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( ) Before making an application for an order under subsection (1) the prosecution must consult such enforcement authority or authorities as it considers appropriate (having regard to the nature of the relevant breach)..
(3A) If an order made by the Secretary of State so provides in relation to a particular transfer of functions, the proceedings referred to in subsection (3) may be instituted, or (if they have already been instituted) may be continued, against
In concluding our debate on Second Reading, I spoke about how proud I was that the Bill had been introduced and, as we prepare to end our proceedings and send it to another place, I make no apology for repeating that point. It was a long time coming, but it was the product of a great deal of thought and consultation. I pay tribute to the careful consideration given to the draft Bill by the Select Committees on Home Affairs and on Work and Pensions under the chairmanship of my right hon. Friend the Member for Southampton, Itchen (Mr. Denham)I hope that he is still my right hon. Friendand my hon. Friend the Member for Bradford, North (Mr. Rooney). I pay tribute, too, to the Joint Committee on Human Rights, which is chaired by my hon. Friend the Member for Hendon (Mr. Dismore).
At the end of the process, the Government have delivered on their promise and brought the Bill to the House for debate. As I said, I am very proud of that. I want to put on record my appreciation of the warm welcome that the Bill has received and the constructive nature of debate throughout our proceedings. There is wide recognition on both sides of the House that the law of corporate manslaughter is in dire need of change. The hon. Member for Beaconsfield (Mr. Grieve) and his colleagues questioned whether a new homicide offence specific to corporations was the right way to proceed, and they suggested that a revision to the Health and Safety at Work, etc. Act 1974 would provide a neater solution. I acknowledge that that suggestion was made to test the Governments approach, but this is not about neat solutions. It is not enough, in our view, to respond to the problems in the current law by removing liability for manslaughter, albeit through adaptation to other laws. We need to make a proper and specific response to very serious failings.
Given the complex nature of organisations today, in many circumstances it is not possible to lay responsibility for the failings behind a death at the door of one individual and charge them with manslaughter. Neither is it right simply to place an organisations failings on one persons shoulders. That makes it all the more important that the law ensures that sanctions, such as a conviction for manslaughter, are available for use against companies, so that we recognise that what has happened is not a regulatory breach but homicide. That is the justice that those cases deserve. Our debates have dealt with key aspects of the offence in the Billwe have examined, too, what it does not coverand, in many ways, it leaves this House in an improved form.
At the heart of the new offences lies a highly significant shift in the way liability for manslaughter will be attached to an organisation. At present, that is bound up with the guilt of particular senior individuals. In the future, it will be about how the activities of the company were managed or organised, and whether that paid scant regard to the health and safety of employees or others. The test must also reflect the very serious nature of the offence. There will be a finding of manslaughter and it must be clear that the organisation as a whole is responsible for the offence, so the test must be one of systemic failure.
The test for the offence has been improved during the Bills consideration. The senior manager test has been removed, replaced by a wider formulation that is based on the management of the organisations activities. There remains a need to show a substantial failing at a senior level. We are satisfied that that gets the balance right. The question is whether the organisation as a whole failed, and a key factor in that must be the conduct or omissions of its senior management. It also means that senior management must take their responsibilities seriously or risk the possibility of prosecution.
I recognise that some of my hon. Friends would like me to go further in redefining the area of individual liability, which we discussed tonight, and to widen the circumstances in which individuals can be prosecuted and imprisoned. Our debate today considered that at some length and I have made the Governments position clearthat the Bill is about corporate failings and corporate liability. It deals with the fact that in many circumstances it will not be possible to lay responsibility entirely at the feet of one individual, but it ensures that there will still be a recognition that the person died as a result of a homicide, for which the corporation must take responsibility.
The new offence will apply to all companies and, as a matter of course, it will apply to a good part of the public sector too, such as local authorities and NHS bodies. The Bill takes that one step further and lifts Crown immunity, ensuring that Government Departments will also be liable. This is an historic step, but it quite properly gives rise to debate about where we should draw the line between matters for which the Government should be prosecuted in the courts and matters about the carrying out of core public functions, which are covered by independent investigations and inquiries and where the Government are accountable to Parliament for their decisions. We have made it clear tonight that we consider the line to be drawn in the right place in the Bill, but that is not to say that there are no issues on which we are prepared to consider our stance further.
Another important aspect of the application of the offence is the focus on incorporated bodies, along with the Crown, and not unincorporated bodies, such as partnerships. Again, this is a matter that we touched on today and I am prepared to give it further consideration.
There is also the important question of sanctions. The offence is rightly concerned with justice and ensuring that organisations are convicted of an appropriate offence, but we are also keen for companies to change their behaviour for the future and ensure that other deaths are not caused. There has been some
concern that fines are a blunt instrument for bringing about such a change. We have sought to acknowledge this by making improvements to the sort of issues that remedial orders will cover, allowing the court to require organisations to address issues that lie behind the relevant management failure. This is an area where Professor Macrorys review of regulatory enforcement is relevant. His report, published last week, sets out a number of suggestions for new criminal sanctions. We will have to consider the detail of these.
Mr. Charles Walker (Broxbourne) (Con): I have not followed the Bill through its various stages. Will the fines be used to compensate the losses of families where a loved onea husband or wifehas been killed by corporate failing?
Mr. Sutcliffe: Not at this point, but as the hon. Gentleman knows, the Government are working to put victims at the heart of the criminal justice system. We will look at the impact of the Bill on the families of victims, so it is a good point that the hon. Gentleman raises.
I pay tribute to the many positive contributions from Members in all parts of the House in debates on the Bill. I acknowledge the improvements in the Bill that have resulted, and I have no hesitation in commending the Bill to the House and wishing it a speedy passage in another place.
Mr. Grieve: I echo the Ministers sentiments in wishing the Bill a good passage. Although I said on Second Reading that there might be another way to approach the problem, I always accepted that the Governments approach had validity. Once I had, not altogether to my surprise, failed in Committee to persuade the Government that the Bill could undergo major restructuring to rely on the Health and Safety at Work, etc. Act 1974, I was content to try to help the Government to improve the Bill. Indeed, Conservative Members are so content.
The Minister was right to say that the Government have listened during the passage of the Bill, which undoubtedly leaves this House in an improved state as regards some important and key aspects. I appreciate that some hon. Members feel very strongly about individual liability, but I am completely of one mind with the Minister in believing that it would be an improper use of the Bill to extend it in that way. Personal liability will continue in the form of the existing manslaughter offence, and that is the correct way in which to approach the matter.
I am pleased to learn from the Minister that further consideration will be given to whether other organisations should be capable of committing the offence. I appreciate that this is a difficult area, as has been evident as we have considered the detail of the Bill, but the advantages of doing this outweigh the disadvantages. Unless we bring partnerships and unincorporated associations within the ambit of the Bill, the public will have great difficulty
in understanding how very large organisations with many hundreds of employees can somehow slip outside its operation.
We have discussed in Committee and subsequently the various exceptions in the Bill. That has been an extremely pleasant debate, on the whole, and I am sorry that in the lateness of this evening the note seemed to change somewhat when we came to discuss custody. I began to wonder whether the Home Secretary would have done well to heed my original suggestion to amend the 1974 Act, as he might have found that less difficult to swallow. The Government clearly find it very hard to handle the suggestion that there should potentially be corporate manslaughter liability on those who have custody of others within the criminal justice system and elsewhere, and they have excluded that from the Bill. I am sorry about that, because I am convinced that the Minister will have to revisit the matter when the Bill comes back from another place.
That was the one moment in the entire passage of the Bill when I felt that the Government were unable to make any coherent case. Even more worryingly, they seemed suddenly to resort to invective to try to suppress utterly rational argument led from their own Back Benches. I hope that in the quiet interval that occurs before the Bill arrives in the other place, they may be able to reconsider the matter and come at it from a new angle, because it will not go away. If we are prepared to impose this serious sanction on corporations in the private sector and, in some settings, on Government Departments, it is beyond my comprehension that the Prison Service, the police and other organisations in custodial settings should be exempt.
I am sorry that the Home Secretary is no longer in his place. He seemed to get very excited about the extent to which moving into custody would inevitably mean moving into military activities, but the two are plainly very different. Although one could argue for including training within the scope of the Bill, those who participate in military activities are facing the risk of death in active service settings where it would be absurd to start to look at the niceties of decisions in the context of corporate manslaughter. I hope that the Minister will pass that message to the Home Secretary, because it appeared to work him up greatly. A gentle word in his ear might reassure him on the point and persuade him to revisit the argument about custody, which he currently regrettably ignores.
It is unfortunate that, although we plainly had enough time in Committee, we failed to provide enough time on Report. We have raised such failings often. We needed two days on Report for such a Bill, and that must have become apparent when we realised how many amendments had been tabled. Nobody has filibustered in the debate this evening.
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