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The ferry set sail from Zeebrugge inner harbour and capsized four minutes after crossing the outer mole, with the loss of 150 passengers and 38 crew members. The immediate cause of the capsize was that the ferry had set sail with her inner and outer bow doors open. The responsibility for shutting the doors lay with the assistant bosun, who had fallen asleep in his cabin,
thereby missing the Harbour Stations call and failing to shut the doors. The Chief Officer was under a duty as loading officer of the G deck to ensure that the bow doors were closed, but he interpreted this as a duty to ensure that the assistant bosun was at the controls. Subsequently, the report of the inquiry by Mr Justice Sheen into the disaster (the Sheen Report) said of the Chief Officers failure to ensure that the doors were closed that, of all the many faults which combined to lead directly or indirectly to this tragic disaster, his was the most immediate.
The Chief Officer could in theory have remained on the G deck until the doors were closed before going to his harbour station on the bridge. However, although this would have taken less than three minutes, loading officers always felt under such pressure to leave the berth immediately that this was not done.
The Master of the ferry on the day in question was responsible for the safety of the ship and those on board. The inquiry therefore found that in setting out to sea with the doors open he was responsible for the loss of the ship. The Master, however, had followed the system approved by the Senior Master, and no reference was made in the companys Ships Standing Orders to the closing of the doors. Moreover, this was not the first occasion on which the companys ships had gone to sea with doors open, and the management had not acted upon reports of the earlier incidents.
The Senior Masters functions included the function of acting as co-ordinator between all the Masters who commanded the Herald and their officers, in order to achieve uniformity in the practices adopted on board by the different crews. He failed to enforce such orders as had been issued, and also failed to issue orders relating to the closing of the bow doors on G deck. The Sheen Report found that he should have introduced a fail-safe system.
There were therefore demonstrably a number of serious failings in the way in which the company set about managing the sailing of its ships. But these were not just failures on board. The Sheen report picks up the story:
A full investigation into the circumstances of the disaster leads inexorably to the conclusion that the underlying or cardinal faults lay higher up in the Company
The Board of Directors did not appreciate their responsibility for the safe management of their ships. They did not apply their minds to the question: What orders should be given for the safety of our ships? The directors did not have any proper comprehension of what their duties were. There appears to have been a lack of thought about the way in which the Herald ought to have been organised for the Dover/Zeebrugge run. All concerned in management, from the members of the Board of Directors down to the junior superintendents, were guilty of fault in that all must be regarded as sharing responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness...The failure on the part of the shore management to give proper and clear directions was a contributory cause of the disaster.
There are two points to make. One can be made quite quickly, but it is worth dwelling on. The people who came in for the most blame were, in corporate terms, relatively junior, although the bosun
and the master are not so junior. They were operating a system that was enshrined by customer practice. It happened to be astonishingly dangerous but, nevertheless, it was enshrined by customer practice, because there was no higher safety case. The other thing that came out in the report was the pressureone could say for profit, but, in any case, to manage corporate objectives and turn the ships round with no loss of timewas so intense that the safety case was not able to be made relative to those other objectives. That was what went wrong and that was why there was not the safety culture. Those other cultures drove the safety culture out.
It is important to emphasise the Governments thoughts in terms of the corporate nature of the offence. A similar situation arose in the Hatfield case. Again, the trial judge, Mr. Justice Mackay, ruled that there was insufficient evidence for prosecutions to be pursued against individuals. However, in sentencing Balfour Beatty for breaches of health and safety legislation, he commented:
I have to say that I regard the failures of Balfour Beatty...as the worst example of sustained, industrial negligence in a high risk industry that I have seen.
Those two examples make a compelling case for saying that it is not enough to rely on individual liability to address corporate failures. There is a need for some wider form of liability for holding companies to account. The Bill addresses that problem by shifting the focus
Mr. Sutcliffe: It goes to the heart of what we are trying to achieve. The hon. Gentleman did not have the benefit of being in Committee. It is important to put on the record the driving force behind what we are trying to achieve. The Bill is about shifting the focus of corporate liability away from the acts and omissions of individuals and basing it instead on gross failures in the management and organisation of activities. In future, juries will be able to consider the overall picture of how an organisations activities were managed or organised, instead of focusing on the actions of one individual.
Mr. Dismore: I think that my hon. Friend is suggesting that if a case such as the Herald of Free Enterprise were to happen now, a successful prosecution might be more likely. I do not wish to pre-empt a later debate, but has he considered the thrust of my amendment No. 11 on jurisdiction? If the vessel in question was foreign flagged, which is frequently the case, such a prosecution would still not be possible under the Bill.
I am trying to make the important point, albeit laboriously, that the Governments motivation is to ensure that this is not just about holding individuals to account. Individual criminal liability must rest on the individual conduct or omissions of that person. As the law stands, individuals can be convicted of gross negligence manslaughter, which has a maximum sentence of life imprisonment, if, by their own acts or omissions, they cause a persons death. The new offence does not alter that. Individuals can also be convicted of a range of health and safety offences, which also carry the possibility of imprisonment for certain offences in very serious cases.
We are interested in widening the range of offences under health and safety legislation for which imprisonment is available, and would offer our support to any hon. Member who was successful in the private Members ballot and wished to take that forward. The Department for Work and Pensions has declared its intention to support an opportunity to make section 37 amendments. I hope that the discussions that my hon. Friends the Members for Manchester, Central and for
Mr. Grieve: I want to press the Minister on an important point. It would clearly be possible to prosecute a company for corporate manslaughter and at the same time for breaches of the 1974 Act, and to have a director in the dock for a breach of section 37. However, would the jury be required to deliver separate verdicts? As he will be aware, unless there is a conviction for a breach of the 1974 Act, there cannot be a breach of section 37.
This is a more than academic issue, because in the event of a conviction for corporate manslaughter the judge would not normally ask for a verdict against the company for breaches of the 1974 Act. The matter might require attention. I might be wrong, but I flag it up to the Minister.
The hon. Member for Beaconsfield (Mr. Grieve) makes a pertinent point about taking the offences at the same time. I have some sympathy with it and do not see a problem with what he suggests. He is right on the procedural point. I hope that the House acknowledges my commitment to look at this further to see what we could do procedurally to improve the situation so that we do not get into confusion. I see no problem with things being taken alongside each other.
The aim of the group of amendments is to redefine the circumstances in which individuals will be guilty of an offence in the first place, or will be liable to some sanction. In our view, new clause 1 would lower the threshold for convicting a person of an offence of homicide by a very substantial degree, as has been mentioned. Under the proposal an individual could be convicted of corporate manslaughter and sent to prison for a term of up to a life sentence on the grounds of a mere contribution to the corporate offence. The new offence is intended to be set at the high threshold of gross negligence to ensure that it is positioned as a very serious offence. It would be counter to that aim if convictions were available for very low-level offending. It would be odd generally to make it possible for another person to be convicted of the same offence at such a different and lower threshold.
The measure would mean that a person could be guilty of manslaughter on the basis of not gross negligenceor even negligencebut any contribution made. It is hard to see how a senior manager could have failed to have contributed in some way to a serious failure in the way in which his organisation was being run. The proposal runs the risk of creating guilt by association.
New clause 1 would also represent a significant extension of criminal law to allow for imprisonment in such wide circumstances. The House and the other place considered at some length during the passage of the recent Road Safety Act 2006 the proposition that the law should provide for imprisonment on the basis of negligence. We considered that such a measure would be right in those circumstances, but this proposal would go substantially beyond that.
New clause 6 appears to anticipate that objection by providing for a threshold of gross breach and a maximum penalty of six months imprisonment. I recognise the genuine efforts of my hon. Friend the Member for Eccles to find ways of extending the law in ways that the Government might be prepared to accept, but a person can already be convicted of manslaughter for the gross breach of their duty of care, and, again, could be liable to a penalty of life imprisonment. I am not convinced that the way in which the new clause is drafted would assist in bringing any new prosecutions.
New clause 4 is an attempt to tackle the problem in a different way by making provision for disqualification. This is an area in which the Government have considered the possibility of further proposals. The law already provides for a director to be disqualified when they are convicted as an individual of certain offences, including health and safety offences.
It is true that there have been relatively few disqualifications linked to health and safety convictions. The Health and Safety Executive has recognised that more could be done to remind courts of their disqualification powers. As I have said, revised guidance was issued to the executives inspectors in May, stating:
In all cases where an individual is prosecuted for an indictable offence, where the offence is in connection with the management of a company, the court should be reminded that it has the power to disqualify under section 2(1) of the Company Directors Disqualification Act 1986.
Ann McKechin: Will the Minister say what discussions his Department has had with the Scottish Executive on sentencing, particularly in relation to potential individual liability for directors? I mentioned that there is quite a distinction in Scots law and that there is a much different test on the common law offence. Have there been any discussions on that point?
Mr. Sutcliffe: I assure my hon. Friend that discussions have taken place with the Scottish Executive. Indeed, I met the Scottish Minister for Justice to discuss the Bill last week. Discussions are taking place about the likely impact in Scotland, given its different legislation.
Ian Stewart: My hon. Friend will remember that on Second Reading and in Committee we pressed him to do further thinking on disqualifications, for the reasons that he has just stated. Has that further thinking taken place? Has any progress been made?
Mr. Denham: My hon. Friend has referred to the guidance that was issued earlier this year. Will he clarify something? In order for a director to be disqualified in the way that he has highlighted, would the individual director have to be convicted of an offence, and if so, which offence would that be? Secondly, if the company was being considered, would it fall under health and safety legislation or corporate manslaughter legislation? Does he accept that for many of the relatives of victims the fact that somebody is disqualified as a consequence of the company being convicted of corporate manslaughter is key to illustrating that justice is being done? It might be possible to find a roundabout, back-door route that would lead to disqualification, but that would not be the same.
Mr. Sutcliffe: I accept what my right hon. Friend is saying, and hope to touch on that point. The thinking is being developed. I had an opportunity in my previous role in the Department of Trade and Industry to examine the Company Law Reform Bill, as was. We could have put a view about directors responsibilities and reasonableness, and of what is expected of a director, in that Billthe health and safety connection could have been made. My right hon. Friend will know that the route through the DTI is one whereby directors are disqualified on a regular basis for breaches of appropriateness in their operation of individual companies.
On 13 October at Croydon Crown court, Christopher OMahoney was disqualified from being a director of a limited company for two years under the Company Directors Disqualification Act 1986, following a conviction for gas health and safety offences. An offence must occur before a disqualification kicks in, but to respond
to the point raised by my hon. Friend the Member for Eccles, who is not in his place at the moment, we continue to consider issues relating to disqualification, which is a subject that I want to pursue during the lifetime of the Bill.
As I have tried to explain, the scope for disqualification exists, and it is based on a test of individual liability, but we have identified no practical options for new proposals in the context of corporate manslaughter. We certainly do not think that it would be possible to disqualify an individual in the way proposed under the new clause. Under the new offence, a prosecution would be brought against the relevant company, and not specific individuals. In those circumstances, it would not be legitimate or practical for the sanctions to include disqualification, as the individuals concerned would not be party to the proceedings, and so would not have had the opportunity to defend themselves.
My hon. Friend the Member for Glasgow, North (Ann McKechin), quoted the often repeated argument that it is not organisations, but people, who do things. I understand that point, but it does not follow that organisational failure can be pinned on senior individuals. If that were true, there would be no need for the Bill, as the existing law on corporate manslaughter would work. The reason why it does not work, as the Health and Safety Executive told the scrutiny Committees, is that the majority of incidents dealt with by the HSE arise from systemic failures, rather than the actions of individuals. The new offence reflects that reality.
For similar reasons, we do not accept that there should be secondary liability under the new offence, as is proposed in the amendments. As I argued in Committee, and as the Law Commission suggested in its original report, if a person satisfies the tests for secondary liability, it is likely that an individual charge of manslaughter would be possible. The Law Commission said:
We intend that no individual should be liable to prosecution for the corporate offence, even as a secondary party. Our aim is, first, that the new offences of reckless killing and killing by gross carelessness should replace the law of involuntary manslaughter for individuals; and second, that the offence of killing by gross carelessness should be adapted so as to fit the...case of a corporation whose management or organisation of its activities is one of the causes of a death.
Tony Lloyd: I am trying to give my hon. Friend a cheerful hearing, but he puzzles me a little. Earlier, he very sensibly read on to the record a description of what happened in the case of the Herald of Free Enterprise. I accept that, in that case, there is the issue of extra-territoriality to consider, as my hon. Friend the Member for Hendon (Mr. Dismore) said, but let us go beyond that. Under the Bill, the company would almost certainly have been brought before the courts, but there is almost no case for thinking that any individual would have been, even though the controlling minds failed to establish the health and safety regime that we wanted. Arguably, the Bill would not have been enough to enable us to say to those controlling minds, Get on with it, and make sure that a health and safety regime is put in place. That, for many of us, is really the dilemma posed in what the Minister says.
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