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We are not satisfied that the reference to the law of conspiracy is appropriate. Under the Criminal Law Act 1977, a conspiracy involves a number of people agreeing that a course of conduct will be pursued that will involve one of them committing an offence. It is difficult to envisage the application of this test to the new offence because this offence will, uniquely, be capable of being committed only by an organisation. For the test for a conspiracy to be satisfied, it would therefore be necessary for the legal entity, such as the corporate body itself, to be a party to the agreement, which we doubt is a practical proposition.
As to linking an offence under the Bill with any civil liability for damages, we are alive to the concern
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I therefore hope—perhaps fondly—that noble Lords are to some extent persuaded that the focus we have placed in the Bill on corporate liability is the right one and that, on the basis of these remarks, my noble friend will feel able to withdraw the amendment.
On a personal note, I observe that on one occasion, for a brief period, I was an employee of senior management, two of whom are present in this Room; I refer to my noble friends Lady Turner and Lord Hoyle. On that occasion, I never felt that senior management was doing anything other than looking after my best interests.
Lord Boyd of Duncansby: I should like to ask my noble and learned friend about the position in Scotland. One difficulty that might be foreseen there is that the offence of culpable homicide has a different basis from that of manslaughter in England and Wales. It is based on gross negligence in England and Wales, whereas, in Scotland, culpable homicide is based on recklessness. Might that raise particular difficulties if we admitted the possibility of secondary liability? It is difficult to be art and part, guilty of an offence of corporate manslaughter, when the law in Scotland on individual liability is based on recklessness. A company in Scotland could be charged with corporate homicide but the individual directors might be charged with culpable homicide under the existing common law. In those circumstances, does my noble and learned friend think that there would be a difficulty in providing separately for secondary liability on the basis of the amendments? I refer in particular to those in the names of the noble Lords, Lord Razzall and Lord Lee, which would exclude Clause 16 altogether or, in the case of Amendments Nos. 90 and 91, change the wording in subsection (2) from “an individual cannot” to “an individual can”.
Lord Davidson of Glen Clova: I am obliged to my noble and learned friend Lord Boyd. He has particular experience of the complexities of culpable homicide and the question of corporate homicide in Scotland as a result of the major case, Transco, which resulted in a £15 million fine, the largest ever in the United Kingdom.
I trust that this will not bore those who are not of a Caledonian disposition, but the peculiarity of the different area—from which the culpable homicide crime arises in Scotland—and the way in which it fits in with the possibility of creating difficulties with the notion of secondary offences, raises an interesting
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Baroness Turner of Camden: I thank all noble Lords who have participated in a very interesting debate. First, I say to my noble friend that he has not dealt in his comprehensive response with the fears that unions have about the operation of this legislation when it is put into effect. As I made clear at the beginning, their concern is that the legislation, which they generally support, will not bite sufficiently for it to have the necessary effect. One of the reasons why we think pinning down individual liability is important is because we feel that this will help to change the culture of the company.
There are many companies, as we know—in the construction industry, for example, to which the noble Lord, Lord Hunt of Wirral, referred—which have a bad record in relation to accidents, including fatal accidents. If one is to change the culture of a company, it is important that it is made absolutely clear that individuals who make decisions that result in death will have to answer for that somewhere or other. The question of individual liability is very important to the public. I received a long document from an organisation representing families of workers who had been killed in industrial accidents. It is clear that it is concerned to ensure that there should be individual liability for the accidents which, in some cases, have robbed families of the breadwinner and created terrible stress for them. It is important to ensure that the issue of individual liability is made absolutely clear, tied down and made a requirement of this new legislation.
I also thank my noble friend Lady Gibson for her comments on health and safety. She has long experience of the Health and Safety Commission and she made it clear that there had not been many cases of prosecution when she was in office, and that those that had taken place were mainly in respect of small companies. As to secondary liability, I do not feel that my noble friend the Minister has adequately dealt with the strong arguments advanced by my noble friend Lord Wedderburn. We shall be looking at all that between now and Report to see whether we can come back on this issue of secondary liability.
Lord Wedderburn of Charlton: Does it also not follow from what has been said so interestingly by noble and learned Lords about Scottish law that Clause 17 cannot stand in its present state? If the clause applies only to English law, as I understand was the submission, because it refers to manslaughter by gross negligence, then something must be said in the Bill about the common law in Scotland. Either it survives or it does not. That is another problem we will have to come back to on Report.
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Baroness Turner of Camden: I thank my noble friend for that interjection. Quite frankly, as my noble and learned friend will understand, we are not at all happy about the response that we have had to our submissions this afternoon. We shall look at the amendment very carefully and may bring it back on Report with a different form of wording but the same objective. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Public policy decisions, exclusively public functions and statutory inspections]:
Lord Lee of Trafford moved Amendment No. 36:
The noble Lord said: The purpose of Amendments Nos. 36, 37 and 42 is to provide an alternative to the effect of removing Clause 3, which would result in the absolute removal of public functions exemptions, as we shall discuss later.
Amendment No. 42 would mean that bodies performing public functions would not be completely exempt but would require juries, when considering any cases, to take account of relevant factors when deciding whether there has been a gross breach and whether a body is thus potentially vulnerable to a corporate manslaughter charge. I beg to move.
Lord Henley: I thank the noble Lord, Lord Lee of Trafford, for introducing Amendments Nos. 36 and 42 and for speaking to Amendment No. 37, in the name of both the Liberal Democrats and ourselves. Our amendments and those of the noble Lord, Lord Lee, amend the Bill in the same place but would have rather different outcomes. I express my support for Amendment No. 42, which performs a very similar function to Amendment No. 53 in my name and that of my noble friend Lord Hunt. I cannot quite see eye to eye with the noble Lord on Amendment No. 36, which would remove public policy decisions. However, I will address the points it raises after speaking to the amendments in my name and that of my noble friend.
My noble friend and many other speakers in the debate on amendments two groups ago made a compelling case for the inclusion of custodial services within the remit of the Bill. The same broad principle lies behind Amendments Nos. 37 and 38. Amendment No. 37 would remove the exemption for exclusively public functions, while Amendment No. 38 would extend the duty of care in respect of exclusively public functions. I am well aware that if Amendment No. 37 were to be accepted—I imagine that that is unlikely—there would be no need for Amendment No. 38. Amendment No. 40 is the only option for the improvement of Clause 3; it would remove the exemption for statutory inspections.
The amendments are tabled very much in the spirit of those on custody, which had near-universal support. However, as the Minister in another place admitted, there is a duty of care with respect to custody. The
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The function of Clause 3 is to assert that where a duty of care exists, it will apply to the offence only to the extent set out by Clause 2. As the Bill stands, it is only the existing duties of care owed by an employer to its employee or as occupier of premises with respect to public policy decisions, exclusively public functions and statutory inspections which apply under the offence. It is important to be clear about how these clauses relate to one another. My amendments would therefore open up the possibility of challenging the law of negligence for the purposes of considering a corporate manslaughter case. Where a prosecutor wished to take a public body to court for a death caused by gross negligence in the carrying out of exclusively public functions, they would be entitled to bring a test case to establish a duty of care in order to bring proceedings under the offence.
In our ideal position, there would be no question that public functions were exempt from consideration under the Bill. Indeed, cancelling that exemption would avoid opening up the law of negligence to test cases under the corporate manslaughter Bill; Amendment No. 37 would achieve that. However, should the Government refuse to give way on that point, it is important that the Bill leaves enough scope to provide greater incentives for the improvement of public safety through the law of negligence. Amendments Nos. 38 and 40 would allow for that scope were exclusively public functions carried out so badly that they resulted in death. There should be an opportunity to analyse in court whether those actions were so grossly negligent as to merit the establishment of a duty of care for the future safety of the public.
Amendment No. 40 raises the question of who should hold responsibility should a duty of care arise. I contend that, first and foremost, the functions of a public corporation are that corporation’s responsibility. However, where that corporation acts in a grossly negligent manner and an inspectorate fails to exercise its duty to hold that corporation to account, resulting in a death, there is no reason why the inspectorate should be exempt from prosecution. I shall listen to the Minister’s response to these matters with great interest.
Lord Lyell of Markyate: I support Amendment No. 37. I have listened carefully to the arguments on Amendment No. 36 but, like my noble friend, I have a little anxiety about making public policy decisions, particularly on resources, justiciable by the courts. On the other hand, as will be clear from my earlier speeches, I cannot see why a public authority should simply be regarded as liable in cases where it owes a duty to its employees or an occupier’s liability. I will be interested to hear what the Minister says about that on behalf of the Government.
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We have had an extensive debate about custody. I listened to the noble Lord, Lord Bassam, carefully. He will not be surprised to hear that I disagreed with his arguments that these were matters of resources and public policy, when most of the Committee was convinced that it was a matter of management, organisation and failures thereof. We invite the Government to engage in argument on why public authorities should be allowed not to be liable in those circumstances.
Lord Bassam of Brighton: Does the noble and learned Lord accept that there is a relationship between policy, resources and issues of management?
Lord Lyell of Markyate: Yes, but that is not a good enough answer. Of course there is a relationship. If the Cabinet decides that limited resources shall be given to the Prison Service, and that is why it is so badly organised that a prisoner dies in his cell, a jury would not convict if Clause 3(1) were left in place but Clause 3(2) removed. The jury would conclude that it was not the fault of other parts of the Home Office or the prison governors, but a policy decision at Cabinet level. That would provide a let-out. Unsatisfactory as that might be, it would show clearly at the end of the court case where the blame lay and the Government would have to face up to that. The reality is that in the majority of cases—and in the Mubarek case that we have discussed in some detail—it would seem to have been a failure of management organisation and care to ensure that what had in theory been organised took place in practice. I see no reason why public authorities should not be held liable in those circumstances.
I hope that debate in this Committee and on the Bill will not focus solely on the Mubarek case or on the question of custody. There are much wider issues involving public authorities. There might be situations in which there was such gross negligence by those for whom public authorities were responsible that sadly one or more people died—although we hope that will not happen, of course. We want to focus on those situations, and we want the Government to justify their exemptions. They must be able to persuade this Committee and the public that there is a sound reason for limiting the degree of Crown liability. The Government have really not made very large strides with Crown immunity, which was extended, sometimes with the instance or encouragement of the Opposition, during the 18 years when I supported a Conservative Government—and it was right that it should have been. In so far as complete Crown immunity is not claimed in this Bill, that is a ground for support—but it is then clawed back far too much. I question the justification for the heavy restriction on Crown immunity brought about by Clause 3(2), and I look forward to hearing the Minister’s answer.
Lord Wedderburn of Charlton: Does the noble and learned Lord, Lord Lyell, think that there is perhaps a slight danger in removing Clause 3(2), which at least reiterates the fact that liability can exist under Clause 2(1)(a) and (b)? We have already seen that the
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Lord Lyell of Markyate: I am grateful to the noble Lord. What he says arises in part from the point that the noble and learned Lord, Lord Lloyd, raised in relation to occupier’s liability. I confess that I have not looked into this in detail, but I would certainly expect the Prison Service as of now to be liable to a prisoner if a brick fell off the wall and killed him in circumstances in which the prison authorities should reasonably have known that the wall was in disrepair. Part of the answer to the noble Lord, Lord Wedderburn, is probably that if the walls of the prison had fallen into such extreme disrepair that it amounted to gross negligence—which seems slightly unlikely, but I suppose is possible, and the noble Lord, Lord Ramsbotham, might enlighten us—the authorities could be liable for corporate manslaughter as a result of gross negligence in their breach of occupier’s liability duties. In a sense, the noble Lord has caused me to follow a slight red herring, and I very much hope that the noble and learned Lord, Lord Davidson, will not use that red herring to avoid giving answers to what I hope were the reasonably clear questions that I put.
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Lord Davidson of Glen Clova: This debate is framed by the wider question of the position of public bodies under the Bill, and I wish to consider that wider context. There are, of course, important questions about the extent to which the offence does in fact extend to public authorities and the width of the term “exclusively public functions”.
I hope that, in the earlier discussion on duties of care, the Committee was reassured that the exemption for “exclusively public functions” does not restrict the application of the offence to public authorities to their capacity as employer or occupier. However, that is not to say that the Bill does not draw clear lines to exclude a number of activities performed by public bodies.
Our approach has been informed by a number of considerations. The new offence is rooted in the need for employers to provide safety in the workplace, to ensure that employees have safe systems of work and that work sites are safe places to be. The Bill applies widely to the responsibilities that the Crown and other public sector bodies have as employer and occupier. The offence does not exempt the duties that fire and ambulance authorities have to ensure safe
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I submit that that extension of the law should not go unremarked. Even to this extent, the Bill will bring important opportunities to bereaved families to see proceedings brought against Crown bodies arising out of work-related deaths. For example, in 2001, John Wynne, a Royal Mint employee, was killed by a 6.5-tonne furnace falling from a defective crane hook. A number of failings in the Royal Mint’s management were identified: inadequate training of employees; failure to maintain equipment, despite an inspection identifying the defect and advice for a rigorous maintenance regime; unsafe systems of work; a general failure to conduct a risk assessment; and a failure to assess risk following a near-miss incident reported by employees where the furnace had fallen off its hook. I must be careful about suggesting precisely what level of fault was involved, because questions of corporate manslaughter were of course irrelevant. But it is clear that, if such circumstances arose in the future, the principle of Crown immunity would not prevent the consideration of corporate manslaughter charges under the Bill.
As employer and occupier responsibilities are covered, the exemptions primarily deal with how public bodies carry out their public responsibilities. In many circumstances, the civil courts have already considered that question and have concluded that duties of care should not be owed. They have taken into account the difficulty of courts seeking to review decisions that are rooted in matters of public policy and the risk of encouraging an overly defensive or cautious approach in those seeking to safeguard the public from risk or danger. We believe that those principles are equally applicable here.
The fact that duties of care are limited in this respect also underlines that, to a large extent, the effect of the exemptions is to make it clear in the Bill that certain activities are not covered by the offence, rather than to substantially exclude activities that would otherwise be covered. We believe that there is value in this. It ensures that the public and investigators can be clear about the application of the new offence and that they will be able to anticipate clearly what is and is not covered.
Finally, we have taken careful consideration of the position of public authorities. Public bodies frequently operate under a statutory framework, which requires them to perform particular functions. They do not have the option of entering or leaving a market, and their activities must be performed in the wider public interest.
Public bodies will also often hold special authority or perform functions that the private sector does not or cannot do on its own account. Because of that and the fact that these bodies operate on behalf of the public, they are already subject to a strong and public framework of standards, monitoring and accountability. It includes, for example, a requirement to hold independent investigations into deaths where the state is involved.
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Specific remedies also exist for the actions of public authorities, including judicial review and the Human Rights Act. That Act not only places an important set of obligations on public bodies to act in a particular way but provides remedies where those obligations are not met. More widely, Ministers are accountable to Parliament for the exercise of their functions and behind that, for wider questions of public policy and strategic management for both central and local government, lies the accountability of the ballot box.
There are, therefore, good reasons for treating public bodies differently from other organisations, and such factors have underpinned the very long-standing principle of Crown immunity. There are those who would argue that those factors still weight the balance in favour of retaining Crown immunity and that to invite the criminal law into the workings of government is to draw people into difficult territory, asking them to consider issues such as the balance of resources and the way in which public bodies discharge statutory responsibilities, which the criminal law is ill suited to deal with.
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