Corporate Manslaughter and Corporate Homicide Bill

My Lords, not surprisingly, I am interested in the Scottish aspects of the Bill. I am very pleased to note that the noble and learned Lord, Lord Davidson of Glen Clova, who has been misdescribed as the Lord Advocate when in fact he is the Advocate-General for Scotland, will wind up the debate. There is a fair point for you. This must be one of the first times that I have come across a Bill affecting the Scots common law which has no separate text for Scotland. No doubt the reason is that the Bill is supposed to be United Kingdom law, although that was not the original intention. That brings me to my first point, which is that the Bill appears to have a rather dodgy—perhaps I mean rickety—constitutional basis, because criminal justice is rightly devolved but health and safety is reserved. That is not the only occasion for such weak logic: perhaps the most famous is the reservation of abortion despite the devolution of criminal justice and health. Nothing of what I have said so far means that I am against the aims of the Bill. However, I wonder about the willingness of a jury to convict a corporate body without the ability or need to pin the blame on any individual. I can see that the philosophy behindthe Bill is right. I know that the culture of an organisation can be far from its headline stance. I just wonder whether any prosecutor will be able to make an unchallengeable case that the organisation was deliberately sloppy or not bothered about health and safety issues. Presumably, identifying intent will be an essential part of the prosecution. The Bill is unusual in that it tries to marry the criminal law with the civil law. I believe that the duty of care is a civil law concept. I am well aware of that duty of care in the context of my being a landowner in Scotland. I recognise that it is very broad in its extent, reaching out well beyond those invited on to land in one’s ownership, including those there by right and extending even to those whom I may have attempted to forbid to be on that land or who are breaching the terms of that access. Therefore, I see some difficulty in defining the duty of care in the context of the Bill. I believe it to be wider than just the staff and customers. This morning, I was nudged by a report on Radio 4 that the National Trust was still waiting for a judgment on the death of an eight year-old caused by a falling tree on land owned by the National Trust. Indeed, the House discussed that during Questions today. Although I recognise that an annual tree survey is a new imperative, especially on access land, Iam concerned that the prospect of corporate manslaughter charges will have an unnecessarily severe outcome for older trees and for the landscape in general. At present, those who manage electricity power lines are cutting ever greater swathes through the countryside, thereby altering the appearance of the landscape, in the name of safety. That affects not only conservation bodies such as the National Trust but the forestry firms and woodland management companies that undertake tree surveys and advise corporate as well as private landowners. I remind myself that on a windy day in the Sauchie area of Clackmannanshire, a tree blew down 30 seconds after I had walked past it. On a more minor Scottish note, I understandthat Scottish Partnerships has a distinct legal personality—or so the Law Society of Scotland has encouraged me to believe—and so should be added to the business associations relevant to the Bill. I acknowledge that that is not the case in England. My final point is about the punishment. It seemsto be restricted to an unlimited fine. That couldbe broadened to include adverse publicity orders, community reparation orders and automatic notification to Companies House. I certainly feel that if the local community rather than the Treasury could benefit, there might be a greater sense of justice. I should also like some specific reference to which senior person is to attend the court for the momentof sentencing, rather than just the organisation's lawyers. The Bill makes a good stab at something which is clearly desirable. Whether an unchallengeable case can be made is the real dilemma for a jury. Perhaps enough witnesses will come forward, but there will be many hoping to pressure such witnesses against such an action. I still feel that juries will feel happier deciding about the actions of an individual and that person's individual liability. Certainly the Law Society of Scotland would like a personal liability element to be included in the Bill. I look forward to the next stages, and to the intervention from my noble friend Lord Tyler in the gap.