 House of Commons |
Session 2005 - 06 Publications on the internet Standing Committee Debates Corporate Manslaughter and Corporate Homicide Bill |
Corporate Manslaughter and Corporate Homicide Bill |
The Committee consisted of the following Members:Emily
Commander, Sarah Hartwell-Naguib, Committee
Clerks †
attended the Committee Standing Committee BThursday 19 October 2006(Afternoon)[Mr. Joe Benton in the Chair]Corporate Manslaughter and Corporate Homicide BillClause 1The
offence Amendment
proposed [this day]: No. 107, in
page 1, line 7, at beginning
insert ‘in England and
Wales and Northern Ireland,’.—[Jo
Swinson.] 2
pm Question
again proposed, That the amendment be
made.
The
Chairman: I remind the Committee that
with this we are discussing amendment No. 108, in
page 1, line 8, at end
insert— ‘(c) In Scotland
amounts to a reckless disregard for the safety of the
deceased. (1A) A manager is
reckless where as regards a circumstance or as to a possible result of
an act he is or ought to have been aware of an obvious and serious risk
that the circumstances or that the result will follow but nonetheless
acts where no reasonable person would do
so.’
I should like
to declare on the record that I am a non-practising member of the Law
Society of Scotland. The amendments that we are discussing, tabled by
Liberal Democrat Members, were suggested by the society. As was
mentioned by the hon. Member for East Dunbartonshire (Jo Swinson), the
amendments are relevant in the context of Scots law where the crime of
corporate culpable homicide, a common law offence, is very different
and distinct from the equivalent offence of manslaughter under English
common
law. The
Bill as originally proposed applied only to England and Wales and
followed upon the report of the Law Commission. The laudable aim was to
ensure equivalence under the law; regardless of the employer’s
legal identity—whether they were an individual, partnership,
corporation, association or Government Department—the
perpetrator of the crime would be treated in an equivalent manner. That
is what the Bill aims to achieve for England and Wales.
Unfortunately,
the major problem with the law of culpable homicide in Scotland is that
there is no clear definition of what it applies to. Over the years, the
Scottish courts’ interpretation of it has changed considerably.
In the leading case of Paton v. Her Majesty’s Advocate in
1936, Lord Justice Clerk Hope
stated: “It is
not necessary, in order to substantiate a charge of culpable homicide,
either that there should be any intention to do to another the injury
which has occurred, or that the party
should even know that another is actually exposed to risk, as in the
case of a carter who neglects his duty and runs down a child, though he
may not know that any child actually is near him. The general rule is
that every person, placed in a situation in which his acts may affect
the safety of others, must take all precautions to guard against the
risk to them arising from what he is
doing.” Many lay people
would take that to be a breach of a duty of care. Yet when we fast
forward 60 years to the Transco case, the trial for culpable homicide
referred to by the hon. Lady, we see that Lord Osborne referred to the
1956 case of Quinn v. Cunningham, which
stated: “The
essence of culpable homicide is the degree of culpa which has in
fact resulted in the death. Mere culpa plus a death resulting
from it does not constitute culpable
homicide.” What was
required was, to use Lord Osborne’s phrase,
“criminal recklessness in the
sense of a total indifference to and disregard for the safety of the
public.” I take that to
be a much higher level of test, which is currently applied by the
Scottish courts in respect of the common law
offence. The
Law Society’s proposals aim to establish a more objective test
of recklessness; it tries to define the concept in respect of
corporations and Government bodies. However, I still think that if we
used that interpretation, in the Scottish courts a specific office
holder who had committed an offence, rather than systemic failures of
senior management, would have to be identified. Therefore, I do not
support the amendments because they would impose a much higher
test.
However, the
amendments raise an important point. If the Bill is enacted and
applicable to Scotland, we will have created a further non-balance in
respect of the crime as it relates to deaths at work or in the place of
work. Individuals—and, as presently drafted, partnerships,
friendly associations and other bodies—are not covered by the
Bill. They would still be covered by the common law definition of
culpable homicide, but that imposes a much more severe test as
currently interpreted by the courts.
As I said on
Second Reading, I hope that the Government will use the opportunity to
discuss with their colleagues in the Scottish Executive whether to
review the law of culpable homicide as it applies to the common law
offence, because it creates an inequitable position in Scots law that
will be unsatisfactory in the long term. It means that individuals or
partnerships could be subject to a much higher risk than that which
applies to corporations. It is important that the Executives on both
sides of the border should discuss the way forward.
I appreciate that the Scottish
Parliament’s business is full when it comes to law reform. In
fact, two justice committees are sitting at present and I know from
speaking to colleagues how busy they are. They also face elections next
May. However, the question of whether the law of culpable homicide
needs to be reformed should be seriously considered in Scotland. The
Scottish Law Commission has discussed proposals for codifying the
common law on serious offences, including culpable homicide, in order
to clarify the law. I
accept the Government’s argument about the level of test. It is
the right level of test to apply; otherwise, many corporations would
never be charged correctly or properly, as happened in the Transco
case. It is
important, however, that the public should have the comfort of knowing
that that area of law is equitable and equivalent regardless of who
perpetrates that sort of crime—and it is a crime.
I do not
support the amendments. I believe that they would impose a more severe
test than the Government intend. However, I hope that my hon. Friend
the Minister will give some indication this afternoon of the dialogue
that he has had with the Scottish Executive, and that he can tell us
something about the views of the Scottish professional legal bodies,
including the Scottish Law Commission, the Law Society of Scotland and
the Society of Solicitor
Advocates.
The
Parliamentary Under-Secretary of State for the Home Department
(Mr. Gerry Sutcliffe): Good afternoon,
Mr. Benton. I welcome you to the Committee’s
deliberations. I am
grateful to the hon. Member for East Dunbartonshire and my hon. Friend
the Member for Glasgow, North (Ann McKechin) for expressing themselves
as they did. I want to set the scene. I know that the hon. Member for
East Dunbartonshire didso this morning, but I shall remind the
Committee about the situation in Scotland.
The amendments address the
question of the application of the new offence to Scotland. It is
important to understand why the Bill extends to Scotland. Similar
problems arise in Scottish law when prosecuting a company for culpable
homicide as arise under English law in corporate manslaughter cases. In
the Transco case, the Court of Appeal confirmed that in order for a
company to be found guilty under the common law offence of culpable
homicide in Scotland, an individual or group of individuals at a
sufficiently senior level of the organisation to represent its
directing mind must be shown to have been criminally responsible for
the death. The guilty mind can then be attributed to the company; that
is known as the identification principle.
In English law, the Court of
Appeal expressly stated that the law of Scotland does not recognise the
principle of aggregation, which would allow the conduct and state of
mind of a number of people over a period of time to be considered
collectively. Scottish Justice Minister Cathie Jamieson made it clear
at the end of 2004 that, if legislation was required to reform that
area of law, proposals would be made. As the hon. Lady said, an expert
group was set up in April 2005 to consider changes to the law. It
reported in November 2005. The legislative competence of the
group’s proposals were considered in detail on both sides of the
border. It was concluded that although they involve a change to the
criminal law, which is a devolved matter, the purpose and effect of the
detailed proposals are too closely linked to the reserved matters of
health and safety, and business association to be within the Scottish
Parliament’s competence. Furthermore, the view taken both by the
Scottish Executive and in Whitehall is that the Bill is reserved for
similar reasons. The starting point is therefore the fact that the new
offence is reserved. Matters are reserved where a consistent approach
is needed nationally.
As my hon.
Friend said, it is important that the new offence fits properly into
the structure of Scots criminal law. We believe that to be the case,
and I have been willing to listen to points that colleagues have raised
in that respect. As my hon. Friend said, however, the amendment goes
beyond that and proposes a fundamentally different approach to the new
offence between Scotland and the rest of the UK. We are reluctant to go
down that route. It would mean that companies would be operating under
different regimes north and south of the border. Furthermore, we are
not satisfied that the proposed approach is the correct one for the
future of the offence in any case.
As I have said, one of the
chief difficulties with the law at present is the identification
principle—that is, the need to identify a directing mind of an
organisation that is personally guilty of causing the death. The
purpose of the Bill is to establish a new basis for assessing corporate
liability, which, as I said this morning, moves away from the question
of who manages a company to how the activity was managed. Indeed, one
of the trenchant criticisms of the senior manager approach in the draft
Bill was that it did not move the law on sufficiently in that respect
and retained the identification principle.
There was some misunderstanding
of the position, but I have responded to that by introducing amendments
to the test for liability, which we discussed this morning. However,
there seems to be little room for misunderstanding with the amendments
under discussion. They deliberately focus on the conduct and omissions
of senior managers as individuals, retaining the element of
identification that we are seeking to move away from. The hon. Lady
said that the expert group in Scotland had proposed an offence based on
recklessness, but those proposals were constructed differently and did
not propose establishing that senior managers had been
reckless.
I also note
MSP colleague Karen Gillon’s recent proposal for a private
Member’s Bill in the Scottish Parliament, which suggested an
offence based on recklessness. That was not along the lines proposed by
the expert group, but has similarities to the group of amendments that
we are considering. However, the consultation also commented that even
where aggregation was possible, difficult and insoluble problems might
arise, where different office holders acted in different ways, or knew
or believed different things. At the same time, the consultation
expressly included an offence based on a gross negligence test, along
the lines proposed in the Bill. As Gillon indicated, the concept of
gross negligence formed part of the common law on culpable homicide in
Scotland, at least until the mid-20th century.
We are
satisfied that the new offence proposed in the Bill should apply in the
same terms throughout the UK, that an offence based on the recklessness
of senior managers does not address the problems that we are seeking to
reform, and that relying on the concept of gross negligence is apt for
Scotland. I will take up the point that my hon. Friend raised about
discussions with the Scottish Parliament. I have discussed the issue
with Ministers at the Scotland Office in Whitehall, and will certainly
be discussing further with colleagues the application of the issues
that she has raised. For those reasons, I would ask that the amendment
be withdrawn.
Jo
Swinson (East Dunbartonshire) (LD): I, too, welcome you to
the Committee, Mr. Benton. I appreciate the contribution
from the hon. Member for Glasgow, North, who has the advantage, unlike
me—or, I am afraid, the Minister—of having a background
as a solicitor. In
moving the amendment I sought a specifically Scottish solution to the
issue of the duty of care not being a concept in Scottish civil law. I
take on board the Minister’s reassurances, particularly his
addressing the concept of culpable homicide in common law, which is a
point that needs addressing. I beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
2.15
pm Mr.
Edward Davey (Kingston and Surbiton) (LD): I beg to move
amendment No. 97, in page 1, line 7, leave
out
‘relevant’.
|
| |
| ©Parliamentary copyright 2006 | Prepared 20 October 2006 |