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11 Jan 2007 : Column GC111

Grand Committee

Thursday, 11 January 2007.

The Committee met at two o’clock.

[The Deputy Chairman of Committees (LORD GEDDES) in the Chair.]

Corporate Manslaughter and Corporate Homicide Bill

(First Day)

The Deputy Chairman of Committees (Lord Geddes): I shall not waste the Committee’s time regarding Divisions in the Chamber, since on Thursday they are most unlikely to happen.

Clause 1 [The offence]:

Lord Hunt of Wirral moved Amendment No. 1:

The noble Lord said: First, may I say how sad—but how pleased—I am to see that the Minister who will be responding today is the noble Lord, Lord Bassam? I am sad because I understand that the noble Baroness, Lady Scotland, has been taken ill. Will the noble Lord send our very best wishes to her for a speedy recovery? However, I am pleased because I know from previous experience how amenable the noble Lord is to sensible, carefully argued amendments. Therefore, we look forward to hearing his responses.

I declare my interest as set out in the register, in particular as a partner in the commercial law firm of Beachcroft LLP.

Moving Amendment No. 1 gives me the opportunity to confirm what my noble friend Lord Henley said at Second Reading—that we are very supportive of the Bill but would like to see it improved. In the other place, in the debate on 4 December, Gerry Sutcliffe, one of my parliamentary colleagues for many years and the Member for Bradford South, said this in explaining the Bill:

That is an approach with which the Opposition agree.

I have been interested in this subject for many years, and I have the honour to be president of the All-Party Group on Occupational Safety and Health. This is a piece of legislation to which we have been looking forward for some considerable time, which underpins why it is so important that we get these provisions right. We seek to insert the words in Amendment No. 1 in page 1, line 3, so that the offence applies to an organisation “including a public authority”. The Bill removes Crown immunity but, at

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the same time, includes a whole range of wide exemptions that act principally to provide effective immunity to public bodies that cause deaths of members of the public in a wide range of circumstances, however grossly negligent their conduct might be.

In its recently published report, the Joint Committee on Human Rights noted that the combined effect of provisions in the Bill restricting the definition or the scope of the application of the offence is substantially to restore the legal or de facto immunity from prosecution enjoyed by many public bodies under the present law. Therefore, on the one hand we see Crown immunity removed and on the other hand we see it back in, in a whole range of ways. In summary, the Bill will prevent a whole range of possible deaths from resulting in a prosecution, however negligent the public body involved has been. It is right also to mention deaths in prison or police custody, although we shall deal with that issue in greater detail when we come to later amendments, including Amendment No. 21.

I think it vital that we explore the extent to which public bodies should be exposed to a possible offence of corporate manslaughter. I am sure that, in some cases, it would be ludicrous to open up public bodies to such an offence; for example, there is no question of including the Armed Forces on active deployment. Yet, if the Bill remains as it is, a higher value will be placed on the duty of care in the incorporated, private sector than in the public sector in the eyes of the law. The perpetrators of a gross breach of a duty of care towards an individual in public custody would therefore face a lesser penalty than the perpetrator of such a breach in the private sector.

As I said, the Minister in the other place stated:

Therefore, I hope that, when the noble Lord replies to this debate, he will assure us that he will not shy away from what I believe is an admirable principle of extending the scope by maintaining a narrow scope in the public sector. Indeed, the draft Bill said that the Government need to be clearly accountable when management failings on their part lead to death. The exemptions in the Bill as it now is denigrate the value of that duty of care.

JUSTICE has given us some strong arguments, including the following comment:

The London Criminal Courts Solicitors’ Association has criticised the various exemptions, stating that, despite the removal of Crown immunity, many Crown bodies will not be properly held to account for deaths arising out of their management failures. The European Convention on Human Rights is an issue here, as the lack of inclusion of public bodies could amount to a breach of Article 2, which protects the right to life, and Article 13, the obligation to provide an adequate and effective remedy in respect of

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breaches of the right to life. We have also received a detailed brief from the Centre for Corporate Accountability, but I know that many of those who wish to participate in this debate will refer to a number of the arguments that have been made to us, as well as their own views.

The new and improved version of exemptions set out in Clauses 4 to 7 has confused rather than clarified the definition of “public functions”. In Standing Committee in another place, the Government stated that the new clauses were a reaction to the criticisms by the Home Affairs Committee and the Work and Pensions Committee of the vague “exclusively public functions” exemption. However, the way in which the Bill is currently set out creates confusion, as Clauses 4 to 7 describe one type of exemption while Clause 3(2) covers general exemption. It is difficult for us to follow that. I hope that the Minister will reassure us on all those points.

This group of amendments also covers unincorporated bodies. I thought of degrouping them but I hope that, as we are talking about scope, the Committee will agree that it would be helpful now to refer to the amendments relating to unincorporated bodies. These amendments are of course in the names not only of my noble friend and myself, but of the noble Lords, Lord Razzall and Lord Lee of Trafford.

Unincorporated bodies have not yet been included because, as the noble Baroness, Lady Scotland, said on Second Reading, they,

I contend that an odd legal character is no reason for exempting a substantial number of companies to which this law could apply. It is of course not true that all unincorporated bodies lack a distinct legal personality. The Law Society has put the effective point to us that partnerships and trade unions have distinct legal personalities. The change of personnel at the top may be no more frequent than in a company. We must consider that point.

Legislation such as the Disability Discrimination Act 1995 and the Health and Safety at Work etc. Act 1974 already applies to unincorporated bodies. In its evidence to the Home Affairs Committee and the Work and Pensions Committee, the Law Society said that it felt that the exemption of unincorporated bodies appears to be discriminatory and unjustifiable. I agree.

In its consultation of 2000, the Government agreed that the Bill should apply to the undertakings of all bodies. It said that it did not wish to create artificial barriers between incorporated and non-incorporated bodies. Against that background, I was therefore pleased to hear the noble Baroness say at Second Reading that, if a sensible way could be found for the Bill to take a wider position, the Government would seek to bring amendments forward. Perhaps the Minister might give us more detail, to assist us in understanding how long we must argue this point before the Government concede it.

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Amendment No. 20, in the name of my noble friend and myself, proposes proceedings for considering an offence by an unincorporated association or non-Crown body. Subsection (1) ensures that, where such a body was prosecuted, it would be under the name of that body rather than that of an individual. Subsection (2) ensures that any fine imposed on conviction would be paid out of the funds of that body and not imposed on an individual. I hope that that amendment meets with a positive response, even if the other amendments on this issue do not. We have seen a detailed brief from Liberty on this point, to which other noble Lords may want to refer. I am grateful to Liberty for having given us such detailed and helpful information.

Given the extent of the offence, one should not be trying to exclude a series of organisations within the public or private sectors from the consequences of their decisions, acts and omissions. That people should be held to account is a well recognised principle. I am concerned that the Bill has not got it right, and so I beg to move.

2.15 pm

Lord Razzall: I wish to speak to the amendments in this group standing in my name and that of my noble friend Lord Lee of Trafford. I entirely agree with the remarks of the noble Lord, Lord Hunt of Wirral, and I think that we are ad idem on all the amendments in this group. Without wishing to repeat anything that he said, perhaps I may add a couple of points to the very good explanation that he gave as to why unincorporated associations should be included within the scope of the Bill.

One point that he did not refer to, which has been drawn to our attention by one of the lobbying organisations, is the human rights issue. When these clauses were debated in another place, it was suggested that the Human Rights Committee had said that failure to include unincorporated associations could lead to our being in breach of Article 14 of the European Convention on Human Rights when applied in conjunction with the right to life in Article 2 because of the discrimination that would apply within the system whereby, if a person was killed by a company, an offence would be committed, but it would not be an offence if he was killed in identical circumstances as a result of the activities of a partnership, trade union, school or other unincorporated association. I think that that is another reason why unincorporated associations should be included within the scope of the Bill.

When this matter was debated in another place, it was suggested that there could be unfairness if an offence was committed in a two-partner operation by one partner contrary to the knowledge of the other partner. It was suggested that this would be unfair in relation to a small partnership. But, of course, in the Bill the situation is no different in the case of a small company, where two directors could be in office and one director committed some act or omission that resulted in the company being grossly negligent and the other director was not aware of it. So I do not think that that point is valid.

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I should prefer, and urge noble Lords to go for, the situation in the Home Office consultation document of 2000, as set out by the noble Lord, Lord Hunt, where the Home Office clearly took the view that it was inappropriate to distinguish between unincorporated associations and companies for the purpose of this legislation.

Lord Lyell of Markyate: I want to add a brief word in support of my noble friend Lord Hunt of Wirral. The key point in this group of amendments is whether public authorities—indeed, whether anyone in this country—should be above the law. We are talking not just about ordinary negligence but about very serious or gross negligence. I see that Dicey is quoted by Liberty, to which, like my noble friend, I am very grateful. Dicey points out:

While there may be a practical or technical reason why active service in the Armed Forces may require an exemption—although I am not certain that it does—the circumstances are so utterly different that the question of manslaughter hardly seems appropriate. However, we can look at that if necessary.

Apart from very rare exceptions, I cannot think of any reason why the law of manslaughter should not apply to every public authority. Just a few weeks ago, we made imprisonable the causing of death by careless driving—something that I strongly resisted as being wrong in principle. But we are not talking about ordinary or mere negligence; we are talking about gross negligence—a falling far below the standards that are to be expected of a reasonably careful citizen.

If the police force, the Prison Service, some public body laying on a school trip or making a provision for young people, or any public authority quite rightly providing enormously beneficial services or undertaking difficult tasks, such as keeping dangerous criminals in prison, falls so below the expected standard that its gross negligence causes death, I cannot, at the moment, see any reason in principle why it should be exempt or why it should have anything particular to fear.

I should have declared my interest as a practising member of the Bar, in a small way, and as chairman of Stowe School. If one is chairman of a large school, one has a considerable responsibility. All sorts of dangers can arise on school trips—lumps of masonry can fall off an historic monument—and they require a considerable degree of care. But why should that be different for a public authority? I do not think that public authorities will find this unduly onerous. In fact, it may give them a sensible weapon—if that is the right word—against their paymasters, who should provide proper funding for what they can reasonably be expected to do. The highest levels of government ought to have that in mind.

I shall listen with great care, and I am sure that the Minister and the noble Baroness, Lady Scotland—I, too, send her warm wishes for a quick recovery—will

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be thinking enormously carefully about this. I do not think that this is a party-political issue; Governments at all times have been a little reluctant. When we were in government, we quite rightly cut back very heavily on Crown immunity, and we were quite rightly urged to do so by the Opposition of the day. One of the duties of Parliament is to hold the Government to account on these important issues. I strongly urge a complete change of heart on this aspect. I shall listen carefully to closely reasoned argument for individual and narrow exceptions, if they can be justified, but, in principle, the law should apply to everybody equally.

Lord Wedderburn of Charlton: I am happy to follow the noble and learned Lord, Lord Lyell, because I agree with him that the law should apply equally across the board. Thinking of our journey ahead into the ocean of the Bill, I shall return to that principle, on which I hope to have his agreement, when we come to Clause 16 and the amendment to it that I have tabled.

In order to be brief, I shall not address the issue of public authorities, which is the most important of the amendments in this group—the groupings are somewhat bizarre, but that is, perhaps, the fault of some of us not objecting to them. The public authority debate is extremely important. I express no view on it at the moment, but I look forward to the Government’s case for the extraordinarily wide immunity in the Bill.

I shall address a few remarks to the problem of unincorporated associations. As the noble Lord, Lord Hunt, correctly said, under some statutes unincorporated associations can be proceeded against, and the amendment that he tabled, Amendment No. 20, in which I have a particular interest, makes provision for a way of doing that. But it is not true that unincorporated associations can be proceeded against easily in the law as it is without any statutory reference. However, that is no reason for exempting unincorporated associations from the grasp of the Bill. It is a purely technical point, sometimes made by lawyers—of which I am one—but it is surely no ground for resisting liability for what the Bill deals with.

It is, of course, possible to sue an unincorporated association on a representative action, but in practice there are grave difficulties with that. Although the leading case of Bradley Egg Farm v Clifford 1943—which I am sure is never far from the Minister’s slumbers—shows how one can do that in a civil action for negligence, it is absurd to leave the possibilities of succeeding against a guilty unincorporated association, of which there are many with great resources, to chance. Therefore, I strongly support the insertion of unincorporated associations into the list of bodies covered.

I have one point to make about Amendment No. 20, which I hope the Government will nevertheless resist. It states in subsection (1) that an unincorporated association can be sued in a sensible way and in subsection (2) it states:

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First, that raises a very difficult question because a body cannot own anything; it is unincorporated. Usually, with unincorporated bodies, persons—sometimes the chairman, the secretary or the like—hold the funds as trustees for the organisation. If that is what is meant, it should say so.

Secondly, I resist subsection (2) of Amendment No. 20 on the ground that frequently unincorporated associations do not have large funds, even funds held by trustees. The case that I am thinking of was that of a body that ran a sports ground and did not have many funds. However, where that is so, there is absolutely no reason why a body that is found liable in a similar action should not pay up if a fine is imposed. The body in that case was the management committee. If the management committee has funds that are not technically held on trust for the unincorporated members of the association, which is perfectly possible, there is no reason why the body should totally escape a fine. Therefore, I would resist the terms of subsection (2) and I hope that the Government will resist them, too. However, I welcome the amendments that introduce unincorporated associations into the Bill.

Lord Lloyd of Berwick: I take a somewhat different view on unincorporated associations. I entirely welcome the purpose behind the Bill and I congratulate the Government on extending the provisions of the Bill to cover certain public bodies. At the moment, to extend the provisions of the Bill to unincorporated associations is a bridge too far for me. What are included in unincorporated associations? We must have some idea about that before we extend such an important criminal offence to what they do. This is perhaps a silly example, but working men’s associations, ordinary West End clubs and so on are all unincorporated associations; they may be liable in respect of certain regulatory offences, but to extend to them for the first time the serious consequences of the criminal law of manslaughter would, in my view, be a mistake. Let us proceed slowly and see how this Bill works—I think that it will do a lot of good—before we extend it too far.

Lord Wedderburn of Charlton: Perhaps I can ask the noble and learned Lord a question. We have here a rather oddly constructed Cross Bench, but I am sitting with him and not against him. Does he agree that a body such as John Lewis, which is not incorporated, should be covered by the Bill? I say that with no hint that that firm would be liable for anything, but such bodies are not unknown in commerce and are not incorporated.

Lord Ramsbotham: Perhaps I may ask for enlightenment on one matter. I join all other noble Lords in expressing pleasure at the fact that Crown immunity appears to have been lifted on a number of bodies. I speak to Amendment No. 21, which relates to the inclusion of Her Majesty’s Prison Service, about which I am delighted—we shall approach corporate manslaughter as it applies to deaths in custody later. Amendment No. 27 mentions, in addition to custody, people “otherwise lawfully

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detained”, which applies to other parts of the Home Office such as the police and the Immigration Service. Why is Amendment No. 21 limited to the Prison Service? Why does it not apply to others who might be responsible for detention, if it is felt that the legislation needs to be expanded to cover other parts of the Home Office?

2.30 pm

Lord Bassam of Brighton: I thank the noble Lord, Lord Hunt, for his opening remarks, which were very kindly addressed to my noble friend Lady Scotland. I am afraid that she is unwell. Members of the Committee have a rather untried and untested substitute speaking for the Government today. I shall endeavour as best I can to deal with the various questions and points that have been raised during what I fully recognise is an important opening debate.

I very much appreciate the consensual approach that has been adopted thus far, because I think that there is a comity of view and a collective desire to reach a satisfactory outcome in this important development of the law on corporate manslaughter. I think that we are all heading in a similar direction of travel and that we are in essence finessing the detail to make the measures as powerfully applicable as we constructively can. That is a good way of approaching something with which we have been wrestling for some years.

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