Corporate Manslaughter and Corporate Homicide Bill

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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 1

List 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?
Mr. Sutcliffe: I hope to explain that further during my speech.
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 3

Meaning 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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Prepared 25 October 2006