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The noble and learned Lord said: My Lords, in moving government Amendment No. 30 I shall speak also to Amendments Nos. 32 to 35 in the group and resist Amendments Nos. 31 and 36. Clause 9 gives the court the power to order the convicted organisation to remedy not only the management failure and any matters arising from that failure that formed the basis of the conviction but also to remedy any deficiencies in the policies, systems and practices that created the environment in which the fatality could occur. The purpose of those orders will be to prevent further death or injury and it is clearly important that organisations comply with remedial orders when they are set. To this end, we have made the consequences of not complying with an order more serious than was the case in the draft Bill. Organisations which do not comply will be committing an offence and will be returned to the Crown Court where they will be subject to an unlimited fine.
We have also provided that the regulatory authorities will be involved in the setting of an order and are confident that these bodies will ensure that
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The other government amendments are technical changes to the drafting which make no substantive changes to the Bill. I know that my noble friend Lady Turner of Camden has tabled amendments designed to ensure that remedial orders are complied with. I am interested to hear what she will say about them, so I will postpone my comments on those until she has had a chance to speak to them. I beg to move.
Baroness Turner of Camden: My Lords, I have tabled Amendments Nos. 31 and 36 and I assume that in a sense the government amendment suggesting a remedial order is one way of responding to some of the comments made in Grand Committee. I moved then an amendment similar to this one, and I got the impression, from, I think, my noble friend Lord Bassam, that the comments I had made would receive attention. Indeed, they seemed to be sympathetically received.
I was pleased to see this set of amendments, but there are certain differences. In my amendment I wanted to identify a person or persons within the organisation who would have the responsibility for seeing that the steps that had to be taken were actually taken, and to ensure that that person should have the responsibility to report back to the court. If he did not take the necessary steps or report to the court, there would be possibilities of action for contempt. It seemed to me at the time that those were sensible steps that could be taken after a very serious incident to ensure that there would be monitoring of the situation by the court so that the incident was not likely to recur, and that there would be plenty of opportunity for the court to ensure that the proper steps had been taken.
Those are the reasons for my two amendments, but I accept that the propositions advanced by the Government answer to some extent the problems we raised in Grand Committee. I do not intend to press our Amendments Nos. 31 and 36 this evening, although I still believe that identifying someone with responsibility and ensuring that it is followed up is one of the best methods. On the other hand, I know that the Government have taken a different view as far as personal liability is concerned, and this stems from that attitude throughout the Bill. I will not therefore be pressing my amendments today.
Lord Hunt of Wirral: My Lords, there have been a number of speeches, both in this House and in the other place, expressing considerable unease about remedial orders as originally set out in Clause 9.
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The noble and learned Lord may have noticed, however, that whereas, in the interests of good will and consensus, I have added my name to a number of government amendments, in this instance I have not done so. That is because I still believe the crucial question is how to make these orders work while avoiding any measures that a fair-minded person might deem to be disproportionate. I confess that I am still quite torn when looking at Amendment No. 36, in the name of the noble Baroness, Lady Turner of Camden, because that seems to be a step in the right direction. If these orders are to be effective, responsibility for them must be clearly allocated and accountability established.
We are dealing with corporate offences here, however, and on that basis we must focus just as clearly on corporate redress and corporate answers to the problems that have led to death. On balance, and with some reluctance, I am of the view, which I believe I share with the noble and learned Lord, that corporate measures will, and must, suffice.
Lord Goldsmith: My Lords, I am grateful to both my noble friend and the noble Lord. Having spoken to the amendment already, I want to make a couple of points. I have noted that my noble friend Lady Turner has indicated that she is not going to move her amendments. Notwithstanding that indication, she is still entitled to some explanation from me of why the Government are not persuaded by her arguments. That is only right.
First, the noble Baroness advanced, with diligence and clarity, the desirability of naming an individual to be responsible in effect for enforcement. While listening carefully to that argument, the Government have two problems with it. One of them is that which the noble Lord, Lord Hunt of Wirral, has identified: this is a corporate offence, and imposing the responsibility for compliance on an individual may rather confuse that issue.
The second problem is a practical concern. Given that it is a corporate responsibility, one would not want others in the corporations management to feel that it is nothing to do with them. There is something of a risk that if you identify a single individual, others may not feel that it is their responsibility. The Government take a different view on that from my noble friend.
The second point is my noble friends proposal that the courts should be able to require a convicted organisation to report back to them with details of the remedial steps taken. I can see why my noble friend advocates that, and I can see certain attractions in following that course, but it is not the way that our courts operate. They do not monitor compliance with sentences; whether they ought to in other areas is an interesting question. The closest we come to it is in relation to the very different area of drug testing orders, where there is some compliance by the courts. I had better not go too far down that particular road,
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I am not without sympathy for my noble friends point and the reasons behind it. I am grateful to her for indicating that she will not press her amendments, and hope that I have explained the position.
Lord Wedderburn of Charlton: My Lords, before the Minister sits down, is there not a third factor as well? Identifying a person will lead the Government to reconsider the secondary liability of individuals, which they have so far resisted, so naturally they resist identifying anybody because it might lead them to consider who had aided and abetted this offence. These things intersect, and the sooner the Government rethink the question of secondary liability, the better.
Lord Goldsmith: My Lords, that is not the reason for resisting the amendments. I am not sure what the proper expression is in this House for Good try, but I am not going back on what was said by my noble friend Lord Bassam.
(1) A court before which an organisation is convicted of corporate manslaughter or corporate homicide may make an order (a publicity order) requiring the organisation to publicise in a specified manner
(2) For the purposes of section 1 above, a senior manager of an organisation is reckless where as regards a circumstance or as to a possible result of an act he is or ought to have been aware of an obvious and serious risk that the circumstances or that the result will follow but nonetheless acts where no reasonable person would do so.
The noble Earl said: My Lords, Amendment No. 43 is designed to clarify the new law of corporate homicide as it will be in Scotland. If the Bill is to be used to amend the Scots law, it must do so sympathetically. These amendments have been inspired by the Law Society of Scotland and your Lordships are well aware that I am not a lawyer.
The amendment takes the bull by the horns by respecting the Scots law tradition of homicide being seen as a result of recklessness, while manslaughter is derived from gross negligence. Musing on that for half a minute, recklessness sounds fairly proactive: gross negligence sounds more passive. Errors of omission do not sound as though they fit terribly well with recklessness.
The amendment would avoid the incorporation of an offence of gross breach of the duty of care into Scots law, viewed by the briefing material as an unjustified innovationit may have been a more casual mistake in the drafting. Subsection (2) would establish a test of recklessness for senior management. In subsection (3), the punishment is widened from a finea monetary penaltyto either an admonition or, more usefully, a compensation order. While the Treasury and the court system are rightly the normal recipients of fines, there may be some popularity, locally anyway, in the provision of community facilities by a convicted organisation. This would become a useful and permanent memorial to those who have lost their lives in a corporate homicide incident. I beg to move.
Lord Davidson of Glen Clova: My Lords, I am grateful to the noble Earl, Lord Mar and Kellie, for raising the important issue of how the offence will operate in Scotland. It is useful to provide an explanation as to why the approach of corporate homicide has been adopted in Scotland. Similar difficulties are involved in the prosecution of companies in Scotland for culpable homicide as exist for prosecutions against companies for manslaughter in England and Wales and Northern Ireland.
The Scottish Court of Criminal Appeal in the Transco case confirmed that the identification principle applied under Scots law as the basis for finding a company guilty of culpable homicide, and, as in English law, the appeal court also expressly stated that the law of Scotland does not recognise the principle of aggregation, which would allow the conduct and states of minds of a number of people
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The problems posed by the current law have been considered comprehensively in both jurisdictionsin England by the Law Commission and then public consultation and pre-legislative scrutiny, and in Scotland, by an expert group set up by the Scottish Executive. The solutions that were arrived at had differences, but also common themes: the need to replace the identification principle with a new test for liability, the application of the offence to the Crown and an element of management failure to fix corporate liability
Clearly it is important that the new offence fits properly into the structure of Scots criminal law, and the Bill is drafted to achieve this. Perhaps most obviously, the offence will be known as corporate manslaughter in England and Wales and Northern Ireland but corporate homicide in Scotland. This reflects the different language for homicide offences in the two jurisdictions. There are other examples dotted throughout the Bill.
But I submit that this amendment goes beyond recognising differences in the Scottish legal system and proposes a fundamentally different approach to the new offence for Scotland. We are reluctant to go down that route in a reserved area. It would mean, for example, that companies would be operating under different regimes north and south of the Border.
We also have a number of reservations about how the different offence for Scotland would work. The heart of the problem for both jurisdictions lies with the identification principle. This Bill takes a significant step in removing that obstacle. I am concerned that this amendment would replicate at least some of the existing problems.
It is difficult to see how the test for recklessness, which is based on being aware of a risk or being in a position where a risk ought to have been appreciated, could be applied to a company other than through the conduct of specific individuals. Indeed, the amendment appears to contemplate that the court would need to identify particular senior managers who had been reckless. However, that would reintroduce the very element of identification that we are trying to get away from. As the Bill stands, the offence focuses on how activities were being managed across an organisation, at senior and junior levels and in terms of the systems and processes in place, not who was managing them. That is the fundamental shift in the law that the Bill offers but, with respect, this amendment would significantly undermine that change in Scotland.
We also think that it is right to underpin the new offence with the concept of gross negligence across the UK, including Scotland where gross negligence in fact formed part of the common law on culpable homicide in Scotland at least until the mid-20th century.
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