Corporate Manslaughter and Corporate Homicide Bill

My Lords, I very much welcome the Bill. In so doing I should declare two current interests. I am a member and occasional adviser to my trade union, the GMB, and I am the chair of the National Consumer Council. Workers, employees, customers, passengers and clients of organisations are likely to benefit from the Bill’s additional protection. I also refer to some past interests. More than 20 years ago, a few years after the Health and Safety at Work etc. Act was passed, I was responsible for health and safety in my union. The Act made substantial improvements in the procedures and management of health and safety risks in a large swathe of industry which up to that point had been subject to seriously high accident and exposure figures. By the early 1980s there was a clear gap in provision when the whole system failed and we were faced with a tragic death in a factory or shipyard. It took an awful long time to get from that point to this Bill. In 2000-01, I was a Minister responsible for health and safety. At that time this issue was very much discussed around Whitehall. There appeared to be arguments in Whitehall and beyond, probably put forward by the more precaution-inclined government lawyers, that we could not proceed very far down the corporate manslaughter path. I am very glad that Ministers have now brought forward this Bill to introduce a major deterrent and to protect people who suffer from substantial corporate negligence. I also welcome the Bill’s lifting of Crown immunity. There are arguments about how far that goes but we should recognise that large swathes of management and organisations in the public sector, whether in local government, housing, the health service or government corporations, are now subject to the same disciplines as the Bill extends to private sector management and corporations. That is right. As the noble and learned Lord, Lord Lyell, said, no one in those positions with a duty of care should be above the law. The following points are not new; most of them have been touched on. On the offence and the penalty, as my noble friends Lord Rosser and Lord Sawyer said, there is inevitably an issue about who is responsible, as well as of redress for the bereaved families of those who have tragically died. Accidents and fatal exposure do not occur in a vacuum but within the culture and structure of management of a company. They rarely come as a bolt from the blue that one cannot anticipate. They arise from a way of working, an attitude of mind and the priorities which the company sets. As the noble Lord, Lord James, says, responsibility for that rests ultimately with the leadership of the company—the board of directors. Accidents arise in a number of ways: through corner-cutting; a general atmosphere of sloppiness, as has been said; and a huge financial incentive to get the job done on time. All those can affect the situation, but they are also matters on which the leadership of the company or the public sector organisation have a role to play in ensuring that health and safety are not neglected while those other management objectives are pursued. Some industries have a higher level of fatalities and serious accidents than others and there may be difficulties with the way in which the Bill operates. Historically, the construction industry has been notorious for accidents. Although improvements have been made in recent years, there is still the problem that on a construction site it is not entirely clear which company is responsible for procedures or accidents. It has started to be the case in the construction industry, largely on a voluntary basis, that the head contractor takes responsibility for what goes on on site. I therefore assume that in those situations—it would be helpful to be given clarification on this by my noble and learned friend the Minister—offences of corporate liability and corporate manslaughter would apply to the head contractor and would not necessarily be passed down through a whole network of overlapping subcontractors on a site. Agriculture is another sector in which I used to have responsibility and where the number of incidents is too high. In that case a corporation is rarely at fault. Again, an attitude of corner-cutting and general sloppiness within the industry needs to be addressed. Other sectors come into this category. One that was recently drawn to my attention by the GMB was waste management, where subcontracting is involved and where the recent landfill regulations and other regulations regarding the disposal of waste have led to serious corner-cutting, cost-saving and accidents both in transportation and the handling of heavy and dangerous materials. I think I am right in saying that in a recent quarter there were five fatal accidents in the industry. Although it has a small number of employees, there is obviously very high risk. Again, it is important that the culture of the industry changes. That culture is set largely by the directors of the industry’s major firms. It is therefore important that we take on board the point made by other speakers; namely, that while the offence of corporate manslaughter and the penalties in the Bill are important, it is also an important complementary approach to recognise in law the responsibility of directors. When we abandon—rightly, in my view—the need to identify the personal responsibility of a manager or director for the health and safety system that caused the incident and the death, we should not absolve the board of directorsas a whole from the responsibility for setting the climate and priorities for the health and safety regime which operates in their areas. Therefore, I hope that the Government will give further thought to the suggestion put forward by the Joint Select Committee regarding secondary liability for directors in these circumstances. On exclusions from the measure, I shall not repeat what was said on prisons, and expressed much more eloquently, by the noble Baroness, Lady Stern, and the noble Lord, Lord Ramsbotham. However, there are issues in that regard. I am also a little concerned that the Bill appears to exclude all non-incorporated bodies when some substantial non-incorporated bodies employ people and have a duty of care to people on their premises or to their patients or clients. I am not sure whether the Government are minded to include those organisations through amendments to the Bill or in an extension of the legislation. On penalties, the reference to an unlimited fine is not unique: it has appeared before. It would be interesting to hear the Minister respond to the point that I believe was raised by my noble friend Lord Rosser on whether an unlimited fine in this context means anything different from what it means vis-à-vis the Health and Safety Executive’s ability to prosecute health and safety offences. Under previous legislation, fines for these offences have in most cases been relatively low. As my noble friend said, small employers have largely been hit by this. Therefore, the question of means comes in. Nevertheless, it is important to recognise that if larger corporations are subject to such penalties, unlimited fines should mean what it says. I am not sure whether there should be gradation of fines in those circumstances. Clearly, the degree of responsibility will vary. While I was fascinated by what the noble Lord, Lord James, said, I am not sure that I entirely agreed with what appeared to be his conclusion; namely, that if there was a clear financial incentive to adopt the procedure that caused the death of an employee or somebody else, it would be a more serious offence—akin to murder—than the offence of causing a death through general sloppiness. The result is the same and in a sense the responsibility is the same. If general sloppiness is the culture of the organisation concerned, the death is caused by those who set that tone and those priorities. I accept that there may have to be guidelines in the gradation of penalty and that alternative or escalating penalties will need to be considered. The issues of reputation and of naming and shaming, when thefull penalty is perhaps not exerted, are also very important. Professor Macrory is about to report on alternative remedies. We need to be creative in considering alternative and perhaps lesser remedies when the equivalent of gross negligence is not proven, and in the novel use of remedial orders. Indeed, the National Consumer Council, of which I am chair, recently suggested the use of such reputational and other remedies in various areas of regulation. Where we cannot prove the ““big issue”” of a corporation’s total responsibility, we may be able to exert—post, if you like—other remedies to ensure that that corporation recognises the importance of breaching its duty of care, even if the full penalty is not appropriate in the circumstances. With those qualifications and questions to the Government, I very much welcome the Bill. I hope that there will be room for some improvement or at least for discussion. As for directors’ responsibilities, I hope the Government will recognise, either in this Bill or in another way, that that is another dimension and another gap in the health and safety regime that needs to be rectified. Workers and those who use the services of corporations will be somewhat more protected as a result of the Bill’s passage into law. I congratulate the Government on reaching this point.