The Joint Committee on Human Rights examines Bills presented to Parliament in order to report on any significant human rights implications. With Government Bills its starting point is the statement made by the Minister under section 19 of the Human Rights Act 1998 in respect of compliance with Convention rights as defined in that Act. However, it also has regard to the provisions of other international human rights instruments to which the UK is a signatory.
The Committee publishes regular progress reports on its scrutiny of Bills, setting out any initial concerns it has about Bills it has examined and, subsequently, the Government's responses to these concerns and any further observations it may have on these responses. From time to time the Committee also publishes separate reports on individual Bills.
In this Report the Committee comments for the first time on the most significant human rights issues arising from the Corporate Manslaughter and Corporate Homicide Bill, which creates a new offence of corporate manslaughter (corporate homicide in Scotland).
The Committee notes that there is a clear obligation under Article 2 ECHR to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions, and in certain circumstances this obligation requires the State to ensure that recourse to the criminal law is possible against both private and public bodies in serious cases of unintentional deaths.
The state of the current law prevents larger private bodies and a wide range of public bodies from being prosecuted for gross negligence manslaughter. There is therefore a risk that as a result of the deficiencies in the current law the UK will be found to be in breach of the positive obligation in Article 2 in the circumstances of a particular case. In this sense there is in the Committee's view a clear obligation under Article 2 to introduce an offence of corporate manslaughter which would enable recourse to the criminal law against both private and public bodies in circumstances in which it is not possible under the present law but where such recourse would be required under Article 2. The Committee therefore welcomes the objective of the Bill as a human rights enhancing purpose, but has written to the Minister to ask for further explanation of the assertion in the Explanatory Notes that there is no obligation to introduce an offence of corporate manslaughter, given the Government's acceptance of the deficiencies in the current criminal law. (Paragraphs 1.21-1.36)
The Committee welcomes the express application of the new offence to a range of Crown bodies and the express disapplication of Crown immunity from prosecution. Both of these, in principle, are capable of enhancing the compatibility of the UK's law on corporate manslaughter with the positive requirements of Article 2 ECHR. However, it is concerned that the effect of other provisions in the Bill restricting the scope and applicability of the new offence is to give rise to a serious risk that the UK will be found to be in breach of Article 2 ECHR in the particular circumstances of a future case where the case-law of the Court requires that there be recourse to the criminal law. In particular, the effect of these restrictions, exemptions and exclusions in the Bill is to preclude the possibility of prosecution for corporate manslaughter in precisely those contexts in which the positive obligation in Article 2 is at its strongest, and may require, in a particular case, that criminal prosecutions be brought: the use of lethal force by the police or army; deaths in custody; deaths of vulnerable children who should be in care, to name just a few examples. This would mean, in situations where responsibility for the death lay with the public body for a management failure, rather than any identifiable individual, recourse to the criminal law would not be possible, which is likely to lead, in a sufficiently serious case, to the UK being found to be in breach of its positive obligation under Article 2 ECHR to put in place an efficient and effective system of judicial remedies including, in certain circumstances, recourse to the criminal law. The Committee has written to the Minister to seek further explanation of why in his view the Bill does not give rise to this risk of incompatibility. (Paragraphs 1.37-1.47).
The Committee also considers whether the various restrictions on the scope of the new offence, and exemptions and exclusions from its applicability, are incompatible with the right not be discriminated in the enjoyment of Convention rights under Article 14 ECHR in conjunction with the right to life in Article 2. In the Committee's view, Article 14 is engaged because the various restrictions, exclusions and exemptions give rise to differential treatment of individuals in analogous situations in relation to their access to the criminal law in respect of negligently caused death. The Committee notes that in its Consultation Paper on this subject issued in 2000 the Government accepted that to restrict the scope of the offence by excluding unincorporated bodies "could lead to an inconsistency of approach and these distinctions might appear arbitrary." To avoid that risk of arbitrariness, the Government at that stage proposed that the new offence should apply to "undertakings" which would include unincorporated as well as incorporated bodies. The Committee also notes that in the case-law of the European Court of Human Rights the public nature of a body's function has not been regarded as a reason for excluding criminal liability, but on the contrary has been treated as a factor which strengthens the obligation to ensure that recourse to the criminal law is available. The Committee has written to Minister asking for a more detailed explanation of the Government's justifications (assuming Article 14 to be applicable) for the Bill's differential treatment of unincorporated compared to incorporated bodies and of public bodies compared to private bodies, and for the Government's reasons for not making the offence apply to "undertakings". (Paragraphs 1.48-1.51)