Mr.
Davey: While I believe that the distinction that the hon.
Gentleman makes may well have a great deal of power to it, and I hope
that the Minister will reflect on it, let us remember that his
distinction would not have catered for the Victoria ClimbiÃ(c)
case.
Mr.
Grieve: I entirely accept that, and that is why there is
still an argument that the subsection should not be there at all,
although, if I understand the wording of the Bill, we would have to do
more than remove just subsection (2). We would also have to remove the
public authority exemption to local authorities in child care cases and
the probation service, although I have always said that that is a
rather different issue. However, we must remove subsection (2), which
applies to local authorities in child care cases. I would be willing to
consider whether we should do that on
Report.
Ian
Stewart: It is good to see you in the Chair,
Mr. Gale. In view of what the hon. Gentleman, in his deep
concern about children in some social services situations, has just
described, I put it to him that if there were such a serious breach,
and if there were no exemption, there could be case for
imprisonment.
Mr.
Grieve: It is certainly technically possible. For example,
if a social worker were to decide to allow a child who was in the care
of the local authority to visit its natural mother, even though the
social worker knew from the dossier in front of her that the natural
mother’s boyfriend was a serious risk to the child, and if,
having agreed to the home visit, she did not then put in any
supervision but decided to go to the cafÃ(c) down the road to have
a cup of coffee before picking thechild up two hours later,
and the child on the home visit was murdered by the boyfriend, I have
to say that I think that there might be an argument for a gross
negligence manslaughter prosecution of the social worker under the
existing law, albeit that that is a pretty controversial area in which
to start to become enmeshed. Technically, I do not see that that would
be impossible. I had
some difficulty following the hon. Gentleman’s argument about
the introduction of personal liability for imprisonment in this context
and I am not sure that I agree with
him.
3.15
pm
Ian
Stewart: The hon. Gentleman is helping me and others to
sort out our thinking on this complex issue, but let me press him on
the next stage of the process that he outlined. I shall use his words.
If there was gross negligence in that there was a systemic failure that
would be the responsibility of the organisation or corporation, does it
not follow that there should be at least the ability to consider the
most serious sanction—that of
imprisonment?
Mr.
Grieve: No, is the answer. I disagree with the hon.
Gentleman. As we debated earlier, I expressed my personal view that the
Government were right not to try to introduce personal sanctions on
managers for systems failures.
Manslaughter against
individuals still exists as a charge, and we have to accept that we
have created this offence to deal with the specific problem of
prosecuting corporate bodies and that if one starts immediately to say
that because the corporate body is guilty that should lead inexorably
to punitive sanctions being placed on individuals in senior management
roles, that is a step too far. It gives rise to a serious potential for
injustice. I said that earlier, and however emotive the topic that we
are discussing—it is very emotive—it does not change my
view that the correct thing to do in such circumstances, if the breach
by the individual is so grave, is that they should be prosecuted for
manslaughter under the existing law. I do not think that one should say
that the systems were so bad that someone should go to prison because
they were part of the process by which those systems were bad. In any
organisation, system failures are rarely down to one individual. A
serious risk of injustice starts to arise when someone ends up carrying
the buck for failures that should be further spread
out.
Ian
Stewart: At the risk of antagonising the
Minister— [Interruption.] Yes, and the Whip. I put it to
the hon. Gentleman that the question will still arise in the minds of
citizens of this country of who is responsible. We cannot go past that
without giving an answer. If we have an answer, we must also address
the spectrum of sanctions.
Mr.
Grieve: I agree with the hon. Gentleman that, following
episodes or incidents of a kind that give rise to great disquiet, such
as the death of any human being, because of what appear to be systems
failures, the public become angry that individuals’ heads are
not rolling. The criminal law, like anything else, can be a fairly
blunt instrument and one should beware that one is not cutting off the
heads of people who do not necessarily deserve to have them chopped. On
the whole, in such settings, unless one can show specific criminal
culpability at a level that would justify a manslaughter charge against
the individual, I am reluctant to see people sent to prison for
failures that might be due to negligence. We have a long history in
this country of not jailing people for being negligent. We jail them
for being grossly negligent, but not for straight negligence. That is a
pretty good distinction to hang on to, and if we lose sight of it I
fear that we will end up with a system that appears to be unjust.
Perhaps
in the short term members of the public will feel assuaged by the sight
of a manager being sent to prison, but in the medium term it will not
have a good impact. First, it will not succeed in changing the
behaviour of managers, because we live in a world where all human
beings make mistakes. Secondly, it is potentially unfair, because it is
rare that one individual is to blame for a systems failure. If one
person is wholly to blame, however, it is a good reason for prosecuting
him for manslaughter in the first place.
Having been briefly diverted
from what I was about to say, I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn. Clause
8 ordered to stand part of the Bill.
Clause
9Factors for
jury
Mr.
Grieve: I beg to move amendment No. 137, in
page 6, line 33, after
‘death’ insert ‘or serious
injury’. Amendment
No. 137 seeks to provide that thejury should consider serious
injury as well as death. Clause 9 is about the factors that the jury
must take into account. Amendment No. 136, which I did not move, was
linked to earlier amendments about whether the jury should decide
everything, but it is no longer relevant because we have already had
that debate. Under
subsection (2), the jury must consider whether the evidence shows that
the organisation failed to comply with any health and safety
legislation relating to the alleged breach and, if so, how serious that
failure was—and, as things stand at the moment, how much of a
risk of death it posed. An old trite saying at the criminal bar is that
murder is grievous bodily harm with a corpse. The truth is that the
risk of serious injury and the risk of death cannot be disentangled one
from the other. When
deciding or assessing risk, organisations should consider the risk of
serious injury rather than the risk of death. That is certainly how it
has always appeared to me to be in health and safety practice. I was
therefore a little surprised to see that subsection (2) concentrates on
the risk of death rather than the risk of serious injury or of the two
together. It seems to me that negligence arises once one starts to
ignore serious injury, because death results from serious
injury. It is a
simple issue. The Minister may be able to persuade me that the wording
of the Bill is perfectly adequate, but I nevertheless move the
amendment for the Committee’s
consideration.
Mr.
Sutcliffe: In the draft Bill, we proposed that the jury
should be required to consider the risk of death or serious injury when
deciding on the question of whether a breach was grossly negligent.
When giving evidence to the scrutiny Committee, Sir Igor Judge said
that to include the risk of serious injury would mean that the test
moved away from the current law. A number of cases have considered
whether the test for manslaughter should consider the risk of both
serious injury and death, and it has been decided that it should be
risk of death alone.
It is hard to envisage
circumstances in which a high risk of serious injury existed in which
there was also a risk of death. If someone has died, there clearly
existed a risk of death. However, we think it right that the jury
should be asked to consider management failures against the risk of
death that was posed, given that the offence will be one of homicide.
We do not wish to suggest a different test from that used under the
current law—nor, as the hon. Gentleman will appreciate, do we
want to create a bonanza for lawyers.
If the jury considers the risk
of serious injury to be relevant, it will be able to take that into
account in appropriate circumstances. Subsection (4) ensures that the
jury will be able to consider any other matter that it considers
relevant, including the degree to which the activities in question
posed a risk of serious injury.
I hope that that gives
sufficient explanation of why we included the risk of death alone in
subsection (2), rather than the risk of death and of serious injury. I
hope that the hon. Gentleman will be satisfied with that and will
withdraw the amendment.
Mr.
Grieve: Far be it from me to question the reasonings of
Sir Igor Judge. I was influenced by my experience of health and safety
at work law, which centres on issues of injury and risk rather than the
result of those, which may be death. However, the Minister has
persuaded me and subsection (4) appears to cover the matter. I beg to
ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
9 ordered to stand part of the
Bill. Clause
10Power
to order breach etc to be
remedied
Tony
Lloyd: I beg to move amendment No. 83, in
page 7, line 16, after
‘convicted’, insert ‘or is found not
guilty’.
The
Chairman: With this it will be convenient to discuss the
following amendments: No. 84, in
page 7, line 18, at end insert
‘or’. No.
85, in page 7, line 19, leave out
‘to have resulted from that breach
and’. No. 86,
in page 7, line 26, at end insert
‘and may include reference to a
person or persons, who are to be responsible for the specified steps
being
taken’. No.
110, in page 7, line 32, at end
insert ‘and a person
referred to in an order in this section may be guilty of contempt, if
the specified steps are not taken by the organisation in accordance
with an order under this
section’.
Tony
Lloyd: There is a division of labour, but I think that
Labour is united on
this. This group of
amendments comes under two separable headings, but it might help the
Committee if I started by talking about the Marchioness disaster.
Committee members will recall that the salient facts were that in the
early hours of the morning two boats collided on the River Thames. The
collision happened
because there was inadequate visibility in the boats’ wheelhouses
and—I recall it well—the skipper of the Bowbelle, which
rammed the Marchioness, failed to put a proper look-out on the bow of
his boat, so a preventable accident was not prevented. The skipper was
charged under the manslaughter laws with, I think, gross recklessness
and manslaughter. The result was that, although the charges went to
court, the case was not proven and the skipper was found not guilty on
two occasions. That
case is important to bear in mind in respect of amendment No. 83, under
which the court is invited, rather unusually, to take remedial action
even if the defendant corporation is found not guilty. It is unusual to
apply a remedy against an organisation that is found not guilty. Most
people would say, in a common-sense way, that in the specific
circumstances of the Marchioness, it is clear that a matter that could
have had remedy went wrong. It would be ridiculous for us not to seek
to provide a remedy, having established that such a remedy existed, and
it would be even more ridiculous if we had no power to order the proper
remedy because the charges were not provable in court against an
individual or a
corporation. We know
that cases have failed in court and not guilty verdicts have been
given. In the case of the Marchioness there was no remedy. Under the
clause as it is presently worded, it would have been impossible for the
court to order proper remedy at a later stage. That is impact of
amendment No. 83, which is important in its own
right. The purpose of
amendments Nos. 86 and 110 is to recognise that an order made under the
clause is made against an organisation or incorporated body. However,
it is a matter of practical fact, and almost common sense, that for
remedy to be actioned individuals must action it. There must be
individuals in the incorporated body who will take those actions. If
the incorporated body fails to take remedial action, there will be
remedy against it. However, in a rather different way from the earlier
debate between my hon. Friend the Member for Eccles (Ian Stewart) and
the hon. Member for Beaconsfield about individual liability, we are
seeking for individuals to be named by the court as those in the
incorporated body who have the responsibility and duty of ensuring that
that remedy is applied. Failure to act and to bring those remedies
forward would result in individual liability, because where a remedy is
ordered against an individual it makes sense for a penalty arising from
a failure to act in that way to be against that
individual. There are
two quite separate arguments about this group of amendments. Those that
concern the first part of the clause are intended to ensure that the
remedy applies where guilt is not proven. The other amendments try to
ensure that when the court issues remedial action it has the capacity
to ensure that it is implemented and that there is a penalty for
failure to implement that remedy against those who so
fail. 3.30
pm
Mr.
Grieve: The hon. Member for Manchester, Central has
entirely worthy objectives within the context of the remedial orders.
The problem that I have—I have mentioned it before, but this is
a good
time to mention it again, because we are now discussing the relevant
clause—is that there is a big question mark over the entire
framework of remedial orders in the Bill.
As I think
I mentioned on Second Reading, a serious accident that leads to death
will, irrespective of a prosecution under the Bill, be investigated by
the Health and Safety Executive or, potentially, by a local authority
through its health and safety inspectors. A panoply of powers is
available to the HSE and those inspectors in respect of deficiencies,
which include the power to issue a prohibition notice, which says that
a particular method of operation must cease completely, or an
improvement notice, which says that a body must carry out certain
improvements to its procedures within a set period of time, or in some
cases a mixture of the
two. Given my
experience with manslaughter cases and cases of similar seriousness,
and the likely numbers of such cases in any year that will come to
trial many months after the incident took place, it is most improbable
that there will still be anything to be remedied by the time such a
case reaches trial. That is my initial gut reaction. If there is still
something to be remedied by the time the trial takes place, the HSE or
the local authority has not done its job properly, which is a worrying
phenomenon. However, it is my experience that the issue will have been
dealt with. I also
point out to the hon. Gentleman that the HSE’s powers to impose
prohibition or improvement notices is quite independent of whether
somebody is guilty of a breach of the Health and Safety at Work, etc.
Act 1974. If those on the receiving end of such notices do not like
them, their remedy is to appeal them to the employment tribunal, where
the dispute is thrashed out. I have done such cases at the employment
tribunal and I can assure the hon. Gentleman that the notice will bite
until it is removed. There is no question of a company or a corporate
body saying, “Oh, let’s appeal this to the employment
tribunal, because in the meantime we can carry on with our practice
until we are told that we have to stop
it.”
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