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I urge the Minister to reconsider. The issue will not go away. Campaigns will continue; families who have lost members are already campaigning for changes in the law. We cannot wait until another disastrous industrial accident increases public pressure, as it surely will. We have the opportunity, with this Bill, to do something now. I urge my noble friend to take it. I beg to move.

Lord Hoyle: My Lords, I support my noble friend on this amendment because it goes to the heart of the Bill. I must declare my interest in the union movement: I am a member of Amicus and the ex-president of two unions that are now part of Amicus, the ASTMS and MSF. In welcoming the Bill, we feel that it does not go far enough because as long as no one in a company is responsible, this problem will continue. My noble friend referred to the Baker report on the deaths that occurred in BP’s plant in the United States. BP’s aspirations include no accidents and no harm to people but, among many other things, the Baker report stated that:

That makes the case we are making very clear. Unless somebody is responsible and will have to face up to the consequences, these accidents will continue. Priority must be given to health and safety at high level, at boardroom level, and someone must be responsible for it. I believe that, my union believes that and, as my noble friend said, so do all those whose husbands, wives or other relatives have been subject to these disasters in large companies. I want to emphasise that the problem is with large companies. With small companies, it is easy to prove that somebody is liable. I hope that the amendment requiring companies to accept that somebody must be responsible at boardroom level will be accepted.

Lord Henley: My Lords, I hope that the Government will not accept this amendment. We on these Benches cannot offer it any support. As we have made clear on a number of occasions, we support the general principle behind the Bill, which is the establishment of a corporate manslaughter offence, but to take it further and add layers to the existing offence of manslaughter would undermine the central principle of the Bill. For that reason, we hope that the Government will reject this amendment.

Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness, Lady Turner, and the noble Lord, Lord Hoyle, for their enthusiasm for this amendment, even if I do not entirely agree with their thinking and the logic behind it. The amendment raises an issue that goes to the heart of the debate on

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the Bill. The question of whether the new offence should impose liability on individuals as well as on corporate bodies has been central in debates on the Bill. Noble Lords will know well that the Government’s position is that the offence should focus on corporate not individual liability, which means creating a new offence applicable to organisations and excluding secondary liability for the new offence on the part of individuals.

The case for making provision in the Bill for individual liability is fundamentally based on two arguments: first, that an individual must be held to account when there has been a death; and, secondly, that individual liability is needed to drive home the responsibility of senior managers, a point forcefully made by the noble Lord, Lord Hoyle. These are weighty arguments but, in summary, the Government do not believe that individual criminal liability can always be established, and consider that the question of director responsibility goes wider than the imposition of criminal offences. Therefore, I am not able to offer much comfort to the noble Baroness, Lady Turner, or the noble Lord, Lord Hoyle. However, I owe it to them to set out our thinking in more detail.

The genesis of the Bill lies in the difficulty the law has in establishing an effective form of accountability for manslaughter for corporate bodies. The controlling mind test in the existing law has worked in a small number of prosecutions of small companies, but it has not proved to be a successful basis for prosecuting more complex organisations where failures in the chain of management can rarely be laid at the door of specific individuals.

That is the problem the Bill seeks to address, and is why the Bill shifts the focus away from individuals and bases liability on gross failures in the management of systems and processes within an organisation. In the future, juries will be able to consider the overall picture of how an organisation’s activities were managed or organised, instead of having to focus on the actions of a single individual. That offers scope for a wider and more effective basis for holding organisations to account for failures in the way they were managed.

Having recognised that complex organisations cannot be convicted solely on the basis of the acts and omissions of senior managers, we think it is problematic to try to turn that situation on its head and say that senior managers ought to be identified to take responsibility for the organisational failure. The failure of the controlling mind test has shown that it does not reflect the reality of corporate decision-making and, as the Health and Safety Executive has attested, the majority of work-related deaths are due to systemic management failures, not to the actions of individuals.

In the case of the Hatfield crash, when sentencing Network Rail and Balfour Beatty for breaches of health and safety legislation, the judge felt moved to remark that:

In the same circumstances, proceedings against individuals for manslaughter offences and under health and safety law resulted in dismissals by the judge or acquittals from the jury. That underlines the need to move to a new basis for judging corporate negligence that is not linked to individual criminal liability.

It also raises a significant question about what the offence proposed by the new amendment would add. It would impose liability where a senior manager contributes to the offence of corporate manslaughter by gross negligence. If it is indeed the case that a senior manager has acted grossly negligently and caused death, he can already be prosecuted for manslaughter. Lower down the scale, health and safety law provides sanctions against individuals whose conduct has contributed to health and safety failures.

Lord Clinton-Davis: My Lords, I was a commissioner at the time of the “Herald of Free Enterprise” disaster. As I understand it—and I will be corrected if I am wrong—there was no satisfactory inquiry into that episode. Would my noble friend therefore argue that the families of victims of that episode should not be compensated? Is it not right that there should be a criminal prosecution against the people who perpetrated that disaster?

Lord Bassam of Brighton: My Lords, the issue of compensation is wider than the subject of the Bill. I do not think that that is the point. Whether the “Herald of Free Enterprise” case would have led to criminal prosecutions is a matter for some conjecture, although one should abstract one’s personal view from these issues.

What I was trying to say to my noble friends was that, on the lower order of issues relating to health and safety, the law provides for sanctions against individuals whose conduct has contributed to health and safety failures. The proposed new offence, with a test of gross negligence, would not add a significant new liability or deterrence to that already provided by the law.

The second argument advanced in favour of individual liability is the desire to see responsibilities taken seriously at a senior level. That is part of a wider debate about director-level engagement in health and safety management.

We recognise the importance of director leadership. Over the past 12 months, the Health and Safety Commission has examined in depth with its consultees, its stakeholders and others the issue of statutory duties on directors for health and safety management. It has not advised in favour of legislation, but intends to return to the matter when the implications of other reforms are clear—such as

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the effect of the Bill, recent company legislation and the action following Professor Macrory’s review of regulatory enforcement.

In the interim, the commission has asked the Health and Safety Executive to press ahead with producing new guidance on director responsibility, with the Institute of Directors playing a leading role, and with input from other business, the trades unions in particular, professional bodies, the Government and other stakeholders.

Just to remind ourselves: this Bill is designed to tackle a particular problem with corporate liability. We want to ensure that organisations will no longer be able to escape liability for their action because the law makes this contingent on individual guilt. Where individuals are personally responsible for a death, the law sets out a framework for holding them to account. We consider that it is the link between individual and corporate guilt that is inappropriate; and the primary purpose of the Bill is to address that problem.

The noble Lord, Lord Clinton-Davis, made a point about the “Herald of Free Enterprise”. I am reminded that there were criminal prosecutions against individuals and that there was a public inquiry. He is entirely within his rights to question the findings of that inquiry and to raise the points he did. I put that on the public record for accuracy.

7 pm

Baroness Turner of Camden: My Lords, I thank my noble friend for that very comprehensive response to the amendment, but he repeated a great deal of what he had already told us in Grand Committee. This is a different sort of Bill; it does not provide for individual liability, and there is no intention by the Government that it should do so. I stress, as I have stressed before, that this will not be acceptable to many people—and I do not just mean the unions. This is a new offence and an entirely new Bill. It is new legislation and it gives an opportunity, as I said in my opening remarks, to deal with the issue of individual liability if the Government wish to do so.

There is public concern about this, and cases will arise where families will campaign. They have already begun to do so. The families of past victims have formed an organisation that has started to issue briefing papers and to campaign for a change in the legislation along the lines we have suggested.

As I said in my opening remarks, the unions will not be satisfied and will continue—although they accept the new legislation—to campaign for its improvement, as they see it, and for the introduction of an offence involving individual liability. They believe very strongly that without that provision there will not be a change in the culture of a number of companies. Indeed, as the article in the Times stressed, if you introduce the idea of individual responsibility it will change the culture of companies in the direction of better health and safety management. That is really what we are all about and want to achieve.

This issue will not go away; it will recur again and again. Let us hope that we do not have to wait for another accident with a death for more public

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pressure and then perhaps a further piece of legislation. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No. 8:

The noble Baroness said: My Lords, Amendment No. 8 is about secondary liability. It seeks to establish secondary liability for those who connive, conspire or collude in an act which results in death. This matter was recommended by the Joint Select Committee and it was discussed in Grand Committee. I am still unclear why the Government felt unable to accept the recommendation of the Select Committee.

It was suggested during the course of the debate that individual directors could be prosecuted for the common law offence of gross negligence leading to manslaughter under the Health and Safety at Work etc. Act. It then transpired that during the past 10 years there had been only seven successful prosecutions and that all of them occurred in small companies.

I therefore return to the issue on Report. There seemed to be considerable support for this in Committee. It is widely believed that a provision of this kind in legislation would have a significant deterrent effect. I therefore hope that since Grand Committee the Minister has been able to consider the powerful arguments made in favour of this by a number of noble Lords, in particular my noble friend Lord Wedderburn and the noble and learned Lord, Lord Lloyd, who declared that he could see,

Of course, in order for this to be effective, we cannot have Clause 16 in the Bill and we have therefore tabled an amendment to leave it out. I beg to move.

Lord Clinton-Davis: My Lords, it is beyond reason to imagine that the board could not have considered a rapid turnaround. The “Herald of Free Enterprise” and similar ships would have followed the instructions of the board to the letter. That instruction undoubtedly was that the quicker the turnaround the better because it meant more profits; it meant a whole lot of things that the board would have thought were very desirable. That policy was undoubtedly against the public interest. Therefore, I conclude that senior management must have considered that policy. The crew would have followed those instructions. If they had not, they would have been fired. So, I ask my noble friend to consider with favour what this amendment seeks to address.

It may be, of course, that there are issues which the amendment fails to address, but I shall not go into that. However it is worded, the impression given by my noble friend is absolutely right. There can be no

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doubt that at the highest possible level this issue was considered. I therefore believe that my noble friend the Minister owes the House the duty of addressing these important issues.

Lord Hoyle: My Lords, I support my noble friend’s amendment, to which has been added my name and the name of the noble Lord, Lord Wedderburn. There was a great deal of support for the amendment in Committee. It was felt that the only way to bring the seriousness of the matter home to senior management was that if a death occurred, anyone found guilty of corporate manslaughter should be liable to a period of imprisonment. This seemed to strike a chord with people across the Committee. I know my noble friend the Minister has had time to reflect on this and I hope the Government will support the amendment.

Lord James of Blackheath: My Lords, we have all missed the presence of the noble Baroness, Lady Scotland, throughout this process. At the outset of the debate in Grand Committee, I passed to her a copy of the test cases which I wished to use as examples of how the Bill might apply in practice. She honoured me with a reply, for which I am deeply grateful, in which she made specific reference to one of those cases. Her reply is worth reading because it underlines the confusions that even the noble Baroness herself can see in this, which could lead in time to the Bill being regarded as an unjust arrangement in the eyes of the public.

In her reply, the noble Baroness referred to my example F, the case I postulated of a racecourse with a fence which is known to be particularly dangerous if horses jump into a setting sun and, therefore, as a regular practice it is “dolled off”. But on one occasion, it is not dolled off and the fatality of a jockey occurs. In regard to example F, the noble Baroness said that,

of the racecourse—

Given the state of confusion which exists even in the mind of the noble Baroness, Lady Scotland, how can the wider public possibly perceive the justice of pinning imprisonment on anyone? There are at least five candidates in that particular case—the man who forgot to put the dolling around the fence; the groundsman; the clerk of the course; the chairman or chief executive of the racecourse; and, beyond that, what used to be the Jockey Club but is now the British Horseracing Authority. Some of those might look juicy targets to go for but, on the other hand, to go for any of them would look completely ridiculous in the eyes of the public.

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7.15 pm

Lord Wedderburn of Charlton: My Lords, my name appears on this amendment and Amendment No. 47, with which it is grouped. Amendment No. 47 seeks to leave out Clause 16 and I hope your Lordships will pay close attention to it. It is incumbent on me, therefore, to explain, as I did to the noble Baroness, Lady Turner, why I can support Amendments Nos. 8 and 47 and not Amendment No. 7.

It depends on a fundamental issue relating to the criminal law. What one might call the DNA of criminal liability is a curious and now rather complex double helix, the bond between primary liability and secondary liability. One leading textbook, quoting a case from 1611, states:

The secondary party in the common case is one who is found liable if the evidence proves that he committed the offence primarily or, secondly, that he aided, abetted, counselled or procured it. That is still the ordinary rule of law. Where there is an offence, you expect liability in the primary case to be on the person who committed it, and the secondary liability to be on someone who aids and abets. But not in this Bill; Clause 16 expunges all notion of secondary liability from the Bill’s grasp. Anyone who aids, abets, counsels or procures the offence established by Clause 1 has a complete immunity under Clause 16. It has never yet been explained precisely why this has to be so.

Perhaps I may deal with Amendment No. 8 and then turn to what the Government have said. Amendment No. 8 takes the common-sense line that mostly the people who will be said to have aided or abetted, or in some way assisted in the gross negligence that has led to a death, will be in senior management. It might be said that the amendment should be couched in terms of “anyone” who aids or abets but, as a matter of common sense, I have found it possible to put my name to it as it stands.

The amendment raises the issue of corporate homicide in Scotland. In Committee, we learnt a great deal from noble and learned Lords from Scotland and that the test of corporate manslaughter is quite different north of the Border than it is here. Having raised the point, I suggest that it should be debated when we reach Amendment No. 43, tabled by the noble Earl, Lord Mar and Kellie, and I leave it there for the moment.

Returning to the main issue, why should someone who aids and abets this new offence be given a gigantic, special, separate immunity? As a matter of common sense, again, it has been complained by some people that executives in companies which have been involved in rather large accidents in the past have gone to such lengths by the mantra of “cut costs” that they have aided and abetted the gross negligence of those who left aside the safe system and caused deaths. BP is in the middle of such a controversy. It had a disaster in Grangemouth in 1987, in Falkirk in 2002, and now of course there is the extraordinary explosion at its plant in Texas.

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I take it as common ground that there can be cases where, under the ordinary rule of law, someone could be liable for aiding or abetting this offence. It is not a burden upon me to establish precisely what the circumstances are. As I understand it, it is for me to agree with the case the Government put in Grand Committee that such liability on a set of facts that one might agree upon is possible. If it is possible, why is it excluded?

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