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Grand Committee

Monday, 15 January 2007.

The Committee met at half-past three of the clock

[The Deputy Chairman of Committees (Lord Tordoff) in the Chair.]

Corporate Manslaughter and Corporate Homicide Bill

(Second Day)

The Deputy Chairman of Committees (Lord Tordoff): I have, as usual, to make the statement that if there is a Division in the Chamber when we are sitting, the Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.

Clause 2 [Meaning of “relevant duty of care”]:

Lord Razzall moved Amendment No. 22:

The noble Lord said: The amendment, in my name and that of my noble friend Lord Lee of Trafford, raises an important point of principle that the Committee must address. It would allow organisations to be prosecuted for corporate manslaughter where a person is killed as a result of a gross breach of a specified range of statutory duties. The list of statutory provisions set out in proposed Schedule 1A is intended to be not exhaustive but illustrative. It would be open to noble Lords to add statutory provisions; I suspect that the Health and Safety at Work etc. Act 1974 will spring to the minds of a number of noble Lords.

At present, the offence is limited to the issue of gross negligence. If an organisation does not owe a relevant duty of care, as defined in Clause 2, to a person whom it kills, it cannot be guilty of corporate manslaughter, no matter how serious its failings. The Government have argued that it is necessary to link the offence to a serious failure to perform existing legal duties and that it would be unfair to prosecute an organisation for failing to do something that there was no legal obligation to do in the first place. For this reason, it has restricted the application of the offence to cases in which a duty of care in negligence is owed by the organisation to the deceased.

In Committee in another place, Liberal Democrat Member of Parliament Edward Davey said that it seems rather odd that, if a company breaches a statutory duty and in so doing causes a death, it would not be guilty of the offence of corporate manslaughter. That would seem odd to many. It seems that statutory duties are well understood by companies. Mr Davey suggested that this was not a question of making a new statutory duty and that we were always talking about statutory duties passed by Parliament. The Minister in another place argued against our proposal, saying that it would cause too much uncertainty if relevant duties of care covered all duties owed by statute. He said:

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That was a perfectly valid point, which is why the amendment suggests that the specific statutory duties provoking the possibility of a conviction for corporate manslaughter should be set out in the Bill, so that there can be no uncertainty about the obligations under which an organisation would be placed.

A slightly more subtle point arises from the amendment, which I am grateful to have had drawn to my attention by Liberty. Clause 2 as drafted operates as an exemption of liability, albeit one that is far from obvious to someone who is not a specialist in the law of negligence—not that in Committee we have been lacking people who are specialists in the law of negligence, although some of them are not here this afternoon. The Bill limits “relevant duty of care” to a duty that the courts have determined to exist in the context of claims for damages,

This operates as an exemption because the courts have decided that public bodies do not owe duties of care in negligence in a wide range of contexts. For example, as the law stands, no duty of care in negligence is owed by a fire brigade to respond to an emergency, and the police owe no duty of care to individual members of the public to apprehend a criminal, to investigate crime or to maintain public order. Accordingly, even if the express exemptions in the Bill were removed, it would often be impossible to prosecute a public body for the offence because no duty of care in negligence would exist.

Extending the relevant duty to those that exist under the statutory provisions listed in a schedule to the Bill would, to some extent, address this concern. Some of these statutory duties would, unlike duties under the law of negligence, apply to public bodies. This amendment would enable Parliament to decide which statutory duties imposed on public bodies should potentially give rise to liability for this offence and which should not. The basic principle that the amendment would enshrine in the legislation is that bodies can be prosecuted for the offence of corporate manslaughter not only if they are in breach of a relevant duty of care as defined in the law of negligence, but also if they are in breach of certain specified statutory duties. I beg to move.

Lord Hunt of Wirral: I look forward to hearing the response of the Minister to this group of amendments. It is helpful to have a debate about the duty of care in this legislation. I agree with the noble Lord, Lord Razzall, that we need to explore the extent to which breaches of statutory duty should or should not be included in the new offence.

Linked with Amendment No. 22 are Amendment No. 28, which would leave out subsection (3), Amendment No. 30, which would leave out subsection (5), and Amendment No. 33, which would

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leave out lines 26 to 28 on page 3. Those amendments, which are in my name and that of my noble friend Lord Henley, were tabled to press the Government to a bit more explicit—apart from the general hostility expressed in the other place—about why they are approaching this new offence in this way.

Lord Wedderburn of Charlton: Amendment No. 32, which is part of this group, illustrates a point that is, in a sense, supplementary and perhaps goes a little further than the noble Lord, Lord Razzall, went. If relevant duties of care are to cover all those types of negligence in respect of which some relevant party is killed, the precise legal foundation of the duty of care is surely no more than a lawyer’s trick. Surely the Bill should cover all types of negligence where a duty is owed by the relevant corporation in respect of the breach of which someone has been killed.

This is a small but important point in respect of what the noble Lord, Lord Razzall, said. In Clause 2(1), it is clear that the duty need not be owed to the victim because Clause 2(1)(a) requires that the duty is owed to,

and it is plainly contemplated that they may well have been injured or killed in respect of the event, whereas paragraphs (b) and (c) do not specify that the duty must be owed to anyone; there is no specification that it be owed to employees or the victim. Clause 2(1)(b) refers to a duty owed as occupier and Clause 2(1)(c) refers to a duty owed in connection with a long list of factual matters, where the duty could be owed in a variety of ways.

That brings me back to Amendment No. 32, which is tabled in my name and that of my noble friend Lady Turner, relating to duty owed under the common law of negligence or in respect of a statute. I agree with the noble Lord, Lord Razzall, that that must be covered, although the Government might consider whether new Schedule 1A, inserted by his Amendment No. 94, covers every relevant statute. It cannot matter if the duty of care in respect of which negligence has arisen is imposed on the defendant by contract, by fiduciary obligation or by virtue of office, which are the three possibilities thrown up by Amendment No. 32. We need a duty of care on whatever base in law. I take it that that is the thrust of the amendment tabled by the noble Lord, which I support.

Lord Bassam of Brighton: Before I respond to the noble Lord, Lord Razzall, I shall start with an apology and a welcome. My noble friend Lady Scotland has been called away to see her father, who is unwell. I am sure most Members of the Committee will appreciate that he lives in Dominica in the Caribbean, so the noble Baroness will not be with us today or for the rest of this week, and I suspect that she may not be here for the first part of next week. The welcome is to the noble and learned Lord, Lord Davidson, who will assist on the Bill, for which I am

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very grateful. He will do a fine and splendid job, not least because he knows a lot more about the law on these matters than I do.

The noble Lord, Lord Razzall has moved an important amendment. It is grouped with other amendments that explore the link between the new offence and duties owed in the law of negligence. The amendments tabled by the noble Lord, Lord Razzall, would extend the offence to a range of specific statutory duties. Like my colleagues in another place, I am not persuaded that this approach would add to the law. Gross negligence manslaughter, which is the starting point for this offence, has been linked to the duty of care in the law of negligence for some time. That approach was novel when the Law Commission expressed some hesitancy about it in its original report in 1996, but it has been followed by the courts since then without significant difficulty. Specific issues have arisen in the courts—for example, where a person might have a defence to a cause of action in negligence because of joint unlawful conduct—and I shall return to that shortly. Suffice it to say at this stage that issues of that nature do not represent insurmountable obstacles to relying on the common-law duty.

Our starting point is to wonder whether there is a pressing problem with this aspect of the existing offence that needs to be addressed. There needs to be clarity about where the offence will apply, and the common-law duty of care provides a long-established framework for establishing the circumstances in which an organisation ought to be liable for not taking reasonable care for the safety of others. On the other hand, statutory health and safety duties are rarely owed to specific people, or at least rarely help to identify to whom a particular obligation of care is owed. Regulations may, for example, require a train company to take certain specific safety measures, but this is a general obligation, not a duty owed to particular people. Linking the offence to obligations might be appropriate if the offence were recast along the lines suggested in the other place—an offence of causing death through the breach of health and safety legislation. But manslaughter is not just about failing to meet a particular regulatory standard. It is the gross breach of an obligation that an organisation owed to a particular person to ensure their safety.

3.45 pm

The common-law duty of care provides a well established way of doing that in a way that statutory health and safety regulations are not designed to do. Those statutory provisions flesh out the standards that organisations should have met. That is why Clause 8 requires the jury to consider the extent of breaches of health and safety legislation. However, the aim of the provisions is to impose broad duties on employers and others to consider the risks that their activities give rise to and to take adequate precautions against these. It does not assist that aim for the duties to be prescriptive about the sort of circumstances in which a prosecution ought to be brought. The general and flexible nature of these duties is a great advantage

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for their use by regulators, but as such they do not offer the clarity needed for an offence of this seriousness.

There are also inevitable problems with drawing up a proper list of relevant legislation. The noble Lord, Lord Razzall, said that it might be expanded to include statutes such as the Health and Safety at Work etc. Act or those governing product safety—those should perhaps be in the presentational list. On the other hand, statutes such as the Activity Centres (Young Persons’ Safety) Act 1995 and the Gangmasters (Licensing) Act 2004 do not appear themselves to impose statutory duties. To include the Human Rights Act in any such list would represent a novel and very wide extension of the remedies available for breaches of human rights obligations, making public bodies criminally responsible for their breach.

The noble Lord, Lord Hunt, in speaking to his Amendments Nos. 28, 30 and 33, which properly probe amendments made by the Government in another place, asked for further explanation. That is perfectly reasonable and quite proper. I would agree with the noble Lord if he said that he did not feel that there was sufficient discussion of these matters in another place. In pre-legislative scrutiny and in another place, some concern was expressed that the link with the law of negligence might mean that the offence would not apply in certain cases because a person was not liable in negligence. The example was given of the case of Perry Wacker, the Dutch lorry driver who was prosecuted for manslaughter when 58 Chinese illegal immigrants died in a container on his truck. His defence was that he and the victims were engaged in unlawful conduct and he could not be sued by them for damages. That argument was rejected in the Court of Appeal.

The case raised the question of whether the courts would be able to take a similar approach with the new offence. We were satisfied that that would be the case. The offence of manslaughter at present is based on circumstances where a duty of care is owed under the general principles of the law of negligence, as the new offence requires, and the existence of a defence of illegality did not frustrate the Wacker case. However, in a spirit of helpfulness, for which the Government are well known, we were happy to make the point clear on the face of the Bill, and moved amendments on Report to achieve that objective. These were drafted in terms of people being jointly engaged in unlawful conduct, which were the circumstances in the Wacker case.

As well as clarifying that point, the amendments also deal with circumstances where claims in the law of negligence have been replaced by provision for strict liability—for example, the liability of airlines under the Carriage by Air Act 1961. Where a duty of care would have been owed but for that statute, we would want the offence to apply where a company’s gross negligence caused a person’s death.

Similarly, the amendments make it clear that a defendant cannot seek to defeat the offence by claiming that the victim voluntarily took on the risk involved and therefore that the defendant owed him no duty of care. That might be the sensible approach

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in terms of allowing damages and it might raise, in a criminal case, questions of causation as well as an assessment of whether an organisation’s conduct was grossly negligent or not. However, we do not think that it would be right to exclude criminal liability entirely on this basis.

We discussed in Committee last week some aspects raised by the amendment tabled by the noble Lord, Lord Wedderburn, which would widen the definition of the law of negligence so that it covered duties arising from a contract, office or fiduciary obligation—the noble Lord said that this would cover all types of negligence. That is an ambitious and, in essence, laudable objective. However, there are difficulties with this. As I explained in the context of Amendment No. 13 last week, we do not accept the need to extend the offence in this way. We have given the matter some further thought, but we remain unpersuaded that there is a mischief that needs to be addressed.

The essential characteristic of the offence is a gross breach of a duty of care. As it relates to corporate liability, the offence is based on gross breaches of a duty of care owed by the corporate body rather than by individuals within it. Whether office holders or those with fiduciary obligations have been negligent will be important when assessing whether there has been a management failure in the organisation, but we do not want to make proof of any level of fault against individuals a condition of the offence. The essence of the offence should be that an organisation is in breach of a duty that it, as an organisation, owed. We are not minded, therefore, to extend the offence to duties that are owed primarily by individuals such as those that arise from offices or fiduciary obligations.

That leaves the question whether the offence should extend to gross breaches of contractual duties. Again, we are not persuaded at this stage. Negligent performance of a contract giving rise to injury may take place. However, the law of contract is primarily a way of regulating conduct between individual contracting parties, and poor performance of the contract gives rise to a contractual remedy. Should negligent performance of a contract also constitute a crime? I am afraid that I cannot offer the noble Lord much comfort on this, as I do not think that that should be the case. Where a person has been injured or killed as a result of the activities of an organisation, questions of contractual duties and duties of care in the law of negligence may overlap, as I am sure the noble Lord will accept.

I gave last week the example of a private hospital. A contract will exist between the patient and the hospital for whatever treatment is being provided, which gives rise to contractual obligations as well as common-law duties to care for the patient. Similarly, employers will owe duties to their employees in terms of their contract, but they are subject also to a common-law duty to provide a safe system of work. That arises independently of the contract and represents a general obligation on all those in the position of employ relating to safety. Obligations of that nature should underpin this offence. They have

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been the basis of gross negligence manslaughter for some time. To extend the offence to gross contractual breaches would amount to a considerable change of the law and, for that reason, we do not agree that it would be appropriate.

I hope that noble Lords have found helpful that lengthy exposition on the amendments, even if they do not entirely agree with our position on them. I have tried to set out as clearly as I can our thinking on the issue. I encourage noble Lords not to press their amendments.

Lord Lyell of Markyate: As the Minister knows, some of us have anxiety about the structure of the Bill, as the Government have been careful to limit the duties of public authorities to those relating to their position as an employer or to their position under the Occupiers’ Liability Act as occupiers of premises. That is a narrow limitation. When one looks down the list of authorities in Schedule 1, it is possible to imagine—I am sorry that I have not been more imaginative than this—that there must be a significant number of activities in which bodies such as the Department for Culture, Media and Sport, the Department for Education and Skills, the Department for Transport, the Department of Health and so on are obliged to engage that might put people at very serious risk, including that of death, if they were carried out improperly and, sadly, with gross negligence. Whereas any other body in this country would be liable to a charge of corporate manslaughter, these public authorities would not be. I can anticipate this causing considerable concern down the road.

I shall continue, in Committee and on Report, to rack my brains and hope that somebody realises my incompetence, reads our speeches—if anybody ever does—and comes forward with suggestions. I am quite sure that there is a gap here. If the Minister does not agree, or if he does not think that there is a problem, why are he and his advisers so keen to exclude this liability? If he thinks that there is a problem—the noble Lords, Lord Razzall and Lord Lee, mention a number of important statutory requirements—what is the justification for excluding a public authority? If the Minister cannot help now, perhaps he would ask those assisting him to enable him to reflect on this and help later. It is a serious point.

Lord Bassam of Brighton: The noble and learned Lord is both right and wrong. The offence is not strictly limited to employer or occupier duties for the Government, although I accept that it is in part. Most people would accept that these are difficult areas. We will deal with this point when we debate Amendments Nos. 24 and 25; I will then be happy to set out more of the Government’s argument and thinking, because that is a more appropriate place to deal with the matter. However, I acknowledge the point that the noble and learned Lord has raised.

Lord Wedderburn of Charlton: May I raise one small point which is meant to be helpful to the Government? The Minister has set out a series of

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rigid lines: the law of tort as opposed to the law of contract; the common law as opposed to statute; and the common law of negligence as opposed to various other sources. We are not here concerned with the breach of the duty; we are concerned with its source. The Minister will know as well as I do—I remember a previous Bill when this point was raised with him—that Ministers’ statements can have a serious effect on the way in which a court looks at the statute. Are the Government, for the final time, really taking this line based on a series of curious legal frontiers, or will the Minister think about it again? If he says that the Government will think about this again, it might not have that elevated status that would enable counsel to confuse the court by these lines in relying on Ministers’ statements.

Lord Bassam of Brighton: Ministers always think about things again and again; noble Lords such as the noble Lord, Lord Wedderburn, are for ever thinking up imaginative ways of asking the question. I have set out Government thinking and policy on this. It has been a developing area of law and will continue to be, over time. We think that we have the right balance. Noble Lords are entitled to take a different view, and I am sure that they will.

Lord Razzall: I have listened with interest to the Government’s position, as set out by the Minister. This is really a question of common sense. There was a problem at our previous sitting. Looking around this Room, I see all the people who have had the benefit of a legal education. I will not indulge in the sort of rudeness in which Lord Beloff used to engage on the topic of people whom he regarded as not having had the benefit of an Oxbridge education.

I am worried that I am in completely the same camp as the noble Lord, Lord Wedderburn, on this issue. On that basis, I am reflecting whether I am wrong, but I do not think that I am. Those of us in this Room who have trained as lawyers—I can count six who have done so, although there may be others who have failed to disclose it—will remember from studying the law of tort that the concept of a relevant duty of care, which we are asked to assume is the cornerstone of prosecution under the Bill, was developed in common law over a number of centuries in a series of random decisions. There was no logical brain sitting at the centre of the law that determined where a relevant duty of care emerged. It evolved totally randomly over the centuries, as the common law of this country does. In the Bill as it stands, we are being asked to accept by the Government that that random collection of relevant duty-of-care, common-law decisions should be the basis of the creation of this new criminal offence.

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