Ian
Stewart: It is good to hear that the Minister is prepared
to consider the concept of corporate probation. I forewarn him that my
hon. Friends and I will be tabling an amendment to assist him in his
deliberations.
Mr.
Sutcliffe: I am ever grateful for my hon. Friend’s
warnings about what he proposes to do. I will consider it with a great
deal of
interest. Amendment
No. 33, tabled by my hon. Friend the Member for Glasgow, North, dealt
with what could be done to affect a company’s brand, including
registering at Companies House. I do not think that the idea is quite
right as it is set out in the amendment, but there are possibilities to
consider, and I will be happy to do so during
debate. This has been
a useful debate that has shown the genuine attempt by all parties to
come up with solutions. More work needs to be done. In that spirit, I
urge hon. Members not to press their probing
amendments.
Mr.
Davey: I apologise to the Committee for rising again, but
there is a substantive point that I failed to mention in my earlier
remarks—how sanctions would apply to public sector
organisations. It is important that we discuss it. Professor
Macrory’s view, as I understand it, relates primarily to private
sector corporations. The Bill is intended, as I believe we will discuss
at length, to apply to bodies in the public sector. That is a concern,
because fines on a public sector body, if that body provides an
important public service, could hit the wider community and be almost a
community punishment for something that the public sector managerial
team got wrong. The Treasury might decide that it did not want a
cutback in that public service and make good the money taken by the
fine. Hon. Members will see the conundrum in simply applying fines to
public sector bodies.
I hope that the Minister will
explain the Government’s thinking on the matter, because
innovation is clearly needed. Obviously, there are other forms of
accountability for public sector bodies. We shall have such debates
when we discuss Crown immunity and the various exemptions under the
Bill, but the Minister should not allow those types of accountability
system to be seen as a sanction in the context of the Bill. There needs
to be innovation in respect of sanctions and public sector managers.
Clearly, people’s reputations and careers can sometimes be hit,
but the mistakes that I have seen made by public sector managers do not
seem to have affected their careers. Indeed, they have often been
promoted to other bodies in other parts of the country. Public sector
bodies can sometimes get away with it and, if the whole purpose behind
the Bill is to make sure that people do not get away it, that the
victims of gross negligence and their families receive retribution and
that there is a feeling that justice has been done, we need to be
innovative in such areas,
too.
Tony
Lloyd: In general, I support what the hon. Gentleman is
saying, but he needs to be careful when suggesting that the highly
insulated public sector is radically different from large corporate
bodies, for
example. Frankly, the idea that shareholder power impinges on the
decisions of the most senior captains of industry is a myth. The degree
of insulation in large private companies is equivalent to that in
public sector companies. He should not push the public sector-private
sector difference too far. That is not the position. The difference
concerns those who need other spurs to make sure that their behaviour
conforms to what is set out in the
Bill.
Mr.
Davey: I certainly did not want to give that impression,
so I am glad that the hon. Gentleman has enabled me to put that on the
record. The fines on a
corporate cannot easily be passed on to the consumers, unless they have
monopolistic power. It is hoped that, in a competitive market, fines
will affect the profits of the company and, thus, hit the shareholders
in some way. As the hon. Gentleman implies, whether or not the fines
hit the directors would depend on whether the shareholders wreak their
retribution for lower profits as a result of the fine. My point in
wanting to extend the debate a little longer than I had intended
originally is to show that that type of mechanism does not work as well
in the public sector. I am not suggesting that the public sector is
insulated because, as the Minister and councillors will be aware, when
a public sector body has behaved badly there are often political
results and great embarrassment, and rightly so. I am still not
convinced, however, given this debate and what the Bill is trying to
do, whether that is sufficient. I should be interested to know whether
there is some thinking in the Minister’s Department about how we
can be innovative with respect to public sector
bodies. In no way did
I wish under amendment No. 100 to give the Home Secretary the power to
produce sanctions under such a procedure. I wanted to tease out from
the Minister—I am not sure whether I did—what sort of
timetable he proposes to give to the House. Yes, we have the view of
Professor Macrory and that of the Sentencing Guidelines Council. The
hon. Gentleman was right to say that there will need to be a serious
reflection on the practical implications of new types of offences, but
given how close that is to what we are debating now, it is sensible
that the Committee hears what plans the Government have in
mind.
Mr.
Sutcliffe: As for how we would approach the matter, we
could do so through secondary legislation and the affirmative
resolution procedure at the appropriate time when we have looked at the
various issues that I outlined earlier in respect of the Macrory
proposals. Such matters do not have to be outlined under the Bill. As
the hon. Gentleman said, we would not want the powers to be so
wide-ranging. When we reach that position, we shall hold the
appropriate
discussions. On the
public bodies issue, the Bill removes Crown immunity. We shall debate
the extent and the appropriateness of that later, but I am sure that
there will be an informed and detailed discussion on the way in which
the Bill deals with public bodies. Fines are already available in
relation to public bodies, in so far as many local authorities face
fines for corporate offences, and I am not against innovative ways of
dealing with them, because it is important that Crown
bodies do not escape sanction for what is a serious offence. There is
the issue of recycling of funding if public bodies are fined, and I
shall be happy to examine matters in greater detail during the passage
of the Bill, and to discuss matters with Committee members. With that
in mind, I would ask that the amendment be
withdrawn. Ann
McKechin: We have had an interesting debate, and it has
been good to see some degree of cross-party consensus on the need to
consider a wide range of penalties, so that the courts are not limited
in their ability to impose appropriate sanctions in each case. I
welcome the Minister’s comments about the possibility of a
corporate rehabilitation order, which has been mentioned by the hon.
Member for Hornchurch. To some people it may sound similar to the
principle of corporate probation, but it is worth considering, though
it needs to be properly tested, and examples and enforcement in other
jurisdictions should be considered. Nevertheless, I believe that an
essential part of the range of penalties that needs to be on offer is
that the courts be able to retain some sort of control over companies
for a period, to ensure that practices change. That should happen
either now, in the Bill, or, in light of the Minister’s
comments, after the Macrory review results are
known. On amendment
No. 32, I accept the Minister’s comments on admonition.
Realistically, admonition would happen only if the victim were a direct
relative of a company’s directors, and if the company had very
few assets. I appreciate the Minister’s comments that the power
already exists,
however. I accept the
Minister’s comments about the law in England on compensation
orders, and that that penalty is already available to the courts, but
that is not the case in Scotland. Regrettably, the level of damages in
Scottish civil cases has historically always been lower than the
English average. So the issue of compensation orders is
important—particularly, as I mentioned, in the case of single
people with no dependants, for whom the level of damages that can be
expected in a civil court may be very small. If a company has been so
grossly negligent as to deserve a conviction for corporate homicide, it
is appropriate that the penalty constituted by a compensation order is
available. Will either the Minister, or the Advocate General, Lord
Davidson, make a direct submission to the Sentencing Commission for
Scotland on that point, and request that the commission consider the
matter when it makes its final report? Obviously it will have to wait
until enactment, but it is important to flag it up now, because
consideration of the Bill for Scotland has happened very quickly and it
may well be that the members of the Sentencing Commission are not fully
aware of the implications of the
Bill. On amendment No.
33, I am pleased that the Minister indicated he would make some further
comments later. Putting notices in the register of companies is a very
important sanction that would have a salutary business effect on some
companies. As was mentioned by the hon. Member for Hornchurch, it may
be appropriate not only for manslaughter and homicide but for other
serious offences. In my own constituency, a company was convicted of
selling
weapons of torture, and I regard that as a serious offence that would be
worthy of note in the register of
companies. I welcome
the spirit in which the Minister has addressed Members’ concerns
today. I certainly hope to see further progress as we go forward in the
Bill, and I am sure that my hon. Friends will be raising the question
of individual liability. That is an important matter which, as they
say, has to be considered as a separate issue. I beg to ask leave to
withdraw the
amendment. Amendment,
by leave,
withdrawn. 11.45
am Question
proposed, That the clause stand part of the
Bill.
The
Chairman: With this it will be convenient totake
the following: Amendment No. 75, in clause 24, page 13, line 2, leave
out ‘Manslaughter’ and insert
‘Killing’. New
clause 2—Amendment of Health and Safety at Work etc. Act
1974— ‘(1) The Health
and Safety at Work etc. Act 1974 (c.37) is amended as
follows. (2) After section 33
insert— “33A
Offences committed by corporate body
etc. (1) Any failure
by— (a) a corporate
body, (b) an unincorporated
body, (c) a department or other
body listed in Schedule 1 to the Corporate Manslaughter and Corporate
Homicide Act 2006 (c. ), or (d)
a police force, to discharge a
duty to which it is subject by virtue ofsections 2 and 3 of
this Act whereby a person’s death is caused shall be an
offence. (2) The offence under
this section is
called— (a) corporate
killing, insofar as it is an offence under the law of England and Wales
or Northern Ireland; (b)
corporate homicide, insofar as it is an offence under the law of
Scotland. (3) A body corporate
or unincorporate that is guilty of corporate killing or corporate
homicide is liable on conviction on indictment to a
fine. (4) The offence of
corporate homicide is indictable only in the High Court of
Justiciary. (5) The offence of
corporate killing is triable only on
indictment.”.’. Amendment
No. 74, in title, line 2, leave out
‘manslaughter’ and insert
‘killing’.
James
Brokenshire: The new clause tests the approach being taken
by the Government in relation to the Bill to establish whether it is
the correct one and whether there may be more elegant and effective
ways of addressing the issues before us. At the outset, my hon. Friend
the Member for Beaconsfield said that he aimed to provide a simpler
alternative, although he noted that he would not ruthlessly pursue that
objective, and I will reflect my hon. Friend’s approach.
However, it is worth
taking a step back and testing whether the line that we are taking is
appropriate and whether there are other ways of addressing the
concerns that we have debated. The Health and Safety at Work, etc. Act
1974—in particular sections 2 and 3—is the starting point
for the new clause. It incorporates duties on employers to ensure that,
so far as is reasonably practicable, the health, safety and welfare at
work of all of their employees is protected and that they conduct their
undertaking in such a way as to ensure that—so far is reasonably
practicable—the persons not in their employment, who may be
affected thereby are not exposed to risks to their health or
safety. Building upon
those general duties—established under existing health and
safety law—the new clause take this established law as the
starting point, and applies it to a situation in which a specified
organisation or body fails to discharge the general duty set out in
sections 2 or 3, resulting in a person’s death which constitutes
an offence. There is merit in examining this approach. We have seen
from our debate thus far, the challenges and difficulties of seeking to
frame the legislation within the concept of manslaughter, and it may be
more effective—more elegant and easier—to create an
aggravated offence under the existing Health and Safety at Work, etc.
Act, which will reflect the gravity of the matters before
us.
Tony
Lloyd: Will the hon. Gentleman clarify what the impact of
the new clause will be? As I read it, the new clause would do nothing
more than the existing Health and Safety at Work, etc. Act, except to
give the label of corporate manslaughter in England and corporate
homicide in England, Scotland, Wales and Northern Ireland. Under the
current law, any failure by any of the organisations as listed would
already be a breach of the duties under the Health and Safety at Work,
etc. Act. Although the label is different, the fact that on conviction
or indictment the organisation is liable to a fine is equivalent to the
existing legislation. I am not clear how that provision differs from
current legislation. Perhaps the hon. Gentleman would clarify the way
in which, apart from the labelling, it differs—I do not dispute
that labelling can have some importance, but it is not a huge
change.
James
Brokenshire: The hon. Gentleman makes an interesting
point, but what are we changing by virtue of this corporate
manslaughter Bill? We are effectively creating a new offence with a
title of corporate homicide or corporate manslaughter. The penalty that
is leviable in relation to a breach of the terms of the Bill would be a
fine equivalent to provisions under the existing health and safety
legislation. That is why, in my initial comments, I was talking about
stepping back to consider the changes we are seeking and to find out
whether there are more elegant ways in which to take it forward. I will
listen to further comments and consider whether I can explain that
thinking more
fully.
Tony
Lloyd: In essence, this is the nub of what we are trying
to achieve. If the hon. Gentleman reflects on the previous debate on
the needs of victims and, in a sense, the needs of society more
generally, he will appreciate that there is something qualitatively
different between causing serious injury, for example, and causing
death.
That is recognised in other areas of the criminal law. As with other
aspects of criminal law, we now say in the Bill that creating a
different offence—causing someone to die through
recklessness—with the title of corporate manslaughter would mean
having a different process for taking prosecutions forward. I do not
mean that the evidence would be examined differently, but there would
have to be separate tests to determine whether an offence constituted
corporate manslaughter. I am not clear whether amending the 1974 Act
would have the same impact as a social
sanction.
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