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The noble Lord, Lord Wedderburn, raised the issue of delegation and his correspondence with us. I can confirm that we have received the letter and are giving it active consideration. We believe that some delegation in respect of the safe management of operations is sensible. That must go hand-in-hand with monitoring and supervision. Given the wide range of circumstances, the Bill cannot seek to prescribe to which it will apply. We believe the Bill will act as a safeguard against an abdication of responsibility. We will of course consider the letter very carefully because it raises important points, as I am sure noble Lords will appreciate, so we will have to reflect on it. I hope that, having heard what I have had to say, the noble Baroness, while perhaps not entirely happy with the Government’s response, will feel able to withdraw her amendment. We will see what progress we can make on this issue because we recognise its importance.
Baroness Turner of Camden: I thank all noble Lords who have contributed to this debate. There seems to be a fair measure of agreement among us; it is simply the way in which we go about it. I am not sure whether that is also true for the noble Lord, Lord James, who seems to sense that there is something to be dealt with, but does not agree with the way in which we are proceeding with this text. I am very happy about that. From what the Minister has said, he seems to take that position as well, although he seems to be relying more on the remedial orders and the necessity to ensure that there is a reporting back even on the remedial orders. Of course, that does not go as far as we would want, but I am glad to learn that the point about delegation, which has already
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I am willing to withdraw the amendment today, but we shall look carefully at the text of our discussion and await with interest any possible further progress by the Minister on rewording on this very important issue. It is important that steps are taken, when there has been an unfortunate, desperate injury and death, to ensure that the circumstances in which it arose are not allowed to recur, and that the court has a role in ensuring that.
2.30 pm
Lord Clinton-Davis: Before my noble friend proceeds further, will she deliver an encomium—or whatever it is—on the suggestion that I made? I do not think that there should be any obligation that a specific court should be reconvened. Am I not right that any court of the same jurisdiction would suffice?
Baroness Turner of Camden: Yes. That is what the wording says—well I believe that that is right; that is a point to consider. I am not a lawyer, so I really do not know the answer, whereas my noble friend Lord Clinton-Davis is. That is a matter for the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Razzall moved Amendment No. 84:
“( ) A court before which an organisation is convicted of corporate manslaughter or corporate homicide may order it to take specified steps to—
The noble Lord said: It may save the Committee's time if I speak also to Amendments Nos. 85 and 86, which make the same point. I notice that for the first time they are not grouped.
Amendment No. 84 would alter the types of order that can be made by a court on conviction, and the circumstances in which they could be made. I am very much obliged to the work that Justice has done on that point. The amendments would allow the court, in addition to making remedial orders, to order the organisation in question to take steps to prevent further occurrences of the breach in question—particularly relevant in cases where the breach is not ongoing—to publicise its conviction and any associated convictions and to make reparation to the family of the deceased, the public or any section of the public. We hope that such orders would act as a greater deterrent than a fine alone.
Amendments No. 85 and 86 are very straightforward. They would permit the orders to be made without there being a prosecution application. I beg to move.
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Lord Hunt of Wirral: These are very sensible amendments. If we are serious about changing behaviour, the potential sanctions must have teeth. I therefore support the amendments and look forward to a positive response from the Minister.
Lord Bassam of Brighton: The first limb of the noble Lord's amendment seeks to reduce the likelihood of a convicted organisation reoffending. That is obviously a shared ambition of the Government and it was for this reason that we included in the Bill a provision for remedial orders. The orders deliver exactly the benefit of the first limb of the noble Lord’s amendment: they are targeted at remedying the breach for which the company was convicted, matters arising from the breach, and policies, systems and practices which created the environment in which the original breach occurred. Remedial orders give the court the power to tackle failings at every level of the failure that caused death, from practices on the shop floor up to overarching health and safety policies. To that extent, the first part of the noble Lord’s amendment is already catered for in the Bill.
The noble Lord also proposes that an additional sanction of publicity orders should be provided in the Bill. We discussed a similar amendment to Clause 1, and I indicated then that we were giving very careful consideration to the possibility of including some sort of adverse publicity order. Reputation, as we all know, is an important asset to most businesses, and such a sanction would be a strong disincentive to those who think it may be worth their while to disregard health and safety obligations.
Publicity orders are already being used successfully elsewhere. In Canada, for example, the courts can order an offender to publicise, in a manner specified by the court, the offence of which it is convicted, the sentence imposed, and any remedial action the organisation is taking. The Government are giving very careful thought to the possibility of including a provision along these lines in the Bill.
The third limb of the noble Lord’s amendment concerns reparation made to the family of the victim, and to the wider society. On reparation to family members, it is already possible for the courts to make compensation orders under Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000, but it is not likely to be in the interests of the family to be compensated in this way. These orders are designed for straightforward cases where the amount of compensation can be readily and easily ascertained. In the context of someone losing their life, assessing the appropriate level of the compensation order would be complicated. Civil courts are likely to be in a better position to award damages, as they have the time and expertise to assess the scale of loss suffered and to assess compensation. We therefore do not expect the courts to use these powers much in corporate manslaughter cases.
On making reparation to the wider society, the noble Lord is in effect calling for the courts to be
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The Government are very interested in this new kind of sanction, but I think all would agree that it would be a novel disposal for the UK courts, and further work and consultation is needed on how it could be delivered. That, of course, is beyond the timeframe of the Bill. We are, however, keen to implement Professor Macrory’s recommendation, and legislation is already planned to implement the administrative penalties recommended by the review. There is also the possibility that a number of alternative criminal sanctions for use by magistrates and judges in cases of regulatory non-compliance will be included in this work. I hope I have assured the noble Lord that we are actively considering the issue and are working out some practical way in which alternative sanctions for those convicted of a wide range of criminal offences—in this case, corporate manslaughter—might work.
Amendments Nos. 85 and 86 would allow the court to impose remedial orders without reference to anyone else. I understand why the noble Lord advocates this, but we argue that there are some risks in going down that road. During pre-legislative scrutiny, the Association of Train Operating Companies gave a very good example of a remedial recommendation that might on the face of it have been superficially attractive but which would in effect have compromised the structural integrity of train services. If we were to accept the noble Lord’s recommendation, it would be for the judge to decide the terms in which the order should be given. However, remedial orders may sometimes be very technical, and we argue that it would be unrealistic to expect a judge necessarily to be in the best position to recommend remedial action without some form of expert guidance. For those reasons, innovative though the noble Lord’s amendments are, we cannot accept them at this stage. They might, however, be considered in the longer term.
Lord Razzall: I thank the Minister for his quasi-positive response. When we talk about longer term considerations, it always worries me that the relevant Minister will be subject to the pressures of time and Queen’s Speeches. I also worry that he will give consideration to this, but that it will be another 12 years before the Government, or the relevant Home Secretary, can free his department from the burden of more than 50 law and order Bills since 1997 in order to be able to get something like this into the Queen’s Speech.
I shall withdraw the amendment. The noble Lord, Lord Hunt, always makes the point that there is not a
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Amendment, by leave, withdrawn.
[Amendments Nos. 85 to 89 not moved.]
Clause 15 [DPP's consent required for proceedings]:
On Question, Whether Clause 15 shall stand part of the Bill?
Lord Razzall: I suppose from the Government’s point of view this is really a yes or no answer on whether they are prepared to accept this simple issue of principle. My purpose is to remove the requirement that a prosecution for corporate manslaughter can take place only with the consent of the DPP or the DPP for Northern Ireland. The effect of the clause is to prevent private prosecutions from being launched for the offence of corporate manslaughter.
Obviously—this applies to all criminal law—the prosecution of criminal cases should normally be a matter for the state, but there is also a general principle of criminal law that from time to time private prosecutions are permissible and desirable. I would certainly have thought that in the case of corporate manslaughter, the possibility of a private prosecution should certainly be permissible and often will be desirable, particularly in circumstances where there is an offence for which a government department can be held liable. To some extent, there is a potential conflict of interest between the Government and the DPP deciding whether a prosecution should be made.
We can all envisage circumstances where death has resulted from a tragic accident caused, in the view of the public, by the gross negligence of the perpetrating authority. For justice to be seen to be done, if the DPP has refused to allow a prosecution, there should be the possibility of a private prosecution. Understandably in these circumstances, the people who feel that they have been wronged by the act or omission do not go away simply because the DPP has decided that a prosecution should not be allowed. I stress that the organisation under investigation in the case of corporate manslaughter could often be a police or law enforcement body, or even the CPS. In our modern world, a failure to consent to prosecution will undoubtedly give rise to accusations that the DPP is seeking to insulate the relevant organisation from proceedings. Indeed, it is obviously totally inappropriate for the DPP to be asked to consent to the prosecution of his own department, which is included in the list in Schedule 1.
I started by saying that this is a simple point of principle. I hope for all those reasons that the Government could concede the desirability of permitting private prosecutions in relation to the corporate manslaughter offence.
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2.45 pm
Lord Bassam of Brighton: Clause 15 stipulates that the consent of the Director of Public Prosecutions, or the DPP for Northern Ireland, will be needed before corporate manslaughter proceedings can be instituted. In Scotland, all proceedings on indictment are instigated by the Lord Advocate. Therefore, there is no need for a consent mechanism.
Requiring the consent of the DPP means that private prosecutions will be able to proceed only if the two-stage test in the code for Crown prosecutors is satisfied; namely, that the state of the evidence is such that there is a realistic prospect of conviction, and that a prosecution would be in the public interest. If the DPP does not consent to prosecution, that decision can be challenged through judicial review.
In Committee in another place, there was concern that this requirement effectively prevents private prosecutions. A question was asked whether, if the DPP felt that there was sufficient evidence and a public interest, there might still be some question of whether he would allow the private prosecution. There is no question here. There is no additional factor in the DPP’s decision about whether to give consent, and, if evidential and public interest tests are met, there would be no basis for refusing consent.
In the vast majority of cases, there will be no question about public interest; although I should pause to say that there may be some tragic cases where, for example, in the case of a family business and a close relative is killed, the public interest in pursuing a prosecution may be low. But even in these cases the CPS will bring a case if, despite the tragic circumstances, it is in the public interest to do so.
In practice, the DPP’s decision on consent will hinge on whether sufficient evidence is available. The CPS must assess the quality and admissibility of evidence and so on, and decide whether it supports a realistic prospect of conviction. That test means that, on the basis of the evidence, a jury, properly directed according to the law, is more likely to convict the defendant of the alleged charge.
Where the evidence does not exist to support a realistic prospect of conviction, we do not think that any organisation should face the prospect of a private prosecution. We do not see requiring the DPP’s consent as reducing victims’ access to justice. The Bill ensures cases can get to court and can be considered by the court under a wider test for liability than they currently can. We argue that it is in no one’s interests to see cases go to court where there is no realistic prospect of conviction under the new framework.
We believe that the label of manslaughter is and should be taken very seriously; that it should be reserved for the very worse sort of offending; and that its impact on a company convicted of it should be significant. But because we want it to have that effect, and believe it will, we do not want companies that manage health and safety well, but which tragically have a fatal accident, to have their reputations damaged through unfair charges. That is why we
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Given the safeguard that a decision by the DPP not to give consent can always be subject to a judicial review, we do not think that the provision advanced in the amendment should find its way into the Bill.
I take the point made by the noble Lord, Lord Razzall, about conflicts of interest of the DPP in Crown cases. We do not think that it should be a problem. The DPP is an independent person. It is a highly respected position that carries great integrity. We are entirely confident that the DPP would act independently and quite properly. In answering that point, we have to respect the integrity of the DPP’s position and understand just how that works.
Lord Hunt of Wirral: There is a problem here—is there not?—that many Members of the Committee will be troubled by. Despite the Government’s confetti of exemptions, many public sector organisations, including some that are very closely associated with the DPP, will still come under the aegis of this legislation. There will, therefore, be at least a possible perception of a conflict of interest in the minds of the public. The DPP himself is included in the list of organisations in Schedule 1. I know that we all believe strongly in the integrity of the DPP, but it is the perception here which troubles me considerably—the point raised by the noble Lord, Lord Razzall.
Lord Bassam of Brighton: Well, I take the noble Lord's point, but the history of how the DPP has operated has shown that we can have confidence in the DPP. In some senses, we could argue that the amendment undermines that position, because it questions that independence and integrity. I take issue with that quite seriously. We should rely on that independence and integrity and ensure that we express our confidence in the DPP to act independently and entirely properly.
Lord Hunt of Wirral: May I press the Minister at little further? If there was a possibility of a prosecution against the DPP for corporate manslaughter, what would be the position?
Lord Bassam of Brighton: My understanding is that that is a matter for administrative arrangements within the CPS. The papers are automatically sent to CPS headquarters and, in most cases, the matter is that branch level, so a distance can be achieved here and the system should work quite properly. Of course, the default position if people are unsatisfied with the DPP's judgment is that that can be questioned by judicial review.
Lord Wedderburn of Charlton: Perhaps I can take the Minister to a slightly different tack. I would have great confidence in the Director of Public Prosecutions exercising the discretion that the Bill gives him, although I appreciate the publicity problems where a government department is involved. Is there not a second point about government policy?
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Again and again, the Government have said that the criminal law system does not pay enough attention to the victims. Although I cannot offhand cite particular occasions, the Committee will be well aware that that note is struck by the Prime Minister and other important Ministers. I do not think that it was struck in Bangalore, the other day by one very important Minister, but the victim’s place is a constant theme of government policy in criminal legislation. This is a very serious crime guarded by all sorts of limitations in the Bill—I do not suggest that there should not be particular conditions—but surely the Government’s policy suggests that in some circumstances a private prosecution should be left open in the Bill. My noble friend Lady Turner mentioned the organisation for those who are or have been victims and the dreadful consequences where workers are killed by gross negligence at work.
Lord Bassam of Brighton: The noble Lord makes a case and puts an argument with which we do not ultimately agree. The way in which cases are prepared and the fact that the CPS gives them very careful consideration before going forward ensures that these interests are properly considered. It is in everyone’s interest for cases to be properly supported by evidence. Where evidence is not sufficient to suggest the likelihood of a proper trial, fair consideration and likelihood of a conviction, I am not sure that it would be worth the cost or be in the public interest for such a case to proceed. The requirement for consent does not ultimately prevent a private prosecution, but acts as a filter, which we have seen in some cases of public concern historically. I do not think that I entirely agree with the noble Lord. The noble Lord’s point about seriousness is important. These are very serious cases, and I suspect their number will be small. It is right that we should be absolutely certain that we are taking the right course of action, so that such cases can be properly heard with a realistic prospect of a positive outcome in terms of a conviction.
Lord Razzall: Of course, like other noble Lords, I was not in any way impugning the independence or integrity of the DPP. I do not think that the Minister has really dealt with my point: in this crime, as in almost no other crime, people who have been damaged, or whose loved ones have been killed, as a result of what they perceive to be the gross negligence of an organisation, will not give up simply because the DPP says that it is not prepared to prosecute. By definition, for this to be a relevant question, anyone who has suffered what those people have suffered will be, very often, in campaigning mode. Recently, when the Attorney-General failed to take actions that members of the public thought that he should have
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