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Under the Bill, the only option is to prosecute for regulatory offences, but there is a strong argument that it is an abuse of process to charge a company with two offences—corporate manslaughter under the Bill and a breach of the Health and Safety at Work, etc. Act 1974—that arise from the same circumstances. But without such a prosecution and, ultimately, a conviction under the 1974 Act, directors or managers cannot be liable under section 37. Corporate manslaughter charges could, therefore, reduce the individual liability of directors in the most serious cases. With clause 16 also excluding secondary offences, one of the main requirements of reform has
been rejected. After all, the purpose of the Bill must be to act as a deterrent, and without individual liability it is far less likely to do so.
New clause 1 would go some way to meet the Government’s concerns about the relationship between corporate and individual liability by referring to the conduct of the company officer concerned—it is limited to the senior, top, directors—as contributing to the breach that gives rise to the offence of corporate manslaughter. The linkage between new clause 1 and the Bill is not dissimilar to the linkage between section 37 of the 1974 Act and a substantive offence by a corporate body under that Act that can make a director liable, under section 37, for the offence of the company if it is attributable to that director’s neglect, consent or connivance.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): I am not making a drafting point—I recognise that that can be dealt with elsewhere—but I should like to ask the hon. Gentleman what he has in mind by using the word “contribute”, which can refer either to a major cause or to a slight cause. I hope that he is not saying that the officer of the company should be liable for corporate manslaughter if the contribution to the breach of duty is very slight.
Mr. Dismore: I deliberately dealt with that issue in that way for precisely the reasons raised by the right hon. and learned Gentleman. Ultimately, such questions would be for the jury and the good sense of the prosecution. I realise that the wording might not be as precise as the formulation in, for example, section 37 of the 1974 Act—indeed, such an option will be put before the House in other amendments—but the degree of contribution, although not particularly high, should be sufficient. My objective is to produce an offence whereby the director stands in the dock alongside the vacant chair that represents the company.
Amendments Nos. 7 and 8 deal with the problem in clause 16 by reversing it, so that individuals can be guilty of aiding, abetting, counselling or procuring the corporate offence. That provides an alternative formulation within the corporate nature of the offence, as opposed to the individual liability to which I have referred.
New clause 2 provides for the penalty for a director on conviction to be either a fine or imprisonment. That clear deterrent is needed to concentrate the mind of the senior managers on their obligations not just to run their companies within the requirements of the companies Acts to ensure financial probity, but to ensure that they are run safely too.
I understand from discussions that the Government might be considering an amendment to the 1974 Act to create a new statutory duty on directors to take reasonable steps to comply with health and safety requirements—I await the Minister’s views on that with interest—but I wonder whether that would add anything to section 37, which already provides for an offence by a director if the company is convicted. However the 1974 Act is amended, it would be a poor substitute for creating a clear offence of corporate manslaughter for which a director could be held liable, as I propose in new clause 1.
Mr. Dominic Grieve (Beaconsfield) (Con): With the amendment from the hon. Member for Hendon (Mr. Dismore), we return to the issue that exercised us in Committee: the extent to which there should be personal liability on directors arising out of a company’s conviction for corporate manslaughter. I listened carefully to what he had to say and thought that he made one telling point, with which I have some sympathy. He indicated that one of the consequences of introducing a corporate manslaughter offence might be—I emphasise “might”; it would depend how prosecutors wanted to deal with the matter—that fewer directors were convicted under section 37 of the Health and Safety at Work, etc. Act if there were a serious case of death. That is because the prosecution would go for corporate manslaughter and there would be no means, in those circumstances, of implicating the directors of the company. That seems a fairly compelling point, although it could be addressed by also charging companies under the Health and Safety at Work, etc. Act. However, it is certainly a complicating feature.
Although I do not wish to revisit territory that we covered in Committee, that is why I think that the approach that we have adopted to corporate manslaughter may not be correct and why I tried to tempt the Committee into having an aggravated offence under the Health and Safety at Work, etc. Act, which would attract higher financial penalties on corporations and could attract higher financial penalties on directors if there were to be a conviction. However, I accept that that did not commend itself to the Government and I have not sought to revisit that issue in these debates, because the Government have clearly nailed their colours to the mast. They have said that they wish to have an offence of corporate manslaughter to act—this is not meant in any way pejoratively, I hope—symbolically so as to attach a particular stigma to corporations that transgress in cases of gross negligence.
The problem is that once one has established that principle, to start converting it by saying that, if the corporation is guilty, it would be right to lock up its directors, is, in principle, utterly wrong, as I have said before. Of course, there may be evidence in individual cases that means that the directors of a corporation, or indeed senior managers, might be individually charged with the offence of manslaughter through gross negligence. That must remain a possibility. I would be completely satisfied if prosecutors were to adopt a robust approach to such issues. If the evidence is there, people should be prosecuted.
We cannot, however, get away from the fact that the offence of corporate manslaughter, as we are creating it here, is different in a number of key particulars from the offence of manslaughter generally, which could be charged against corporations and/or individuals and which existed previously. To take away somebody’s liberty, which is what is being proposed, on the basis of a corporate manslaughter conviction, under the test that is clearly implicit and explicit in new clause 1, appears quite wrong.
The point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) has some force. What is the extent of the participation or contribution that would be sufficient to fix the director, senior manager or officer of a
company with liability that would lead to his facing an unlimited term of imprisonment or an unlimited fine? The House should not embark on such a route lightly. In this country, we have always been reluctant to criminalise people to the point of imprisoning them for negligent acts. There are exceptions, and manslaughter is one of them. However, corporate manslaughter and manslaughter will be two different offences, in a number of subtle, but important ways.
Tony Lloyd (Manchester, Central) (Lab): This debate also took place in Committee, but it is worth placing it on the record that, by definition, the offence of corporate manslaughter amounts to the causing of a person’s death where there is a “gross breach” of
“a relevant duty of care”.
We are not talking about a trivial matter of negligence. As the hon. Gentleman knows better than I do, a gross breach is a strong test before the courts. It would be necessary to prove both the corporate manslaughter and the corporate nature of that manslaughter before any individual would be caught within the realms of new clause 1 or, as I will explain later, new clause 6. We might disagree about whether people should be imprisoned, but the powers will never be used for a trivial matter and the court will have to apply a strong test.
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Mr. Grieve: As the hon. Gentleman will be aware, one of the reasons corporate manslaughter prosecutions have been so difficult to bring under existing law is that the rule under which one must find a directing mind of the company that one fixes with gross negligence, which can then involve the company itself. That is why cases such as the Herald of Free Enterprise and others never led to convictions. Therein lies the source of the problem, because in those cases individuals clearly could not be fixed with gross negligence at a directing mind level, and thus the company could not be convicted.
The hon. Member for Hendon proposes to reverse the process and to have an offence of corporate manslaughter that will enable us to convict corporations without looking at directing minds, which I welcome, and, hey presto, to catch the directors even though no directing mind is involved. That is where the injustice might arise and why, as a matter of principle, I am unwilling to go down that road, even though I can see the temptation.
The right hon. Member for Southampton, Itchen (Mr. Denham) has an alternative approach. His new clause 4 envisages a non-custodial penalty—disqualification of the directors—and I dare say that we shall hear more from him later in the debate.
I am much more agreeably inclined toward that course of action because it does not involve imprisoning people, but I should simply make two points. First, the power already exists to disqualify company directors; it would be astonishing if they were not to face possible disqualification proceedings in a clear case where there was a prosecution. Secondly, the mechanism that the right hon. Gentleman envisages is
very ponderous. It is a sledgehammer to crack a nut, because one would have to drag all the directors into the principal prosecution of the corporation merely to disqualify them under his proposals.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Gerry Sutcliffe): The hon. Gentleman makes the point that the law on disqualification already exists. Perhaps one of the problems has been the interpretation of its provisions or a lack of will to deliver on disqualifications. I am aware that the Health and Safety Commission is issuing guidelines to its inspectors so that they examine this more seriously than perhaps they have done.
Mr. Grieve: I am grateful to the Minister for those comments, because I entirely endorse that approach. Some cases—even those involving corporate manslaughter, as opposed to breaches of the 1974 Act—might not justify disqualifying directors. There might also still be clear cases for prosecuting individuals with manslaughter itself. As I have said, I do not disagree with that approach.
Ian Stewart (Eccles) (Lab): Given that the hon. Gentleman indicated his attraction to the approach in new clause 4, does he accept that if such a provision were available to courts, they found an individual director guilty and the director then did not comply with the decision of the courts, that director could be sent to prison? If so, in the light of the learned gentleman’s knowledge, why cannot such a person be sent to prison for wilfully creating a situation on behalf of a company in which someone loses their life?
Mr. Grieve: For the reasons I gave before. Someone who had been involved in the way the hon. Gentleman describes would be liable for conviction for manslaughter, and that is what they should be prosecuted for.
The point about new clause 4, which I found interesting in some ways, is that it provides a mechanism for the direct disqualification of directors, but to disqualify them one has to show that the offence was committed with their “consent or connivance”, which means that they will have to be in the dock during the trial. That is just a muddling feature, given that the same outcome can be achieved without all the paraphernalia and extra cost of holding disqualification proceedings thereafter; that was my simple point.
To come back to the key issue, if somebody commits a killing by gross negligence through their direct, personal involvement, they should be prosecuted for manslaughter under existing law, but they should not be dragged into prison because they are associated with a corporation convicted of corporate manslaughter, because there injustice lies.
Mr. Frank Doran (Aberdeen, North) (Lab):
I understand the hon. Gentleman’s point, but the difficulty is that such prosecutions have not happened. There are many examples, particularly among the cases of the 1980s with which we are all familiar. However, there is another incentive to consider. I do not know which of the many mechanisms before us would be the preferred course, but I put my name to new clause 6. It strikes me that the aim of the Bill—and not just the
new clauses that we are discussing—is not to ensure that there is a queue of company directors adding to the overcrowding at Pentonville, but to act as an incentive to improve safety and safety culture. I do not think that existing legislation will be affected much by the Bill, but unless we introduce some form of personal liability, the culture will not improve. People will find other ways of ducking and weaving to avoid liability. It is the culture that we need to attack.
Mr. Grieve: I do not disagree with the hon. Gentleman about attacking the culture. Having spent a lot of my professional life prosecuting for the Health and Safety Executive, I am perfectly conscious that one can come across examples of very bad safety culture, pervading even the director’s office, and not just the lower managerial levels; I accept all that. It may be that prosecutors were insufficiently proactive in the past, but I hazard the suggestion that the reason there have not been many convictions among company directors for manslaughter through gross negligence is that, in truth, there was no evidence on which to convict them. Although they may have been culpable of negligence, they were not culpable of gross negligence.
Of course, there are one or two cases in which such directors were convicted, and the Lyme bay tragedy is an example. However, the hon. Gentleman must accept that it may be harsh to make such a judgment when something goes wrong, particularly in large organisations, in which directors cannot necessarily know what goes on, day to day, at the bottom of the organisation—although, from the point of view of safety culture, they must make it their business to endeavour to do so.
One could tell a director that there were negligent structures in their company, but to say that the situation was so bad that the director was grossly negligent is going a step further. If the evidence exists, they should be prosecuted for manslaughter, regardless of whether they are the director of a massive public company or not; we should prosecute in such cases. However, we should not say that if a corporation is convicted under the new law, it follows that a director can be sent to prison, if negligence can be shown. Really, that is all we are saying. A contribution to negligence is all that the hon. Member for Hendon requires. A mere contribution would be sufficient to send a director to prison. I do not know about the queue of directors going to Pentonville prison, but the danger is that if we introduce such a measure, there will be a very long queue of people who do not want to be directors of public companies.
One must take a realistic view of the situation. My view is that the Bill may make a contribution to improving safety culture by shaming companies, and some of the provisions for dealing with remedies, which we shall come to later, may help, too. I am pleased that the Government have introduced further amendments on that subject. However, the proposal before us drives a coach and horses through perfectly clear and established legal principles. For those reasons, I really cannot support it.
Mr. Edward Davey (Kingston and Surbiton) (LD):
My problem with the hon. Gentleman’s argument is that he tries to present the issue as being black and
white. Surely there may be directors who are not guilty of individual gross negligent manslaughter, but who have contributed to a death by their failure in other ways. What offence does he think should be available to the courts to enable them to prosecute those directors?
Mr. Grieve: Section 37 of the Health and Safety at Work etc. Act allows such prosecutions. If the hon. Member for Hendon is right that the measure will prevents health and safety at work prosecutions under that Act, I accept that there could be a problem. The key point, however, is that someone convicted under section 37 cannot be sent to prison, just as they cannot be sent to prison for careless driving. Carelessness and gross negligence are not the same thing. The amendments, with the exception of the new clause tabled by the right hon. Member for Southampton, Itchen (Mr. Denham), would create imprisonable offences. I must draw the line at that, so I do not support the hon. Member for Hendon.
Mr. Davey: I expected the hon. Gentleman to give that reply, but is he aware that very few cases in which someone is charged with being a secondary party to a health and safety at work offence have been successfully prosecuted?
Mr. Grieve: I am aware of that but, equally, may I point out that I have represented a director who was successfully prosecuted? In fairness, he pleaded guilty to the offence, but there are examples of such cases. The Health and Safety Executive may have to become more proactive, but the material is available. I do not wish to take up too much of the House’s time, so I shall draw my remarks to a close. The proposals are interesting, but the official Opposition’s view remains that it is fundamentally wrong to criminalise individuals under corporate manslaughter provisions, so we do not support them.
Mr. John Denham (Southampton, Itchen) (Lab): Most right hon. and hon. Members who are taking part in this debate recently participated in an intensive programme of discussion in Committee, but I am returning to these matters after a gap. It was a year since the draft Bill was scrutinised by the Home Affairs Committee, which I chair, and the Work and Pensions Committee, so I am rusty on the finer points of law. However, my overwhelming memory is of the public’s expectations that Parliament should legislate on corporate manslaughter. We took evidence from a wide range of organisations, including well-known ones such as Disaster Action, the Simon Jones memorial campaign, the Marchioness contact group and a number of trade unions, whose officers deal directly with the families of people killed in workplace accidents.
It was clear that the job would be only half done if we were able to hold companies to account but not the individuals whose negligence contributed to the problems that resulted in those companies being brought to court. I fear that if we do not amend the Bill as it proceeds through Parliament, we, or our successors, will have to come to the House in a few years’ time to address the issue again. It is easy to anticipate circumstances in which companies that have escaped prosecution under the common law offence are successfully brought to book under the corporate
manslaughter provisions that we are discussing. No individual, however, will be held to account for their part in the death, so the provision will be regarded as unsatisfactory law. It will be better than current provisions—without doubt, it will be a step forward—but it does not go as far as it could.
New clause 4 has a modest aim. I should make it clear that the Committees that scrutinised the Bill called for secondary prosecution under criminal law. To be fair, however, that was one of the few issues on which we divided, and the vote was split. We pointed out that several pieces of legislation, including health and safety legislation and the Terrorism Act 2000, provide a legal structure for secondary prosecution of individuals when companies are found guilty of an offence. My modest new clause aims simply to clarify the proposal that once a company is found guilty of corporate manslaughter, at the very least its directors, who share responsibility, as the new clause sets out, should be disqualified from serving as company directors.
As the hon. Member for Beaconsfield (Mr. Grieve) says, there might not be any need for that. I make two qualifications. First, if it requires a separate prosecution under health and safety legislation to achieve that outcome, that would not be satisfactory. Secondly, even at the slight risk of over-egging the pudding, there is an advantage in making it clear in the Bill that the House had an expectation at the very least that disqualification would follow. Personally, I would prefer to see a secondary prosecution, but we may not be able to achieve that as the Bill goes through Parliament.
The amendment suggests to the Minister some action that could be taken. He may say that every legal measure already exists, and that if corporate manslaughter becomes a criminal offence as proposed, directors will be liable for disqualification without hesitation or obstacle. That would be a satisfactory response from the Minister, but if not, the Bill should be amended here or in another place to make it clear that we can offer at least that consequence to the families whom we heard represented in front of our Joint Committee and whom we all know we will meet in the future.
Mr. Sutcliffe: I thank my right hon. Friend for the work that his Committee and the Work and Pensions Committee did in scrutinising the original Bill. I have met the families, and today I met Families against Corporate Killing, who support the principle of the Bill and want it to be enacted. They have concerns about individual liability, but they believe we are moving in the right direction. I hope my right hon. Friend will acknowledge that.
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