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Ian Stewart: Does my hon. Friend agree that that is the core of the issue? Does not current legislation allow a large company to be fined a couple of hundred thousand pounds where its actions have led to the avoidable death of an individual? Is not it right that real justice should allow a court a spectrum of choices about what sentence should be passed?
Tony Lloyd: We have already heard that my hon. Friend and my hon. Friend the Minister regularly read each others minds. I would not go so far as to say that my hon. Friend the Member for Eccles (Ian Stewart) reads my mind
We want to ensure that the courts have a range of powers and penalties. More importantly, we want to ensure that not simply the prosecuting authorities but the authorities generallythe Health and Safety Commission, the Health and Safety Executive and othershave a range of powers that allow them to begin to look at the question of how to change the safety culture.
The reality of many of the famous disastersthe railway disasters, the Herald of Free Enterprise disasteris that in the end no one suffered any individual penalty. In individual cases, whether the individual should be so penalised may always be an arguable point. The hon. Member for Beaconsfield (Mr. Grieve) is right to say, and I agree wholeheartedly, that there are circumstances where gross negligence by an individual in the corporate setting would lead to the charge of manslaughter under existing common law. That is not a matter of dispute; it is right and proper that that should be the case.
What we are talking about here, however, is whether, as part of driving forward safety, we need to introduce not simply the Bill, but new clauses 6 and 7, and indeed new clauses 1 and 4. The profound argument is that we need exactly that change, because we have not been able to prosecute either companies or, in practice, individuals through the route of the common crime of manslaughter. The publicthis is why it is not a legal issue; it is about common senseand the families most directly affected by those tragedies demand of Parliament that we introduce something better than the current law. It is in that context that I advance my argument today.
The test of the prosecution case of corporate manslaughter has been very high; it has been gross neglect on the part of companies. However, it has also been necessary to prove that there has been individual gross neglect by directors to trigger the laying of the corporate manslaughter charge. That chain of causality is almost entirely the wrong way round. The hon. Member for Beaconsfield and I will disagree on that, but we will be able to prove under the Bill that corporate manslaughter took place as a corporate event. If the gross neglect is by the corporate body, that of itself should lead to that body appearing before the court to face the charge of corporate manslaughter. That is right and proper.
Normally for an incorporated body, we look at the sanction of a fine, although it is appropriate to look at sanctions against directors of the kind that my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) mentioned. Disqualification of directors is a kind of corporate naming and shaming, although it is more specific than naming and shaming because it will prevent them from operating as directors elsewhere. It is appealing because, as we know, the former head of Railtrack is facing no sanction whatever for the catastrophes that Railtrack led individuals into. He is cheerfully ensconced elsewhere making a lot of money as a senior corporate officer of another company. That does not make sense to an awful lot of ordinary people. The idea of disqualification is a sensible way forward for those who are not caught in the stronger trap of individual liability of a custodial variety.
Mr. Denham: My hon. Friend has just made the point that I wish to makethat there is a set of individuals for whom disqualification will probably be a greater punishment than a custodial sentence. A custodial sentence might last for months, but for someone such as a FTSE 100 director the effect of disqualification will be much more severe, so we should not dismiss it as a light punishment if we can achieve it.
Tony Lloyd: My right hon. Friend is correct: it might not be a light punishment, although even in the golf clubs of the home counties, while disqualification from being a company director might be thought quite severe, spending some months in prison might be considered an even more severe social sanction.
Our discussion highlights why the courts should have a range of options. Ironically, in some circumstancesfor former gangsters gone honest, for examplethe penalty of a custodial sentence might not be found too
troubling, but we might instead find that the Al Capone route of disqualification from serving as a director is a very effective penalty. Therefore, I support the concept that my right hon. Friend puts forward in his new clause.
There are several reasons why it is necessary to have individual liability. First among them is that, in the end, this is not about vengeance; it is about what the public expect for those who are grossly negligent in a way that leads to the death of innocent people. [Interruption.] As my hon. Friend the Member for Eccles reminds me, such cases almost always involve avoidable death; that is why we are talking about gross neglect. Those deaths are not just unfortunatethey are not deaths that just unhappily happen. They are deaths that occur because there is gross neglect on the part of people within an organisation. When that happens, there is a strong expectation that those most directly responsible should bear specific and direct cost for that, and in many cases the most appropriate direct cost is imprisonment.
Interestingly, there is probably not a huge gap between Members views on this mattereven between those of the hon. Member for Beaconsfield and those of Members who argue for custodial sentences. We are talking about what the driver should be for such custodial sentences. In fact, that is the only point of difference dividing Members involved in the debate. I should add to that statement: that is subject to what my hon. Friend the Minister says, because he is the only Member who has not yet spoken. However, without wishing to anticipate his comments, I know what his views are and his position is probably very similar to that of the hon. Member for Beaconsfieldso we have another Front-Bench conspiracy.
We are not divided on this issue over a matter of absolute principle. Every Member agrees that where there is gross neglect by individuals, corporations or non-incorporated bodiesI am anticipating future amendments and matters that we might debate laterthe public demand that certain actions be taken, and we in this Parliament ought to ensure that we provide the mechanisms whereby that demand is met.
The demand is that those responsible for such events should receive the most severe penalty that our society offers, which is imprisonment. Therefore, it is right and proper that for the most extreme cases we try to weave in the normalcy of having the most extreme penalties for those culpable of causing death by gross negligence, reckless action and so forth. Therefore, this first group of amendments drives at the very heart of what we are trying to achieve in terms of changing the culture. It also perhaps drives at the very heart of the differences between the various mechanisms by which we might achieve that.
I should say to the hon. Member for Beaconsfield that there is a difficulty with quite a lot of health and safety at work legislation. Although it was suggested earlierI think to my hon. Friend the Member for Ecclesthat section 37 might be a good thing to link with the charge of corporate manslaughter, as my hon. Friend the Member for Hendon (Mr. Dismore) pointed out, the problem with section 37 is that it cannot carry custodial sentences.
We could look into amending that, but I hope we all accept what might happen if I were to say to my hon.
Friend the Minister, Please can we begin to go through the rather tortuous parliamentary route of saying in principle that we would want to couple section 37 of the Health and Safety at Work, etc. Act 1974 to the corporate manslaughter legislation and then go on to having interdepartmental negotiations in keeping with all our joined-up government. Perhaps after I have been long retired from Parliament, I might witness our successors beginning to debate this matter seriously.
Mr. Grieve: To make the position clear, my suggestion about the link-up was simply that it would allow the entire issue to be brought before one court if there was any doubt about it. That would go some way toward meeting the need for a director who was found culpable of a health and safety at work offence to be present in court at the same time that the conviction for corporate manslaughter might be recorded against the corporation. That could have a significant impact in terms of adverse publicity, for example. However, I cannot support turning the 1974 Act into an offence that attracts imprisonment for individuals: it is about carelessness, not gross negligence, and in my view to do so would be philosophically wrong. Similarly, and coming back to the old theme, if somebody is culpable of gross negligence, let them be prosecuted and charged for manslaughter under the existing law.
The fundamental problem with the existing law is that although there are circumstances in which those responsible for the most serious acts of gross neglectthose that lead to the death of otherscan be charged under existing law, that simply does not happen in reality. I want the kind of regime with which my hon. Friend the Member for Paisley and Renfrewshire, North drew a comparison, in terms of directors financial duties. We know that directors who are grossly negligent in their handling of corporate finances can in some circumstances be brought before the courts, and if they are found guilty they can rightly end up with custodial sentences. It is not too much to demand that those responsible for an organisations health and safety culture should be in the same position.
If we are going to alter the culture, it is not enough to say that we will adopt such an approach where we can demonstrate that there is individual recklessness. There was individual recklessness in the case of the sinking of the Herald of Free Enterprise, but the recklessness of the most senior controlling minds at P&O at that time was that they took no steps whatever to create a safe and healthy working environment. They were simply indifferent to the health and safety of their own employees, the customers and the public. That is why, in the end, the existing laweven the 1974 Act and other legislationis not adequate for the job that we want it to do.
In the case of the Herald of Free Enterprise, there are extra-territoriality issues, but that is a different matter. Sticking simply to what happened, prosecution would almost certainly have been impossible under existing law. The controlling mindsthose who allowed sloppiness and who did not carewould still have escaped the full impact of the law, because they
would not have been indictable under the charge of manslaughter, or even under parts of the 1974 Act. We must change that, because it was obvious to anybody that those controlling minds were responsible for all those deaths. Because they failed to make the safety case in that company, they should have been indictable.
The way to change the health and safety culture is to tell those at the very top of such organisations that they have an inescapable health and safety duty, and that gross breach of that dutynot simply failing to demonstrate that there was a change in individual circumstances, but failing to make the safety case, thereby allowing a regime that did not prevent such deathswill lead, of itself, under corporate manslaughter legislation, to their being culpable and finding themselves before the courts.
Under the regime that new clauses 6 and 7 would put in placeI will not go into the technical nuances of the latterwe would begin to impact on the health and safety culture. As a result, we would no longer see the corporate manslaughters and deaths of the innocent that have been such a feature of British society, and such a blot on our workplaces and the places where our public travel.
Ann McKechin (Glasgow, North) (Lab): Like my hon. Friends the Members for Manchester, Central (Tony Lloyd) and for Eccles (Ian Stewart), I, too, support new clauses 6 and 7. Todays theme, both in this debate and in the earlier statement, is deterrence and what constitutes an effective deterrent. We are not talking about how we can put more people into jail, but about how we can prevent disasters from occurring and people from losing their lives. As we mentioned in Committee, and has been said today, we need an appropriate range of penalties available to the courts if we are effectively to address the issue of deterrence.
We have made much progress by introducing an offence of corporate manslaughter, or culpable homicide as it will be called in Scots law, but we need to ensure that it works on the ground. Everyone who has spoken today has referred to the complexity of many of the cases in which such incidents occur. It is in light of those complexities, the length of time that it takes to build up a prosecution case and the very difficult decisions that have to be made by prosecutorsoften on a narrow point about whether they have sufficient evidence to justify a prosecution in terms of the statutory offence or common law offencesthat we begin to realise the difficulty of ensuring that we have sufficient deterrence.
Other hon. Members have mentioned the common law offence of manslaughter. I shall address the Scottish legal position on the definition of culpable homicidea common law offencebecause it is materially different, and it is more difficult in those complex cases to mount a successful individual prosecution in common law. We need to look back at the different definitions in both the English and the Scottish courts to realise how wide the chasm is.
In the Adomako case in 1997, the leading case in English law, the former Lord Chancellor, Lord Mackay of Clashfernironically, as he is an eminent member of the Scottish Bardefined manslaughter as follows:
On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died.
However, the legal definition in Scotland is radically different, as I pointed out in Committee. The leading case is that involving Transco following the Larkhall explosion, which killed a family as a result of negligence. Originally, the prosecuting authorities brought a case under the common law offence of culpable homicide against the company. That prosecution failed and the defendants were subsequently convicted under statute. In that case, Lord Osborne commented on the common law offence of culpable homicide:
However it is quite clear to me that the two definitions are fundamentally different. The Scottish definition contains no counterpart to that...
As I would see it, there is no reliance on elements of the Scottish civil law of delict...Furthermore the Scottish formulation implies clearly, to my mind, a certain state of mind on the part of the perpetrator, that is to say, mens rea, in accordance with the basic principles of Scots criminal law.
The result is that a very high test of recklessness is applied in cases of culpable homicide in Scots law. It is therefore difficult to perceive when a company director in Scotland would be tried for an offence that would involve a custodial sentence. That would be much more difficult to achieve than in England, and that very point was made by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham). We need proper options for secondary liability if we are to provide adequate deterrence.
When my right hon. Friends Committee scrutinised the draft Bill, their examination applied, unfortunately, only to England and Wales; there has been no such detailed examination of Scots law. There has been an inquiry, instructed by the Scottish Executive, whose report concluded that as such matters applied to corporations they were reserved and, accordingly, we are now dealing with them at Westminster. However, an unsatisfactory position has resulted in that there is a much higher test in the common law offence than in the definition that applies in the Bill.
Under the Bill, there will not be equivalence in the legal position in Scotland, in terms of who perpetrates such offenceswhether individuals or a corporation. I have spoken to a number of people in the Scottish Parliament and it is clear that the weight of business on their shoulders is considerable, so a change in the law of culpable homicide in Scotland is unlikely in the short to medium term. I hope that that day will come, but it is important that the Scottish Executive take time to consider the change, and I appreciate the real burden for them of legislative proposals at present. In Committee, I referred to the Sentencing Commission. It is reporting and I hope that its members will take the opportunity to consider the discrepancy that will result from the Bill.
My hon. Friend the Member for Manchester, Central made a good point about the controlling-mind question, which in part illustrates the distinction between the definition in new clause 6 and that which applies in the
common law offence. The statutory definition does not require a controlling mind, but in common law casescertainly in Scotlandnot only gross recklessness but the controlling-mind principle must be established. That is a high test to achieve, which is why in practice few cases are taken at common law.
There is a need for an offence where the penalty is higher than simply imposing a fine, but lower than that which applies to a common law offence. There is a place for such a distinction and new clause 6 limits the level of the custodial sentence to six months. That is a serious marker of the nature of the offence, but it does not go as far as for a common law offencecertainly by a long mark in Scotland. The sanction that we are establishing by creating the offence of corporate homicide needs to be reflected in the secondary penalties that we hope the Government will consider imposing under the Bill.
We have made some progress on naming and shaming and I was pleased to hear what the Minister said today. It is important to keep a record in the companies register. Given that larger companies, in particular, are trying to attract investment and contracts, a statement of their liability and prosecution under such an offence would be a serious warning to potential investors and people who wanted to do business with them. If the circumstances of companies operations were known, many people might prefer not to do business with them.
In Committee, I mentioned a company in my constituency that was successfully convicted of the manufacture of weapons of tortureelectric batons that it sold in the middle eastbut there was no naming and shaming in the companies register. Many major household names were clients of that company and did business with it, yet the prosecution was not noted in the register. Doing that would have a salutary effect, even more so when a company had caused death by negligence.
Mr. Sutcliffe: I am mindful that we have a lot to get through, but my hon. Friend makes a key point about naming and shaming. It is important that we change the culture, and naming and shaming will go a long way towards that, certainly in the way that companies market themselves. My hon. Friends point about the company in her constituency is echoed in other cases: companies are prosecuted and convicted yet continue to make all sorts of claims about products they sell that were involved in the conviction. I give my hon. Friend a commitment that we are genuinely looking at naming and shaming.
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