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Grand Committee
Thursday, 18 January 2007.
The Committee met at two o’clock.
[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
Corporate Manslaughter and Corporate Homicide Bill
(Fourth Day)
The Deputy Chairman of Committees (Lord Brougham and Vaux): Welcome to the fourth day of the Bill. I am sorry that we have been moved to this Room, but health and safety officials predict that things might fall on top of us in the Moses Room if we did not wear tin helmets.
Clause 9 [Power to order breach etc to be remedied]:
Lord Hunt of Wirral moved Amendment No. 80:
The noble Lord said: The amendments in this group are probing in nature. I want to give the Government an opportunity to explain the amendments that they moved in the other place, because there was no such opportunity on Report there.
Both Amendments Nos. 80 and 81 would delete “the relevant breach”. Amendment No. 81 would insert “that”, the word that appeared previously. Amendment No. 82 addresses paragraph (c) of subsection (1) of the clause. I was interested to note the inclusion of that small paragraph, which puts a duty on the courts to consider how,
may be remedied. I assume that that ought to be read in conjunction with proposed new subsection (3), contained in Amendment No. 83.
I am grateful that the Government have amended the clause in this way. I note that these amendments were tabled in response to my honourable friend Dominic Grieve, who raised a series of points in the other place.
Remedial orders are all very well and good but there is no structure within the Bill to ensure that they are carried out. What is more, previously there was no direct link to regulators, who have far more experience than the courts in the precise health and safety requirements that a remedy order would require.
The Minister in another place said that he was,
- “confident that, as well as being involved in the drawing up of remedial orders, regulators will be fully engaged in monitoring compliance with such orders, without the Bill making specific provision in that respect”.—[Official Report, Commons Standing Committee B, 26/10/06; col. 178.]
I am glad that the Government agreed to reverse that position. It is important that there is a strong link
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Lord Bassam of Brighton: I am grateful to the noble Lord, Lord Hunt, for his words and reflections on the passage of the Bill in another place. I am sure that his recollection is absolutely right. We were very happy to bring forward the amendments to which the noble Lord refers, in order to add clarity and structure. Our position on the amendments is very clear and understood. We are grateful to the noble Lord for tabling his probing amendments so that we can explain more fully our thinking.
It has been correctly pointed out that the relevant health and safety regulator is likely to have taken action long before a trial to address any dangerous practices in the organisation. The regulators have very considerable powers to do that. But the advantage of having remedial orders in the Bill is that the court can use them to deal with any deficiencies that come to light during the trial, or which the regulators feel are not sufficiently being addressed.
Remedial orders are not just about taking action to remedy the immediate and localised causes of a fatality, and the purpose of the provision that the noble Lord’s amendment seeks to remove is to make clear how much they can address. Remedial orders give the court the power to order the organisation to address the management failure that was the basis of the conviction and also to put right any consequences of that management failure that appear to the court to have been a cause of death. But the effect of the provision in question is that the court could go one step further and require the organisation to remedy any deficiencies in its policies, systems and processes for the management of health and safety which created the environment in which the fatal management failure could occur.
If a company was convicted on the grounds of inadequate staff training and it became clear at the trial that the lack of training in the company was indicative of a general disregard within the company for health and safety, by using this provision the court could order the organisation to develop and implement new health and safety policies. We think that the provision in question completes the picture of remedial action. The courts will be able to take a global view of the circumstances that led to a death and to order remedy at any level, from practices on the ground right up to the establishment of written safety policies throughout the company which seem necessary to prevent further death or injury. We want these powers to underline that the offence is not just about convictions and justice, but as we have discussed on a number of occasions, about changing corporate behaviour too.
Amendment No. 87 would remove the requirement for the prosecution to consult the relevant regulator before applying for a remedial order. We introduced this requirement in another place in response to concerns expressed by Dominic Grieve among others
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I hope that the noble Lord will feel that these comments flesh out some parts of the consideration that were not there before, and I am sure that he will be happy to know the exact basis on which we have made these changes.
Lord Hunt of Wirral: I am. I do. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 81 and 82 not moved.]
Baroness Turner of Camden moved Amendment No. 83:
(a) identify a person or persons within the organisation to be responsible for ensuring that steps are taken; and (b) require that there is a report back to the court with details of the steps taken.”The noble Baroness said: I shall also speak to Amendment No. 88. I will leave Amendment No. 89 to my noble friend Lord Wedderburn. We desire to strengthen Clause 9. The court should require named persons to take the steps required to improve the systematic failings that led to the offence. A person who fails to take the steps that the court requires to prevent more death and injury should clearly understand that this would be in contempt of court; that is the requirement of Amendment No. 88. This is a part of our attempts through amendments to ensure that the failings that led to offences will not be repeated. There should be a report back to the court on the steps being taken.
I hope that the Government will be prepared to accept these reasonable proposals, which we think are essential if the health and safety culture of organisations is to be significantly improved. This kind of step is likely to have public support as well, because whenever there is a disaster resulting in a death, it will be expected that steps are clearly seen to be taken to try to prevent a recurrence. Essentially, that is what we are trying to do in these amendments.
I expect that, like me, many noble Lords will have received documents from the organisation said to be representing the families of people who have died as a result of accidents at work. It serves to remind us that far too many accidents take place nowadays that result in injury and even death. The paper is headed:
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Of course we should not forget that grieving families suffer the problems behind this legislation. I beg to move.
2.15 pm
Lord Wedderburn of Charlton: I am happy to have got here to speak to Amendment No. 89, and somewhat lucky to have done so. I briefly commend Amendment No. 89 to the Government. I remind the Committee that we are at a point where an order has been made to the organisation to take certain steps. My amendment says that where the organisation, company or whatever it is has failed in that respect, and the substantial cause of that has been the,
he is guilty of an offence. With respect, I prefer that to the suggestion that there is any question of contempt of court, although no doubt those who are expert in remedies will want to ponder that distinction. The most important part of Amendment No. 89 concerns where the person who has caused the failure is a director or shadow director. Then the court would have within its discretion the penalty not merely of a fine or other remedy but the possibility of disqualification.
Quite a lot has been said about this in debates on the Bill. It is a very practical matter. Where the court finds—I insist that it is where the court finds—that the failure to obey the order was very grave, it should have at its discretion a series of possible remedies. It is often said that, these days, directors can be disqualified for a large number of wrongful financial failures. I suggest that only a strange imagination would not put a failure to put the organisation’s safety culture, to the level that the court says it must, on a par with the various financial failures in the Companies Act that may give rise to disqualification. It is, if you like, a cross-cut from safety law to company law. In my humble submission, it is a very relevant and proper safety cut—effective to get away in a grave case someone who has not caused the original accident or death but has failed to ensure, as far as possible, that the company’s safety culture is at the level that the court thinks proper by its order. I commend Amendment No. 89 and hope that the Government will at least consider the possibility of such remedies in the Bill, as in company matters of financial failure.
Lord James of Blackheath: Will the noble Lord, Lord Wedderburn, consider a possible variation to this principle? There is cause for concern here. We have talked about the possible need for directors to be given designated or exclusive responsibility for health and safety standards. In this instance, the failure would probably be that of the director responsible for those standards. There will be great difficulty in finding enough people with the right qualifications already serving on boards to become dedicated health and safety officers at board level. Many very good directors will probably be asked to take on this responsibility and learn it on the job. Will the noble Lord, Lord Wedderburn, consider whether it might be fairer and more equitable if, instead
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Lord Wedderburn of Charlton: The noble Lord raises a most interesting point. Perhaps I may answer him in two, or possibly three, ways. First, I do not believe that it would be sensible for the Bill to stress the need for someone in senior management or the board—the noble Lord has mentioned companies and the board so we will stick to that—to be the safety officer or safety director. Secondly, that is all part of a problem that is still there in the Bill: I call it the problem of delegation. In some people’s view—the noble Lord raises this germane point—the Bill allows for delegation to a point where it could almost never bite.
I do not in my amendment suggest that there should or must be a director on the board nominated as safety director or the like; I say that after the accident, the death and when the court has passed on the initial proceeding, a director who is responsible for failing to carry out a court order should, according to the discretion of the court, be open to disqualification.
I have written to the Minister on delegation, which must surely receive a little more thought before Report. I am sorry to have mentioned it, as the Minister has so much to do, and in the absence of his colleagues it is an extra burden, but delegation is such an significant problem that I hope he will be able to turn his mind to it. I do not believe, for example, that it should be open to a board, the articles of a company or any other arrangement to delegate expressly safety matters to someone below board and senior management level. Where that is done as the Bill stands, the Bill will never bite.
Delegation below senior management should not be allowed. Somebody in senior management should have to use his greater authority to deal with these matters. As I say, I have written to the Minister about this matter and, with his colleagues, he will no doubt consider it before Report. I very much look forward to the Government’s views on the general question of delegation as it applies to the Bill. I am grateful to the noble Lord, Lord James, for raising the point.
Lord Hunt of Wirral: I found the arguments of the noble Baroness, Lady Turner of Camden, persuasive, as, indeed were the comments of the noble Lord, Lord Wedderburn of Charlton, and of my noble friend Lord James of Blackheath. There is a strong case for the courts to ensure that responsibility for putting things right after an offence has been committed should rest with a named individual or individuals. It is presumably safe to assume that the organisations in question already suffer from substantial management dysfunction; therefore, little may be achieved if the responsibility for rectifying
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There is, however, a reason for qualifying support. If an individual is charged with putting things right, the question inevitably arises: what sanctions may be applied against that individual if he or she fails to deliver the required improvements,
We have already had a hint of that, with the references to possibly contempt of court and possibly a fine or various other remedies. I suppose all this creates a danger of going against the corporate character of the legislation, since it seeks to add a provision, here in Amendment No. 89, for the fining or even limited or indefinite disqualification, in extremis, of individual directors of organisations. I agree with my noble friend Lord James of Blackheath that we have to be a little careful, because we do not want to get rid of really rather clever, astute and powerful directors because they have a complete inability to deal with health and safety practices. I assume that the Minister will speak along those lines, but I look forward to hearing what he has to say.
Lord Bassam of Brighton: All the amendments in this group are concerned with ensuring that organisations convicted of the new offence carry out any remedial action ordered by the courts. My noble friend Lady Turner set out very clearly how she believes that should take place. It is important that organisations comply with remedial orders, and to that end we have made the consequences of not complying with an order more serious than was the case in the original draft Bill. Organisations that do not comply with a remedial order will be committing an offence, and will be returned to the Crown Court, where they will be subject to, potentially, an unlimited fine.
Amendments Nos. 83 and 88 propose that the courts should be able to go further than that, however, and name an individual who could be guilty of contempt of court if the organisation did not comply with a remedial order. Taking a different approach, Amendment No. 89 proposes to introduce a new form of secondary liability to the offence of non-compliance with a remedial order, with the penalty of an unlimited fine and, in the case of a director, possible disqualification. Like the noble Lord, Lord James, I have some reservations about that approach. Some might feel that naming an individual amounts to threatening to sanction an individual for the faults of the company and would stigmatise that individual without necessarily affecting compliance. The noble Lord, Lord James, went further and suggested that it might be damaging to an exemplary director in all other respects.
It may not be necessary to introduce a secondary offence of non-compliance. If failure to comply with a remedial order was clearly attributable to the acts or omissions of a particular individual, the ordinary
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We are, however, committed to ensuring that remedial orders have their intended effect. It is vital that organisations convicted of corporate manslaughter do whatever is necessary to ensure that the offence will not recur, and if a remedial order is necessary to give effect to that, it must be complied with. I understand the points that my noble friend made in this respect about nominating an individual as responsible for securing compliance. I hope, too, that she understands my reservations and why this does not appear in the Bill. It might be that some progress can be made here, but I do not want to raise expectations that we later cannot fulfil.
Amendment No. 83 takes another approach to compliance—
Lord Wedderburn of Charlton: I think that the noble Lord is progressing from Amendment No. 89, on which I wish to comment. It does not impose secondary criminal responsibility. The noble Lord’s points about the secondary liability of aiding and abetting had crossed my mind, but there are problems with aiding and abetting that would not apply in the situation that Amendment No. 89 addresses. Amendment No. 89 is a very simple case of a primary liability for causing the failure to comply with the order of the court. It is a primary failure to obey a court order; it is not aiding and abetting the organisation. It is about substantial, direct causation.
I agree with the noble Lord that the arguments based on secondary liability have their problems, but, with respect, they do not seem very substantial here. I do not wish to inhibit the progress that the noble Lord has mentioned and I am very grateful that the word has been introduced into the discussions. We look forward to that progress, but—I say this simply to expose a difference between us—the amendment is not based on secondary responsibility.
Lord Bassam of Brighton: I am grateful to the noble Lord, Lord Wedderburn, for his elucidation. Clearly, we will need to reflect on his comments. As I was explaining, Amendment No. 83 takes another approach to compliance and proposes that the court should be able to require a convicted organisation to report back to it with details of the remedial steps taken. However, it is not clear how such a proposal could work, given that the original court will have risen at the end of the trial. Reconstituting the court to receive such a report would be a new departure for the UK courts, which currently do not monitor sentence compliance in that way. Without expert guidance it would also be very difficult for the court
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A better approach would be to trust the expert bodies to do their job. The relevant enforcing body will have a strong interest in ensuring that safe practices are adopted in a convicted organisation.
Lord Clinton-Davis: Why would it be necessary to reconvene the specific court that considered the original case? Am I not right in saying that any court could intervene in this?
Lord Bassam of Brighton: I was anticipating that the noble Baroness would argue that it would be more appropriate for the court that considered the original case, with its knowledge of that case, to consider the response to the remedial order. Obviously, I cannot speak for the noble Baroness, who will have to make that point herself.
The relevant enforcing body would have a stronger interest in ensuring that safe practices are adopted in a convicted organisation, which is especially true if that body has been involved in setting the terms of the order as the provision now requires. I am therefore confident that, as well as being involved in drawing up remedial orders, regulators will want to be, and will be, fully engaged in monitoring compliance with them.
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