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We are not talking about minor offences, but about the death of individuals. In that context, somebody in a corporation should be responsible at a senior level. If they were, there would be a different boardroom outlook, and health and safety would be even more relevant to the workings of a corporation. In a large corporation, ignoring health and safety is not good for those at boardroom level, but does not really affect them. Making an individual responsible would concentrate minds in the boardroom.
Without going over all that my noble friend Lady Turner said, if we are to put teeth into the measure, individuals at senior level must be responsible for health and safety. I look forward to the Minister’s reply; this is an important matter that goes to the heart of the Bill.
Lord Wedderburn of Charlton: Amendment No. 92 is in this group, and I ask noble Lords to look at it because it takes a very conservative approach—an unusual situation for me—to the problem with which we are confronted. I should point out an error in the printing, which was probably my fault. Subsection (2) of Amendment No. 92 should read “art and part”, rather than “art or part”. I apologise to all Scottish lawyers for my mistake. Although my origins lie there, if it was my fault, my hand is obviously not yet skilled enough to affect my language. I put no emphasis on the drafting. Obviously, there may be a need for other subsections as the Government prefer, but the spirit of Amendment No. 92 is plain.
I say at the outset that I do not want to argue the minutiae. What I am arguing for is something that has different contours of legal liability that are sometimes less wide and occasionally as wide or wider than Section 37 of the Health and Safety at Work etc. Act. I do not want to go through employers’ liability, but that is my position on Section 37.
I tabled the amendment because I take as my text what the noble and learned Lord, Lord Lyell, said early in our debates last week. He quoted Dicey and said:
“With us, every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen”.—[Official Report, 11/01/07; col. GC 115.]
I take it that that text from Dicey is roughly the same sort of approach that the noble Lord, Lord Hunt, today called a principle of even-handedness. The reason
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“Individuals who assist or encourage the commission of an offence can also be convicted of an offence where they have aided, abetted, counselled or procured it or, in Scotland, are guilty of art and part. This is known as secondary liability”.
Indeed it is. The notes go on to say that in this Bill such secondary liability is expressly excluded. That is why my Amendment No. 92, like the previous amendments, needs to do something to Clause 16, preferably to omit it. No reason has ever been given for excluding secondary criminal liability under this Bill. Absolutely no justification has ever been advanced for it. It is simply stated. That is it.
Lord Clinton-Davis: Does the noble Lord agree—I am sure that he does—that the Joint Committee specifically recommended exactly what he has said?
Lord Wedderburn of Charlton: I said that the Government have not advanced a satisfactory justification and I do not think that any committee has done so either.
I want to make quite clear at the outset that this secondary level of liability involves complex considerations. The burden of proof is not on me to show that there could be an aiding and abetting of what the Bill primarily imposes on organisations; namely, what used to be called corporate killing and is now corporate manslaughter. The amendment states that the ordinary rules should apply, and there is no good argument whereby they should not, either from Section 37 or anywhere else. If a senior executive or a board of directors knows that an enterprise is suffused with a culture of negligence, the breaches of duty might be on the part of particular members of senior management. That would bring about a conviction for corporate manslaughter. However, a case of abetting may clearly arise. I see no reason why that normal rule of law should not apply. Why on earth exclude the rule of law as it applies to every other citizen? There is a very heavy responsibility on those who wish to avoid the normal rule of law in respect of a criminal offence.
Lord Lloyd of Berwick: I am following the argument of the noble Lord very closely, but I am unable to understand how the Explanatory Note to Clause 16 fits in with what is in the Bill. Can he explain that?
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Lord Wedderburn of Charlton: All that I have said—
Lord Lloyd of Berwick: I am not opposing anything that the noble Lord is saying. I merely wish to understand the Explanatory Note in light of the Bill.
Lord Wedderburn of Charlton: Why Clause 16 is in the Bill is for others to explain. I am saying that it cannot remain there if my amendment is accepted. That is why I am speaking in the same debate on whether Clause 16 shall stand part of the Bill.
Mine is a minimal amendment. I have no wish to introduce what has been called a “party-political approach”, but the Government’s election manifesto pledged to introduce what they have put forward as corporate manslaughter; namely, that if all the conditions imposed by Clauses 1 and 2 are met, the primary liability in criminal responsibility should rest with the corporation or a company in the average case. The Government naturally did not put in their manifesto—no one in their right mind would think of doing so—“Ah, around the rules that normally apply to every citizen about aiding and abetting, we give you no promise whatever”. It would be quite absurd to do so, yet the proposed provisions would apply to what would normally be managers or directors—let us call a spade a spade: it would apply to directors, although they need not be directors. This is where the amendment differs from Amendment No. 35, which names directors and so on. I am not concerned with who has abetted the crime; I am concerned with the normal rule of law applying to them.
The Bill does not create primary liability in an individual. Noble Lords will see that proposed subsection (1) of Amendment No. 92 reaffirms that principle, whatever the arguments may be about extending the ambit of what the Bill sets out to do. They will see also that proposed subsection (2) is contrary to Clause 16 because it applies the normal rules of law to acts of aiding and abetting. It is perfectly possible that such a secondary liability would arise. Some noble Lords will think that it will be very rare; others will think that it will be pretty rare. I do not think that it will be the normal case. However, when the legislature passes such a Bill as this, it must bear in mind that such a liability could arise.
6.15 pm
I am sure that noble Lords are eager and avid readers of the Sunday Times and the Financial Times. Today, they will have noticed that next week, or possibly even earlier, a report on the liabilities and failures of one of our great corporations, BP, is to appear in the United States. A committee headed by Mr Baker has gone through its record and has looked at the dreadful explosion in its operation in Texas and at the corrosion and leaks in the Alaska oil pipeline. Today’s Financial Times states that those who have seen a draft of the report say that no one escapes blame, including everyone on the board. If that is so, it is quite extraordinary, but BP is a huge organisation
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It does not matter what noble Lords think of that. It is merely current affairs on the matter that have sparked a lot of interest. I do not have to prove that anyone would aid, abet, counsel or procure this offence; I say only that that is the ordinary rule of law. I know of no exception in regard to a major offence. It is far wider than any trade union immunity that ever existed. The immunity from civil liability granted for trade unions in 1906 and destroyed by the noble Lord, Lord Tebbit, in his 1982 legislation was minuscule compared with this vast immunity for those who aid or abet this crime.
I shall mention two details about Amendment No. 92. Noble Lords who have looked at it will have seen that subsection (3) maintains the law relating to conspiracy. I say nothing about that. Those whom I have discussed it with have never raised objections. If there is no valid objection, that could go out, but it seems worth saying expressly. The same applies to subsection (4), which relates to civil law. There is a saying that has been accepted by noble and learned Law Lords in many cases. Paragraph 24/88 of the 18th edition of Clerk and Linsell on Torts states:
“There exists a tort of uncertain ambit which consists in one person using unlawful means with the object and effect of causing damage to another”.
In litigation, the question of whether a particular breach of statute is an unlawful means within that general principle is often problematical. It is always worth saying so in legislation so as not to waste the time and money of litigants, judges and the courts. I suggest to the Government that they should immediately accept this amendment because subsection (1) accepts that their manifesto promise was no more or less than that a corporation or organisation would suffer primary liability for corporate manslaughter. Proposed subsection (2) maintains the normal rule of law and does not accept the immunity that the Government have put in the Bill. The rest are details.
As a footnote, I shall make a comment which is not in my notes. Having ditched the people in custody in the previous group of amendments, surely the Government will not ditch those who suffer from aiding and abetting as well as a primary liability in this group. The Home Office does not deserve that; it is in bad enough trouble as it is. For goodness’ sake, they are in a hole, so will the Government please stop digging?
Lord Clinton-Davis: I argued at Second Reading for a different sort of liability attaching to directors, but my noble friend is probably right in referring to Amendment No. 92. The Minister ran out of time; he did not reply at all to the points that were raised. I excuse him for that because I know exactly what happens to Ministers when they run out of time, but
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I repeat my arguments, which may be redundant, that directors or senior managers should be held responsible for their actions or inactions. Does the Minister seek to resile from that point? I have nothing to add to the very powerful case that has been advanced by my noble friend Lord Wedderburn. After the points that he raised and the powerful argument that he made, which concerns people on all sides of the Committee, it is incumbent on the Minister to reply, and I have every confidence that he will do so.
Baroness Gibson of Market Rasen: I support Amendments Nos. 34 and 35, which are in the names of my noble friends Lady Turner of Camden and Lord Hoyle. I declare an interest in that I was for six years a commissioner on the Health and Safety Commission until I entered this House in 2000. During those years and since, very few cases have been taken against individuals who have had responsibility in organisations that breached laws and caused deaths. I believe firmly, as do my noble friends who tabled the amendments, that with individual senior management comes individual responsibility.
Before the Minister tells me so, I know that the Health and Safety Commission and Health and Safety Executive do not agree with the amendments but, in this instance, they are wrong. If the amendments were included, overall that would strengthen health and safety legislation in this country.
Lord Henley: After the near unanimity on the previous amendment, the Minister may be grateful that we on these Benches cannot offer any support for the amendments of the noble Baroness, Lady Turner. I do not know whether the Government want that support at this point, but I offer it to them for what it is worth.
As the Minister will be aware, we made it clear at Second Reading that we support the creation of a corporate manslaughter offence but we do not support the idea, expressed in these amendments, of adding layers to the existing manslaughter offence, which would undermine the central principle of the Bill. Therefore, we shall not offer any support to the noble Baroness should she wish to return to the amendments at a later stage.
Lord Lloyd of Berwick: I am uncertain whether to support this amendment or not. Paragraph 54 of the Explanatory Notes seems to suggest that the intention of the Government was at some stage not to include secondary liability, yet here we find it excluded. As a matter of general principle, I entirely agree with the noble Lord, Lord Wedderburn, that, in the ordinary way, any offence can be committed by the primary offender but also by a secondary. I see no reason why secondary liability should be excluded.
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The Advocate-General for Scotland (Lord Davidson of Glen Clova): The amendments in this group plainly address the position of individuals. The Government certainly share the objective of wanting to ensure that health and safety is given the priority it requires and deserves at all levels within a company. Health and safety management must be led from the top, and directors and other senior managers must give a clear and positive lead.
However, the aim of the Bill is to find a new way of defining the circumstances in which a corporation, as distinct from individuals, should be guilty of an offence. Our focus is on corporate failures which, by their very nature, are unlikely to be the responsibility of any single individual. Where individuals are personally responsible for a death, or related health and safety failings, the law already sets out a framework for holding them to account through gross negligence manslaughter and regulatory offences.
There exists a problem, however, where failings are more widespread in an organisation because the law of manslaughter hinges corporate liability on personal liability. The test in the existing law—the “directing mind” test—works well enough in small organisations, as many have recognised, where a relatively short chain of command can make it easier to establish that a person at the top of an organisation has been acting grossly negligently. Corporate liability can then follow. However, that does not reflect the reality in more complex organisations, where failures in the chain of management are rarely solely attributable to the acts or omissions of specific individuals. That is why the only successful corporate manslaughter prosecutions have been brought against small companies, which is the problem the Bill seeks to address.
The issue is starkly illustrated by the circumstances of the Hatfield crash. In the subsequent prosecution of individual managers, either the trial judge ruled that there was insufficient evidence or acquittals were returned. Yet, in sentencing Balfour Beatty and Network Rail, the judge commented:
“I have to say that I regard the failures of Balfour Beatty ... as one of the worst examples of sustained, industrial negligence in a high risk industry that I have ever seen”.
That starkly illustrates the need to move to a wider basis for testing corporate accountability for manslaughter.
The Bill’s focus is therefore on the question of corporate liability for corporate failure. It introduces a new way of assessing gross negligence within an organisation by taking the focus away from the conduct of individuals and placing it on gross failings in the overall management of activities within the organisation. As described at Second Reading, the test moves away from who managed the company, to how its activities were being managed. Yet this approach is not suitable for holding individuals to account; a point acknowledged by the Law Commission when they examined the issue. Its intention, with which we agree, was to create a distinct offence for organisations, which would stand in parallel to manslaughter, adapting it to their distinct circumstances. It was not intended that this
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The argument is made that organisations do not do things, people do—fair enough—but it does not follow that organisational failures can be pinned on specific senior individuals. Having established that corporate liability will not be hinged on the acts of individuals, there are difficulties with trying to turn that situation around and establish that individuals should be liable for the newly defined corporate failure. It certainly would not be feasible to impose sanctions such as imprisonment on individuals solely as a result of the corporate conviction. Individual criminal liability must rest on the individual conduct or admissions of that person. As the law stands, individuals can already be prosecuted for manslaughter where their gross negligence causes a death.
Health and safety law also provides sanctions against individuals whose conduct has contributed to health and safety failures. The new offence does not alter those provisions, a point to which I shall return.
6.30 pm
The amendments offer two variants for addressing individual liability. The first, through the amendment tabled by my noble friend Lady Turner, is to establish a distinct offence that can be committed by an individual. Apart from the general points I have made about individual liability, there are a number of reservations about this proposal. In particular, if a person is guilty of a gross breach of a duty of care that has caused a person’s death, they can already be prosecuted for manslaughter and will then be liable to imprisonment for life, a much higher penalty than the maximum of six months proposed by the amendment. I am not therefore clear that the new offence would add a significant new liability or deterrent to that provided by the law.
Baroness Gibson of Market Rasen: Can my noble and learned friend say how many cases have been taken over the past six years under the health and safety legislation?
Lord Davidson of Glen Clova: I regret that I do not have that figure to hand. Certainly more have been taken than have resulted in a conviction. I fully recognise the point—
Lord Hoyle: If my noble and learned friend does not have the information to hand, could he let us have it?
Lord Davidson of Glen Clova: Certainly that shall be done.
Lord Hunt of Wirral: It may assist the Minister to know that over the past 10 years, there have been only seven successful prosecutions for corporate manslaughter. Those were all of small companies, where it is easier to satisfy the current law. As I understand it, the noble Baroness, Lady Scotland,
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Lord Davidson of Glen Clova: I am certainly in no position to gainsay those statistics. I will adhere to the undertaking to get the information that has been requested.
Other amendments propose to address this issue through secondary liability, but there are distinct problems. For example, there is a proposal to introduce a new basis on which a person could be guilty of manslaughter through gross negligence. We are not persuaded that this is appropriate. If a person has been grossly negligent and, as a result, has been responsible for someone’s death, they should be prosecuted for the existing offence, not on a secondary basis for the corporate offence. Perhaps more importantly, we do not think that providing secondary liability for the new offence would cover a level of criminal behaviour that is distinct from the culpability required for a conviction for manslaughter.
To show that an individual aided, abetted, counselled or procured an offence, it would generally be necessary to show that the accessory had a similar state of mind as the main offender, or at least knew or intended that the offence would be committed. In the context of corporate manslaughter, this would mean that an individual would need to be aware of the picture of failing in the organisation, at least contemplate it being grossly negligent, and act in a way that supported or sought to bring that about. But in those circumstances, it is likely that an individual charge of manslaughter would be possible.
We do not think that by allowing secondary liability for the new offence we would achieve any significant extension of individual liability, but would create a new level of complexity. As well as assessing individual liability in terms of existing criminal offences, such as manslaughter and under health and safety law, the police and prosecution would need to explore any potential differences under the provisions relating to secondary liability. We are not persuaded that that would be a useful exercise.
Finally, as regards Amendment No. 92 in the name of the noble Lord, Lord Wedderburn, the first two subsections touch on the central issue of secondary liability, which I have already sought to address. I will therefore confine my remarks to subsections (3) and (4) of the proposed replacement for Clause 16.
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