their duty to provide the proper health and safety culture to
which the hon. Member for Beaconsfield referred. It is astonishing that
no prosecution was possible under existing law. We must ensure that
what we introduce is sufficient to ensure that such cases will lead to
corporate prosecution. I believe that there should have been individual
prosecution in that case because there was clear individual failure at
senior level in that company, but we must ensure that the gap is closed
so that corporate prosecution is
possible. The concept
of due diligence is attractive to me, in part because it is already
well defined and in part because the courts recognise failure to
operate with due diligence. That is well established in case law. The
courts understand it and the public understand it. It is something on
which common sense and judicial practice come together. That is
important in efforts to create a health and safety culture, which are
not helped if laws are difficult for management and those who work in
organisations to interpret, even if the courts properly understand what
the law says. It will be best if the legislation is never used because
it has driven forward the health and safety culture and changed the way
in which organisations operate. I urge the Minister to accept the
concept of due diligence because that is
important. I want to
press the Minister on the debate that the hon. Members for Kingston and
Surbiton and for Beaconsfield have opened up a little, on the
application of the Government amendments. There is concern about the
emphasis on the role of senior management and particularly that of
senior managers when making decisions on how the whole or a substantial
part of a company’s activities are to be managed. That goes to
the nub of how the legislation will operate in practice. The concern is
that because of the definition of“a substantial
part”, in large organisations with a complex structure the
failure in a relatively small part of the organisation could allow a
defence at the top level—the controlling mind level. Senior
management
could simply say, “We are the senior managers in control of the
whole or a substantial part of the organisation, but we are clearly not
responsible for an issue that should and could adequately have been
dealt within a lower part of the organisation.” It would not be
possible to prosecute the smaller part of the organisation because it
does not have corporate existence and those responsible at that level
would not meet the senior management test. The hon. Member for
Beaconsfield said that it would not be possible to delegate health and
safety on that basis, so failure in a division of the corporation would
still be the responsibility of the most senior management because of
the due diligence test. Even if that is the case, I would still prefer
to see the phrase due diligence in the Bill, because it makes the
relationship between senior management and those who operate parts of
the organisation absolutely clear. The concern is that, in their own
defence, senior management could say, “Yes, of course we are the
controlling minds of the company. We are the ones who control the whole
or some central parts of the organisation’s decision-making, but
this took place at a level below that for which we could be held
responsible.”
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