Corporate Manslaughter and Corporate Homicide Bill

The Liberal Democrat spokesman, the hon. Member for Kingston and Surbiton (Mr. Davey), mentioned Scotland in his speech. It is worth reminding the House how Scotland ended up being in the scope of the Bill. The Centre for Corporate Accountability, which other hon. Members have mentioned, summed up the position rather well:"““Ever since the Law Commission first discussed reform of the law of manslaughter in 1994, it has always been assumed that there would…be separate legislation for Scotland. The sudden decision to include Scotland in this Bill””—" the Bill before the House today—"““raises the question of how the Westminster Parliament can now legislate on corporate homicide, clearly a criminal law issue, where Scotland has long had separate laws and process from England and Wales. For this reason, CCA questions the soundness of the decision to include Scotland in the scope of the Bill.””" Let me recap the chronology up to the present point. In 2005, the Scottish Executive published a report on corporate homicide by their expert group. The report was welcomed by the Labour-Liberal Executive and by the whole Scottish Parliament, yet the Executive took no action themselves. Instead, they deferred to the UK Government in support of the then draft Corporate Manslaughter and Corporate Homicide Bill, which did not amend Scottish common law. In June this year, the Labour MSP Karen Gillon introduced, with all-party support, the Culpable Homicide (Scotland) Bill, which set out the criteria by which an individual may be guilty of culpable homicide, what offences were considered to constitute culpable homicide and how an organisation may be held liable for those offences. She revised the Bill in early September, but then withdrew it on 29 September, only a short time ago. It is worth pointing out that the Scottish Bill enjoyed extensive support among unions in Scotland and in the rest of the UK. At that time, they felt that the Bill before us—referred to as ““the English Bill””—did not go far enough in creating a deterrent against endangering workers and citizens alike. Indeed, the Transport and General Workers Union, to which a number of Labour Members have referred, says that it "““firmly believes that the Scottish Parliament should support legislation which will hold negligent employers and the individuals who hide behind the corporate veil to account.””" However, we are where we are, and this is not a Scottish criminal Bill, but a UK health and safety Bill. I have listened to all the comments made by Members on both sides of the Chamber, and although there is unhappiness about some of the wording, there is genuine relief that we have something with which to work. There are concerns that are common to Members on both sides of the Chamber. One is the lack of personal liability—the hon. Member for Lanark and Hamilton, East (Mr. Hood) made that point best. Other Members spoke about the difference between private organisations and some public bodies. There is the issue of the legal arguments about the fact that there is still a requirement for a duty of care. The hon. Member for Eccles (Ian Stewart) put it best when he described the inconsistency whereby individual directors were charged, prosecuted and convicted under certain claims, but not under corporate homicide, when the death of an individual or individuals occurred. I shall briefly discuss the Scottish position, before commenting on the issue of senior managers, as I suspect that that will form the basis of the most significant debates in Committee and on Report. In Scotland, it is possible to convict a company of a common law crime if the prosecution can identify an individual or a group of individuals who were the ““controlling mind”” of a company—that is, whose acts and state of mind could be said to be that of the company itself—and who were guilty of that crime. The new Bill certainly removes the need to prosecute an individual before prosecuting an organisation, which is welcome, and it bases an offence on the way in which organisations are managed and organised. However, for the new offence to be committed, it is not sufficient that the death was caused by a gross breach in the way in which an organisation was organised and managed; the failure must have been, or must be, at a senior manager level. The senior manager is defined as a person who"““plays a significant role in…the making of decisions about how the whole or a substantial part of””" the organisation’s"““activities are to be managed or organised, or…the actual management or organising of the whole or a substantial part of those activities.””" In effect, that means that under the Bill only failures made by the most senior managers of a company would result in a company being prosecuted for corporate homicide. It means, too, that however serious the failures outside the management circle, the company may well escape prosecution under the legislation. That poses a danger because, while small and family businesses, and businesses with simple management structures, may be easily subject to the new law, as they were with previous measures, large companies with complicated management structures may well escape prosecution. Actions taken on their behalf by junior managers—perhaps by foremen, particularly on building sites—that lead to the death of individuals could result in a company escaping prosecution.