Ian
Stewart: The hon. Gentleman has outlined the spectrum of
culpability and he explains that there may be circumstances in which an
individual may have little culpability. However, does he not recognise
and accept that we are trying to focus on the other end of the
spectrum, where there is clear culpability? Is it not self-evident,
glaring and accepted that, in such circumstances, we must do what we
can to ensure that the families of the deceased feel that justice is
done, in the words of the hon. Member for
Hornchurch?
Mr.
Grieve: Yes, I agree. That is a good reason to try to do
what the Government are setting out to achieve. All I am saying is
that, based on my professional experience, my hunch is that there will
be quite a lot of cases that, as cases always do, will fall in the grey
area between being a breach of the Health and Safety at Work, etc. Act
with no recognition of death—death is recognised as an
aggravating feature in sentencing, but that is only in the sentencing
guidelines—and being corporate manslaughter.
I hazard the suggestion that we
might well end up with people feeling that the death of a relative or
friend has not been adequately recognised because, perfectly properly,
the prosecutors has considered what went on and said,
“I’m sorry, but this is not corporate manslaughter as
defined in the Bill.” There will be a health and safety
prosecution, the company directors and everybody else at the company
concerned will breathe a sigh of relief, go to court cheerfully, plead
guilty and be fined, and people will come away
feeling distressed and unhappy. That is always a problem. I have prosecuted cases where,
for some reason or another, the evidence has failed in the course of
the case and I have had to accept pleas to regulatory breaches and not
a breach of the Health and Safety at Work, etc. Act. I remember how
difficult it was to explain to the relatives of the deceased person why
I had done that, which, as the prosecutor, I had a duty to do. In fact,
I had no option. I know from that experience how difficult that is. The
Bill offers a way around that problem because all that is left is
fixing the tariff for the penalty.
Equally, however, the hon.
Gentleman is perfectly right: if what the Government want to do is to
identify a particularly bad form of behaviour—I see the Minister
nodding—and then to structure a quite complex offence targeted
solely at corporations, which will be visited by a fine, so be it. The
Government accept that not much can be done other than to fine
corporations. That is dealt with in clause 9. There will be no
unfairness. The trial will be perfectly fair and the proposed structure
is reasonable, but if I am asked my opinion, I will have to say that I
really wonder whether we are not taking a slightly blunt instrument to
the problem, and whether we could not generate as good a culture change
by what seems to me to be a neater and easier alteration to the law
that would lead to a very high rate of conviction and might impose some
stigma. After all, under my proposals, a company would be found guilty
of corporate killing. I know that that is not quite the same as
manslaughter, and I think that we should keep such distinctions
present, but it still does not sound very good in a company’s
annual report to shareholders, and we will secure more
convictions. There are
two options. I have presented my option. I have probably spoken too
long. I apologise, Mr. Gale, and thank you for your
indulgence on the matter. I shall not trouble the Committee further,
except to apologise for not being here at the start of the
sitting.
Mr.
Sutcliffe: I set out the Government’s position
earlier. I respect wholeheartedly the hon. Gentleman’s right to
put the Opposition’s case for the reasons that he gave. Nobody
in the Government would challenge his professional experience, but
there is a clear, fundamental difference between our approaches to the
problem. That was clear on Second Reading and has been clear in
Committee. The
Government believe that the Bill is about changing the culture and
ensuring that corporate bodies understand their responsibilities. There
is a difference of opinion between us, but I still hope that hon.
Members will support clause
1. Question put and
agreed
to. Clause 1,
as amended, ordered to stand part of the
Bill.
Schedule
1List
of government departments
etc.
Mr.
Sutcliffe: I beg to move amendment No. 7, in page 14, line
3, at end insert— ‘Assets
Recovery
Agency’.
The
Chairman: With this it will be convenient to discuss
Government amendments Nos. 8 to 29.
Mr.
Sutcliffe: The Bill will, for the first time, remove Crown
immunity to prosecution. It is a significant step that raises a number
of practical issues that the Bill must deal with, particularly the fact
that the offence is one that is committed by organisations and not by
individuals, but the vast majority of Crown bodies, such as
Departments, do not have their own legal identity distinct from the
Crown. A mechanism is therefore needed to identify those organisations
that operate on behalf of the Crown and against which proceedings for
the new offence could be taken. The purpose of schedule 1 is to
identify those bodies and others in a similar position.
There is no need, however, for
the list to cover public bodies that are incorporated, because they
will be covered automatically by the offence. They include a wide range
of bodies in the public sector such as local authorities, NHS hospital
trusts and other NHS bodies and a wide range of statutory
non-departmental bodies as diverse as the Health and Safety Executive,
the Parole Board and the Civil Aviation Authority. Few such
organisations have Crown immunity. They are therefore already liable to
prosecution for gross negligence manslaughter.
The schedule therefore focuses
on ministerial and non-ministerial Departments. We have identified a
number of further departments that must be added to the schedule. They
are the Assets Recovery Agency,the Central Office of
Information, the GeneralRegister Office for Scotland, the Land
Registry, the National Archives, the National Archives of Scotland,
National Savings and Investments, the Office for National Statistics,
Ordnance Survey, Registers of Scotland, the Revenue and Customs
Prosecutions Office, the Royal Mint and UK Trade and
Investment. We also
propose to add to the schedule three statutory bodies: the Welsh
Assembly Government, the National Audit Office and the Northern Ireland
Audit Office, which are all statutory organisations that are not
incorporated and therefore need to be listed to ensure that the offence
applies. On the other hand, the schedule will not list all Departments,
because a number are incorporated and will be covered by the offence
without being listed in the schedule. They include Northern Ireland
Departments, the Office of Fair Trading, the Food Standards Agency, the
Office of Rail Regulation and the Postal Services Commission.
The amendments will remove a
further two bodies from the list because they are becoming bodies
corporate. One is the Charities Commission, which is due to become
incorporated as a result of the Charities
Bill.
Michael
Fabricant: When the Bill becomes law, as I assume it will,
if other Government agencies are set up or change their structure and
become corporate, will there be a mechanism to bring them into its
ambit or to remove them from
it? 12.45pm
Mr.
Sutcliffe: I hope to explain that further during my
speech. As I said, the
Charities Commission is due to be incorporated under the Charities
Bill. The Office for Standards in Education will become a body
corporate
under the Education and Inspections Bill. In addition, the Office of the
International Rail Regulator is removed from the list because it has
been abolished. The reference to the Public Records Office is removed
because it is now part of National Archives, which has been added to
the list. References
to the Scotland Office and the Wales Office are also removed under
amendments Nos. 26 and 28 because although they are technically
Departments, both bodies are administratively a part of the Department
for Constitutional Affairs and, for practical purposes, it is that body
that should be responsible for the duties of care owed to staff and
others. Generally, no further clarification would be needed that the
listing of a Department included all its associated bodies. For
example, although the Commissioners for the Reduction of the National
Debt and the Public Works Loans Board are both non-ministerial
Departments, they are both also part of the United Kingdom Debt
Management Office, an executive agency of the Treasury, and therefore
covered by the listing of that Department. However, as there are
separate Secretaries of State for Scotland and for Wales, the better
approach is to clarify that the entry for the Department for
Constitutional Affairs includes the Scotland Office and the Wales
Office. Amendment No. 10 achieves
that. I have mentioned
Executive agencies and some hon. Members will have spotted that a
number of bodies included in the schedule are Executive agencies. Our
approach is to list all Departments, whether or not they are also
Executive agencies. In other cases, Executive agencies will be fully a
part of their parent Department. There is a degree of managerial
independence, but no formal separation. It is not our intention, in
applying the offence to the Crown, to alter the relationships between
Departments and agencies by introducing any formal separation through
the provision of independent criminal liability. That does not mean
that fatalities associated with Executive agencies will not be covered
by the offence. The listing of a Department covers its associated
agencies. I am
conscious that I have spoken at some length—hopefully with some
clarity—on this group of amendments and, in doing so, I have had
described them in the wider context of how the schedule operates and
the policy behind the compilation of this
list. Clause 19 makes
provision for the schedule to be amended by secondary legislation. That
deals with the point made by the hon. Member for Lichfield (Michael
Fabricant). Amendment
agreed to.
Amendments made: No. 8,
in page 14, line 5, at end
insert— ‘Central Office of
Information’. No.
9, in page 14, leave out line
6. No. 10, in
page 14, line 10, at end insert
‘(including the
Scotland Office and the Wales
Office)’. No.
11, in page 14, line 21, at end
insert— ‘General Register
Office for
Scotland’. No.
12, in page 14, line 22, at end
insert— ‘Her
Majesty’s Land
Registry’.
No. 13, in
page 14, line 26, at end
insert— ‘National
Archives’. No.
14, in page 14, line 26, at end
insert— ‘National Archives
of
Scotland’. No.
15, in page 14, line 26, at end
insert— ‘National Audit
Office’. No.
16, in page 14, line 26, at end
insert— ‘National Savings
and
Investments’. No.
17, in page 14, line 26, at end
insert— ‘Northern Ireland
Audit
Office’. No.
18, in page 14, line 29, at end
insert— ‘Office for National
Statistics’. No.
19, in page 14, leave out line
30. No. 20, in
page 14, leave out line
33. No. 21, in
page 14, line 33, at end
insert— ‘Ordnance
Survey’. No.
22, in page 14, leave out line
36. No. 23, in
page 14, line 36, at end
insert— ‘Registers of
Scotland Executive
Agency’. No.
24, in page 14, line 36, at end
insert— ‘Revenue and Customs
Prosecutions
Office’. No.
25, in page 14, line 36, at end
insert— ‘Royal
Mint’. No.
26, in page 14, leave out line
37. No. 27, in
page 15, line 1, at end
insert— ‘UK Trade and
Investment’. No.
28, in page 15, leave out line
2. No. 29, in
page 15, line 2, at end
insert— ‘Welsh Assembly
Government’.—[Mr.
Sutcliffe.] Schedule
1, as amended, agreed
to. Clause 2
disagreed
to. Clause
3Meaning
of “relevant duty of
care”
Mr.
Davey: I beg to move amendment No. 123, in
page 2, line 23, after
‘supply’, insert ‘or
provision’. We
may now begin to discuss a series of amendments, with which we will no
doubt deal in greater detail this afternoon, on the extent of the
exemption from the new offence for public authorities. The Government
are trying to narrow the relaxation of Crown immunity rather too much.
That will be clear in specific examples that we will debate in
detail. Amendment
No. 123 would start to whittle away the restrictions that the
Government are imposing. They seem to think that the exemptions are
valid because public sector bodies are accountable in different ways:
to Parliament or via the prospect of judicial review, public inquiries
and ombudsmen’s inquiries and so on. However, we do not accept
that such forms of accountability work as powerfully as we need them to
when we are dealing with something as serious as corporate
manslaughter. I am
sure that the Minister is aware that although ministerial
responsibility and accountability can sometimes apply, in many cases
Ministers find ways of
ensuring that they do not. That has been the case under not only the
present Government, but many past ones. The constitutional doctrine has
fallen into misuse and non-use on many occasions. I am not convinced that the
Government have adopted the right approach. Judicial review will not
apply—primarily because if the limits are in statute, there will
be nothing to review. As we all know, whether public inquiries occur is
rather haphazard; Ministers often resist them until the last moment.
Legislation that has recently passed through the House looks as though
it will make that type of accountability even less likely. The same
concerns relate to ombudsmen. The Government’s approach to
justifying the exemptions does not bear much
scrutiny. By ensuring
that we understand the distinction between “supply” and
“provision”, amendmentNo. 123 seeks that the
restrictions on public authorities in general should not be drawn too
narrowly. Most public services involve supply, but in certain cases
they involve not supply but provision. The distinction was taken up by
the Select Committees, which felt that the Government did not emphasise
the use of the words in the draft Bill. The Committees felt—and
I agree with them—that by excluding the notion of the
“provision” of public services, there was a real attempt
to limit applicability.
I shall give concrete examples.
David Bergman, director of the Centre for Corporate Accountability,
told the Joint Committee that the Home Office had made it clear to him
that there was an intention to restrict. The Home Office felt that by
not including the word “provision”, services such as the
police, the Prison Service, law enforcement bodies and inspection
agencies would not be covered in respect of many of their activities.
That is particularly
surprising. There is a
danger that the problem will slip in. In later clauses, there are
specific provisions on such services and bodies. However, clause 3,
which is framed more generally, contains words that would also impinge
on such bodies. I am sure that there is no intention to mislead, but
there could be confusion. I hope that the Minister will try to explain
why he wants to go down that route. We feel that it will have
unintended
consequences.
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