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Currently, the jury must,

in a corporate manslaughter case—

a gross failure to carry out a duty of care. First, “attitudes” does not give a jury any more to look at than is already covered in the other factors listed. I go further and say that there are circumstances where that word possibly could be pernicious. Corporate manslaughter cases are obviously going to be highly emotional and can involve a huge loss of life, so there is a real need for the jury to be objective in its judgment of a case. While attitudes may have been the reason for bad policies and systems, and even more so for not meeting what is considered in a company to be accepted practice—the acceptance of which denotes its attitude—the consideration of attitudes as a first principle is not sufficiently objective.

My noble friend will speak to his Amendment No. 78A in due course, which adds “motives”, and I look forward to hearing his rationale. To me it seems to go against the grain of our amendment and I do not think I will be able to support him. I hope the Minister will consider the points made on Amendment No. 78 and I look forward to hearing his response. I beg to move.

Lord James of Blackheath: I apologise for two out of three. I have been critical of the guidelines for juries since we first came to this debate on the grounds that they breach one of the cardinal

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principles laid down by the great historian Burckhardt, that it is necessary for anyone in possession of the facts to understand them only in the context of the spirit of the circumstances in which they took place. I do not believe that the definitions of guidelines to be offered to juries will do anything to recreate the special circumstances that will have dictated what led to the criminal offence being alleged at the time of the jury’s consideration.

I have already commented that there are some potentially quite sinister motives that could significantly colour a jury’s attitude to the question of guilt. I have mentioned particularly the avoidance of liability under a liquidated damages clause and the need to keep a company solvent by avoiding a penalty payment. To me that would seem to be a very significant fact. I do not think it is an issue of attitude, but a completely financially-motivated objective. Further, we should not even think that this is an issue which is divorced from the interests of individual directors. If you know that your company is going to go bankrupt if you meet a liability, you will lose your salary, your expectation of bonuses and whatever you might have invested in the company. You could have a very strong personal incentive for effectively commissioning an illegal act here. Motive is inseparable from an assessment of guilt in this case, and I propose the inclusion of “motive”. I do not think it conflicts with the elimination of “attitude”.

Lord Lyell of Markyate: I ask the Minister to think very carefully about the word “attitude”. My noble friend Lord Henley has a point when he says that it might be more prejudicial than probative, which is something that courts are extremely careful to consider. I ask the Minister to reflect very carefully on this. I am rather cautious about the addition of the word “motive”. Again, I will be interested to hear what the Minister thinks on reflection.

Lord Bassam of Brighton: Despite what the noble Lord, Lord James, says, Clause 8 is designed to assist jurors in assessing whether a breach was gross. Under the current law of gross negligence manslaughter, juries are asked whether, having regard to the risk of death involved, the defendant’s conduct was so bad in all the circumstances that it should be characterised as gross negligence and therefore as a crime. This test has attracted some criticism as having a degree of circularity and not giving much assistance to juries in determining whether a breach should be considered as gross. With an offence based on a failure to take proper care for the safety of another person, it will always be difficult to describe exactly how such a failure will be manifest. However, we think that we can provide some further clarity on the test. This will help jurors and, in fairness, give potential defendants guidance on what it is that they must do to avoid liability.

6.45 pm

Clauses 8(1) and (2) require jurors to consider whether there were any failures to comply with health and safety legislation related to the breach and, if so,

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how serious they were and how much of a risk of death they posed. This will explicitly put the alleged breach in the context of the organisation’s obligations under health and safety legislation. So any health and safety failures related to how the activity in question was managed would be relevant, including, for example, high-level failures to assess risks, as required under the Management of Health and Safety at Work Regulations 1999, and specific requirements for carrying out the activity, such as wearing appropriate protective clothing. Jurors will consider how much of a risk of death the failures posed. Therefore, it will not be an abstract question of whether the organisation should have been doing something, but, in the circumstances, how much of a risk of death was posed by that failure.

Clause 8(3), with which Amendments Nos. 78 and 78A deal, points jurors to whether the organisation had a corporate culture that encouraged or led to the tolerance of the health and safety breach. In adding this concept, I confess that we have borrowed largely from the Australian concept of corporate culture and are following the recommendation of the pre-legislative scrutiny committee. We believe that by directing juries to consider whether the evidence shows a corporate culture existed that encouraged or tolerated health and safety failures, juries will be aided in judging whether the breach was truly corporate. The provision will also reassure organisations that promote good health and safety practices, but will act as a warning to organisations that have paper systems in place but which in practice disregard them.

I recognise that Amendment No. 78, tabled by the noble Lords, Lord Hunt and Lord Henley, is intended to address the concern that organisations cannot control the attitude of every member of staff. However, I offer the reassurance that the attitude of individual members of staff would be considered in the overall context of the organisation’s approach to health and safety. The concept is intended to emphasise the corporate nature of the offending, rather than the reverse. The concept of attitudes in the organisation is relevant to the question whether there was a corporate culture that allowed the gross breach to occur. It is the responsibility of organisations to ensure that staff know that safety is important and carry out their duties with that very much in mind.

A pertinent example comes from the remarks of the chair of the US Chemical Safety Board in connection with the explosion in the BP oil refinery. This week on Radio 4, she said that in the company there had been a,

Similarly, on the sinking of the “Herald of Free Enterprise”, Lord Justice Sheen said in his report that the organisation was,

It is important that juries take that sort of attitude into account when considering whether the breach of the duty of care by the organisation had been gross.

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The noble Lord, Lord James, suggested that it was desirable to make motive another consideration for the jury. We would be concerned that the jury might over-emphasise the need to find one. We are not convinced that a motive, for example, to save money is relevant to whether there had been a breach of a duty of care. An organisation may, through utter disregard, fail to consider what actions need to be taken for an activity to be carried out safely. Interestingly, in the draft Bill we included a profit motive in the list of factors for juries to consider. This was heavily criticised by the pre-legislative scrutiny committee. At that point, the Government were persuaded that the Bill should not refer to motives. One of the key reasons was that the public sector would rarely be motivated by profits. Conversely, it could be said that commercial organisations are only motivated by profit. I therefore come down very much on the side of the noble Lord, Lord Henley, and the noble and learned Lord, Lord Lyell, on the subject of motive. Their summation is probably right. I certainly understand the debate, and, as I said at an earlier stage, this was, in a slightly different form, given careful consideration. I hope that I have reassured the noble Lord, Lord Henley, and I trust that I have answered the point made by the noble Lord, Lord James.

Lord Henley: I thank the noble Lord for that response. I am not sure that we can take the matter much further. He took us very carefully through most of Clause 8, although he did not underline the fact that subsection (4) states:

I suspect that whether we put in or take out “attitudes” and whether we leave in or take out “motives” makes very little difference. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 78A not moved.]

Lord Lee of Trafford moved Amendment No. 79:

“( ) have regard to whether the organisation had appointed one of its directors as a dedicated health and safety director.”

The noble Lord said: In view of the comments made by the noble Lord, Lord Wedderburn, on the Financial Times, I have to declare an interest as one who writes a monthly column for that very fine paper and has done so for the past six years. As I hope to continue to do so, I could be at serious risk if I did not come out in support of the paper. So I put that on the record.

Clause 8 relates to the factors for the jury to consider when deliberating whether there has been a gross breach. Through the Bill, we hope to make a contribution to changing the attitude to health and safety in the body corporate. No one can be happy with the statistics for 2005-06, in which 212 workers and 384 members of the public were killed following a workplace incident. Our contention in the amendment is that the need to designate one director

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to be responsible for health and safety issues would help to focus the board of directors and senior management on health and safety.

No one is suggesting that this individual could or should be held solely responsible for health and safety. Clearly, that would be unreasonable and unfair. Much could depend, say, on the backing of the board and chief executive, and on the necessary resources being made available to the named individual. However, the designation of such an individual might well be viewed in a positive and favourable light by the jury, as well as having an obvious practical benefit. I am very pleased that the Association of Personal Injury Lawyers supports the designation of a named individual. I beg to move.

Lord Hunt of Wirral: This is an eminently sensible amendment. I have no hesitation in supporting it. It would require a jury to take into account whether an organisation charged with corporate manslaughter had taken its health and safety responsibilities sufficiently seriously to have appointed someone at board level to oversee them directly.

The Bill is as much about prevention as about cure, so this kind of amendment could well be beneficial. I therefore support the words of the noble Lord, Lord Lee.

Lord Bassam of Brighton: We have already had some general discussion about how we see this clause working. Subsection (3) reinforces the fact that the breach was organisational. Amendments Nos. 79 and 79A both deal with what juries should consider in assessing the corporate nature of the offending. Both in essence—

Lord Hunt of Wirral: The Minister rose so quickly, he did not give my noble friend Lord James an opportunity to speak.

Lord Bassam of Brighton: I apologise.

Lord James of Blackheath: The Minister probably thought he had had enough of me for one afternoon. Amendment No. 79A is a reflection of my continuing concern on two counts arising from the debate over the past three sittings. First, I remain concerned that we still have not clearly, to my satisfaction, pinned down the right level of responsibility that should apply in a considerably wide range of cases. That remains a big issue for me. Secondly, I am concerned that there is a lack of clarity in the Bill about whether there is mitigation as a result of the incompetence of a lower-level employee who has caused injury to himself or to others by failing to follow laid-down rules.

I suggested this wording as a means of clarifying once and for all, either way, whether that mitigation is a viable argument on challenge. The example I gave several days ago of death on a race course arising from allowing a fence to be jumped when it involved riding straight into a setting sun would involve the

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groundsmen, the clerk, the chief executive and the chairman of the course, and, beyond them, the British Horseracing Authority. There is no clarity in any of our discussions about which level would be held accountable in that case for a death that has occurred. I seek only clarity here. I am not nailing my colours to the mast and stating that it is or is not mitigation; I merely seek clarity on how the Act would apply in operational terms.

Lord Bassam of Brighton: I shall try to provide some clarity. I will not repeat what I started to say. In essence, we are asking a jury to think about the role that senior management have played in the breach. I think that picks up on the point made by the noble Lord, Lord James, but we shall see. To some extent, Amendment No. 79 could be seen as helpful. It is certainly the Government’s view that health and safety should be managed from the boardroom down, and the Health and Safety Commission recommends that boards appoint one of their number to be the health and safety director. Whether or not an organisation has appointed a health and safety director could be indicative of the organisation’s overall approach to health and safety matters.

However, there are two reasons why we should be reluctant to amend the Bill in this way. First, Clause 8(4) makes it explicit that jurors may have regard to any other factors that they consider relevant, which is a point that the noble Lord, Lord Henley, alerted us to earlier. This is important, as it would not be possible to list all the factors that might be relevant to a gross breach of a duty of care. Of course, it follows the current law where jurors consider all the circumstances of the breach. So whether or not the organisation had appointed a director responsible for health and safety could form part of the jury’s consideration, because it could be indicative, without the need to have this in the Bill.

Secondly, and perhaps more importantly, there is a risk that if an organisation had appointed a director for health and safety but that this was essentially lip service to health and safety, a defendant could point to that very fact and discourage jurors from finding a gross breach. The defence could probably argue, “Well, look, we appointed our director. It is their responsibility. It tells you that the culture in the organisation is right, so we do not think that it would be right for us to be convicted”. It would be unwise to run that risk, and I invite the noble Lord to think about that very carefully.

The amendment spoken to by the noble Lord, Lord James, would point juries to consider the extent to which junior employees were acting negligently or outside the instructions of senior management. Juries will already be able to consider that, but this amendment would further reassure organisations that corporate manslaughter charges would not be based on the failures of individuals who were relatively junior in the organisation. Although we agree that organisations should not be found guilty in such circumstances, we believe that subsection (3) already makes this sufficiently clear, in particular when considered alongside Clause 1.

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Noble Lords will recall that Clause 1 ensures that senior management must have played a substantial role in the gross breach in the duty of care. The noble Lord, Lord James, may tell me that that does not provide him with sufficient clarity, and we may have to try again. I hope that the explanation that I have provided, and the Bill, do not prevent jurors taking into account the additional factors raised by the noble Lords, Lord Lee and Lord James, in seeking clarity. There are real dangers in these amendments and I have made those fairly clear. I invite the noble Lord to withdraw his amendment.

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Lord James of Blackheath: Does the Minster agree that the greatest enemy to the effective operation of this Bill would be inconsistency in the treatment of cases, which would be taken to have created different levels of mitigation or responsibility for boards? There must be a clear line that consistently guides the challenge to one level. I am seeking a better clarification of where that level is.

Lord Lyell of Markyate: I would ask the Minister to go on reflecting on this. I note his comment that the health and safety guidance suggests that you do appoint a director, and it might be worthwhile to highlight that in the Bill. The real question about the amendment proposed by my noble friend Lord James is probably whether the senior management had done their best to ensure that the lower echelons of the organisation had taken the trouble to avoid the kind of mistake which had taken place. If the mistake has taken place at a lower level, as it often will have done, as shown in some of the railway cases, the question arises whether, first, the senior management had arranged a proper system and, secondly, whether they had monitored it.

The Minister’s answer is very helpful, but I am going to tease it for one moment, because part of his argument might have gone so far as to simply say, “The jury shall have regard to all the circumstances”, and that would have been sufficient. When you start talking about considering a number of circumstances, it is worth considering the balance of the matter. The amendment bears further reflection.

Lord Bassam of Brighton: Of course the amendments bear further reflection; they always do. We try to make sure that is the case. The best I can say to the noble Lord, Lord James, is this. We must bear in mind that each case will have to be judged on its individual merits. You cannot always compare one case with another, though clearly there can be common themes across cases. I suppose it will be important, although the noble Lord has not said it in these terms, that there is guidance in relation to this. He is right that we must make sure that guidance is really clear so that there is a good, common understanding of how the law will work. I am grateful to the noble and learned Lord, Lord Lyell, for his tease because he is right. One has to take all the

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circumstances into account, and we have provided for that in framing the legislation. I am grateful for his further observations.

Lord Hunt of Wirral: Does the Minister agree that if the message from this Bill were to be that every organisation must appoint one of its directors or senior personnel as a dedicated health and safety director, and every organisation in fact were to follow that lead, it really would be a tremendous achievement? I do not know whether the Government have some other plan for making sure that this advice is followed. It is sadly the case that not many organisations have appointed one of their directors as a dedicated health and safety director. I agree with the noble Lord, Lord Lee, that if that were to happen, it would send a very clear signal. Can the Minister not acquire a better form of Morse or semaphore and send out the very clear signal that the whole Committee would like him to send?

Lord Bassam of Brighton: That is a nice invitation from the noble Lord. I go back to the point that I made earlier, that there is a danger in singling out just one element of guidance, which in a sense this amendment invites us to do. It asks that every organisation should have a director who is responsible for health and safety. That is fine as it stands, but as I pointed out earlier it runs the risk of producing a tick-box mentality where people say, “Yes, we’ve got one of those. Problem solved. We can forget about it”. There is a downside, and I invite noble Lords to think about that risk.

I understand that some further reflection is being undertaken about the guidance relating to health and safety issues, so in that context it may well be an issue which requires further thought in any event, although we are talking about issues of negligence here. However, it is an important point, and I have registered it. I do not think it is appropriate to put it in the Bill in the way suggested for the reasons that I have set out, but that is not to say that the issue is not important. Obviously it is important, and we want to encourage organisations to adopt a robust approach to health and safety issues so that the instances where an organisation has to be tried for corporate manslaughter are greatly reduced. If that is the case, the legislation will have been successful, and people will recognise that.

Viscount Goschen: Before the noble Lord who moved the amendment winds up the debate, I ask the Minister whether, in referring to a director, he means a main board director if it is a listed company, particularly given that many boards are moving towards having fewer executive directors on the main board. Secondly, does the Minister really mean a “dedicated” health and safety director, or does he mean a nominated health and safety director? The word “dedicated” suggests to me that that would be a director’s sole task. It might be unrealistic to expect many large plcs to have a director serving on the main board who deals with nothing but health and safety. These are merely questions for clarification.

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Lord Lee of Trafford: The noble Viscount makes a very fair point. I accept that “dedicated” is probably not the correct term, and I would prefer “nominated”. So far as whether it should be a main board director, I think it should certainly be a senior director, whether on the main board or a director of a subsidiary just below the main board; one could debate that. However, a nominated senior director would be advantageous.

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