Jeremy
Wright: I rise to deal with the hon. Gentleman’s
point on whether this type of provision is available elsewhere. It is.
Under the criminal law, courts are invariably invited to consider a
compensation order alongside other penalties, though on the facts of
individual cases that is rarely relevant because defendants usually
cannot make compensation payments. That is not the case here and I
agree with what the hon. Gentleman said about the necessity of
compensation: it would be appropriate in the case of corporate
institutions.
Tony
Lloyd: It seems to me that there is a widespread
recognition that that could be a sensible way forward. My hon. Friend
the Member for Eccles invited the hon. Member for Hornchurch to
consider probation orders. Those orders are a little different from
admonition orders—I understand from my hon. Friend the Member
for Glasgow, North that admonition orders would impact on the corporate
body specifically. As an extension, I wondered whether corporate
tagging and such like would be possible, but maybe that is a flight of
fancy. Admonition orders could have a real impact on corporate
behaviour, in the sense that if a large national company had been the
subject of corporate manslaughter legislation, that would be well
known. We saw that with Transco, which still holds the record for a
fine on a corporate body in this country for breach of health and
safety laws. For large companies it would be obvious that they had
behaved in such a way, and investors and others wanting to deal with
the company would know it. For medium-sized and small companies, having
something on the record could well serve as a disincentive, such that
it could change corporate
behaviour. Mr.
Jim McGovern (Dundee, West) (Lab): Last week, I quickly
realised that I was in a room full of lawyers, so if I get things wrong
I am sure that I will be corrected. My understanding of an admonition
is that it is a legal term for a slap on the wrist. Does my hon. Friend
think that that is appropriate in the case of loss of
life?
Tony
Lloyd: I am not sure whether, as my hon. Friend the Member
for Eccles muttered, my hon. Friend the Member for Dundee, West
(Mr. McGovern) said “lawyers” or
“liars.” That would be a matter for you to determine,
Mr. Gale, and I shall not pursue it any further. My hon.
Friend’s point is important, but I can think of circumstances in
which different levels of penalty may be appropriate. I make no bones
about my belief that in the most serious cases of corporate
manslaughter individuals should bear responsibility, and if
responsibility is clear and proven, should pay the same sort of penalty
as would be expected in the case of serious motoring offences, such as
reckless driving. Individual directors or employees would end up in
prison, and that would be absolutely right—it would recognise
the serious nature of recklessly causing death. An admonition order, or
other penalties, may be appropriate as something that would stay on the
record and would indicate that a company had behaved in a certain way,
so that people dealing with the company in future would be aware that
the company was a reckless one. Long after the headlines had
disappeared from the local newspapers, that would still be there on the
record.
11.15
am
Ian
Stewart: I was pleased to hear my hon. Friend’s
explanation and expansion of what we are attempting to do in Committee.
We are addressing a range of sanctions to fit the key issue which, I am
sure my hon. Friend the Member for Manchester, Central (Tony Lloyd)
will agree, is for families to see justice done. The hon. Member for
Hornchurch has mentioned that on several occasions. I therefore make no
apology for pressing the issue to the boundaries, so that we can
examine the range of available sanctions, including the potential for
identifying a named person who represents the corporate body. It is
important that we do not leave out what could be considered by families
to be
justice.
Tony
Lloyd: My hon. Friend knows well that I sympathise with
the case that he is putting forward. I therefore refer to the concept
of probation orders. They are similar to admonition orders. Used in the
Canadian context, they impact on individual directors. In some
circumstances, I would regard a probation order as being a ridiculously
trivial consequence for a director, but there are times when it would
plug a gap in the existing levels and range of penalties. I suggest
admonition orders for corporate bodies, and probation orders for
individuals and named directors. A director against whom a probation
order was on the record would find it difficult to move from one
company to another. Few companies would want a person with a probation
record to chair their
board.
Ann
McKechin: Does my hon. Friend agree that a probation order
would be appropriate when, for example, a company had little money with
which to pay a fine, as a result of which the fine imposed by a court
would be severely limited? Yet the court would want to ensure that the
future practices of the company, particularly if it became more
profitable, still did not escape an appropriate form of
punishment.
Tony
Lloyd: My hon. Friend is right. In specific circumstances,
individual servants of the company could be guilty of manslaughter even
under existing law, whether or not we are discussing corporate
manslaughter and individual liability. However, it could still be
considered that the company and individual directors had general
responsibility—not enough for individual liability against those
particular people, but enough to carry the test of corporate
manslaughter. As my hon. Friend said, in some circumstances it would be
appropriate for admonition and probation to be kept on the record. For
the company to expunge the admonition or probation, it would be
important for it to demonstrate that it had put its house properly in
order and had changed its ways and corporate culture. That would serve
as part of the armoury in driving through the change in health and
safety culture that we want to achieve under the
Bill. I do not
seriously expect my hon. Friend the Minister to accept the amendments
today. However, I hope that he will not pour scorn on the concept and
accept that there is merit in further examination of such proposals. As
the hon. Member for Rugby and Kenilworth said, perhaps we can consider
the non-used compensation powers under existing criminal law. He
educates me. As I confessed last week, I come here for my legal
education. Courts could decide whether to use that concept, admonition
or probation in individual cases, particularly as a way in which to
change culture and behaviour. Furthermore, an important part of what we
want to achieve is a system that gives comfort to the bereaved and
ensures them that they are being taken seriously by our judicial
process.
James
Duddridge: This has been a useful discussion. I am sure
that the Minister will want to reflect on what has been said and bring
forward Government amendments. I was particularly impressed with the
elegant nature of amendment No. 31—with its simplicity but
wide-ranging effect—from the hon. Member for Glasgow, North. The
hon. Member for Manchester, Central said that it might be withdrawn or
that the Minister might not accept it if it were pressed to a Division.
If it were pressed, I would be minded to vote for it on the basis that
it would be a clear indication from this Committee that it was serious
about asking the Minister to fill in the detail.
If the Minister were minded to
consider amendment No.100, I would suggest a few amendments. It refers
to “one of the following
penalties.” There is
potential merit in referring to “one or more” of those
penalties—that is to say, a fine in combination with another
element. I was also
concerned about corporate community service orders. I think I
understand what that means—in terms of restorative
justice—and am supportive of it. However, if the Minister were
to add more detail, we would have a closer definition of exactly what
that entails. In
relation to paragraph (c), there might be benefit in putting more
details under the potential sanctions. One of the greatest sanctions on
a corporate is to damage its brand, perhaps more so than a financial
penalty. For example, if a soft drinks company were prosecuted and
forced, for one year, to print on every soft drink can that was produced
that it had been convicted, that would be both a strong sanction and a
preventive measure. I
did not fully understand why the hon. Memberfor Glasgow, North
had not combined amendments Nos. 31 and 32. However, that might be my
inexperience of this place or an indication that the hon. Lady was
hoping that if both amendments were not passed, amendment No. 31 might
be.
Mr.
Sutcliffe: I add my congratulations to hon. Members for
their contribution to what are, as has been said, probing amendments
that test the Government’s view on sanctions. I am happy to
consider many of the points that hon. Members have made this morning in
the spirit of what we are trying to achieve, namely to change the
corporate culture. As
this group of amendments suggests, it is vital that the new offences of
corporate manslaughter and corporate homicide are accompanied by
appropriate sanctions. We cannot imprison a company, so it is vital
that the penalties for the new offence properly punish the convicted
organisation and sufficiently deter them from future
offending. It is even
more important, as my hon. Friend the Member for Eccles says, that the
families involved see that justice is being done. My hon. Friends the
Members for Manchester, Central and for Eccles are consistent in their
views about the issues affecting individuals and I am sure that we will
return to those as we go through the other
clauses. As these
amendments make clear, there is some concern that fines are not enough.
However, the courts are showing increasing willingness to hand down
severe penalties in serious cases of health and safety breaches. Last
year saw the highest ever fines against a railway company in relation
to Hatfield when Network Rail was fined £3.5 million and Balfour
Beatty, in another area of the industry, was fined £7.5 million,
and, as has been said, Transco was fined £15 million for health
and safety breaches.
Fines for the new offence will
vary enormously according to the circumstances—they will need to
reflect the seriousness of the incident and the size of the company
concerned. However, we expect the courts to take the new offence very
seriously. The hon. Member for Kingston and Surbiton is right that the
Sentencing Guidelines Council will be issuing guidelines for the new
offence. However, the
fine is not the only sanction that will arise out of the new offence;
it will be coupled with the censure of a very serious criminal
conviction. The Bill’s purpose is to make it easier to prosecute
complex organisations when their gross negligence causes someone to
die, so the seriousness of the conviction will mirror the gravity of
the offence, which has not been the case for complex organisations
prosecuted under current law. That is the driving force behind the
Bill, and it is why we differ from the Opposition on amending the 1974
Act. Nevertheless, we
recognise the concern that financial penalties alone might not always
be enough to change undesirable business behaviour. For that reason,
the Government have commissioned a comprehensive
review, led by Professor Richard Macrory, of existing penalty systems
for corporate offences. The review team is consulting on a range of
proposals for more innovative penalties for regulatory offences. It is
also considering the use of a wider range of sanctions in the criminal
courts. Amendment No.
100 proposes corporate community service orders, which I was interested
to hear about. A similar approach, in the form of corporate
rehabilitation orders, is under consideration in the Macrory review.
The sort of order that Professor Macrory has been considering would
enable the court to require an organisation to undertake specific
activities. A company might be obliged to provide extra personnel
training in health and safety matters or to undertake some reparative
activity within the community. In the consultation paper he published
in May, he suggested that compliance with the order would be monitored
and the company would be returned to court if it failed to observe the
terms of the order.
The alternative sanctions under
review offer some interesting avenues for the future, and the
Government are looking forward to the publication of Professor
Macrory’s findings this autumn, but further work and
consultation will be needed on the practicalities of any
recommendations made by the review. It is not simply a case of granting
courts new powers. For example, detailed work would be needed to give
courts frameworks for setting rehabilitation orders and to decide how
compliance would be monitored. Clearly, the issues go wider than
corporate manslaughter. The Government will consider sentencing for
corporate offences in the light of the Macrory review
findings.
Jeremy
Wright: The Minister has rightly identified the need to
make a full assessment of how the orders would be enforced, but would
he also say that it is important to look at the cost implications of
monitoring and enforcing the orders? In criminal law, we have seen the
extra pressure placed on the probation service when extra orders are
introduced. It would be unfortunate if such cost implications were not
considered in this context
also.
Mr.
Sutcliffe: I am thankful for the hon. Gentleman’s
intervention. That is the very nature of what needs to be considered.
It will come as no surprise to him that the Home Secretary is keen to
ensure that we consider the cost aspects of implementation. It is a
fair point across the criminal justice system. He makes it well, and I
thank him for
it.
Mr.
Davey: Would not one solution be to ensure that any fine
that accompanied one of the new, innovative orders was sufficient to
meet the Government’s monitoring
costs?
Mr.
Sutcliffe: That is one possible solution. Clearly, we
would have to consider the implications. I think that that is why the
hon. Member for Rugby and Kenilworth said that we need to look right
across the piece to ensure that we are not creating another problem by
solving one problem in a particular way.
The other proposal put forward
in amendmentNo. 100—that the Bill should provide for
sanctions to be identified and introduced by affirmative
order—is an interesting one. However, I do not think that it is
wise to delegate such a wide power in that way. As I have said, the
Government will consider carefully how to take forward the proposals
made in the Macrory review. Any changes to sanctions for corporate
manslaughter will be made in that wider context. It is not necessary to
provide for it in the Bill.
I turn to admonitions. As my
hon. Friend the Member for Glasgow, North said, they are dispositions
in Scotland only. It is difficult to envisage circumstances in which
the conduct of an organisation would be grave enough to merit a
conviction for homicide but the appropriate sanction would effectively
be a formal reprimand. Nevertheless, if there are such circumstances,
it is already possible under section 246 of the Criminal Procedure
(Scotland)Act 1995 for a court to dismiss with an admonition
any person convicted by the court of any offence, and that would
include organisations convicted of the new offence of corporate
homicide. Clause 1(5) will not prevent use of the disposal, and there
is therefore no need to make special provision in the
Bill.
11.30 am
I agree that the courts should
be able to make compensation orders in appropriate circumstances. I am
satisfied that the courts in England and Wales already have that power.
Under the Powers of Criminal Courts (Sentencing) Act 2000, the criminal
courts can award compensation orders against a convicted defendant for
any personal injury, loss or damage resulting from an offence. It
applies to corporate defendants in the same way as it does to
individuals. There is therefore no need to make specific provision for
that in the Bill.
However, we do not expect that
compensation orders will often be made in corporate manslaughter cases.
The orders are designed for straightforward cases in which the amount
of compensation can be readily and easily ascertained. Where someone
loses their life, assessing the appropriate level for the compensation
order would be relatively complicated. In practice, it might be more
appropriate for compensation to be considered in the civil courts,
which have the expertise to assess the extent of damages.
I am aware that in Scotland the
position is different. Under section 249(4) of the Criminal Procedure
(Scotland) Act 1995,
“No compensation order
shall be made in respect of...loss suffered in consequence of the
death of any person”.
However, I understand that the Scottish
Executive are currently considering a report from the Sentencing
Commission for Scotland on financial penalties, including compensation
orders. As part of thatwork, the Executive will be looking at
the effect of section 249. I will draw the comments made during this
debate to the attention of the Minister for Justice.
The issue of corporate
probation has been raised, particularly the position in Canada. I am
very interested in those proposals, and will be considering during
debate what lessons can be learned from them and what can be done. I
will consider the innovative sanctions to which hon. Members have
referred.
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