Corporate Manslaughter and Corporate Homicide Bill

My Lords, this has been a most interesting and high-quality debate and I am most grateful to all noble Lords who have participated for their wide-ranging contributions. I am also very grateful to noble Lords for their constructive tone; I trust that it is not just because of the festive season. I am pleased to say that this Bill was discussed in a very similar tone in another place throughout its time there, and I am sure that our discussions will continue in the same spirit as we proceed to Committee. I add my welcome to the noble Lords, Lord Cotter and Lord Lee, to the Front Benches. I also thank the noble Earl, Lord Mar and Kellie, for identifying me to the House. I am much obliged. Discussions in another place and here today reveal that while there may be differences of opinion in how we ensure that the law is effective in properly labelling and punishing organisations whose gross carelessness leads to death, few doubt that the current law is unsatisfactory. Many points have been raised today and I look forward to Committee, when they can be explored in greater detail. Now I shall briefly offer further thoughts for consideration on some of the matters raised. Very few of your Lordships have raised even tentative questions about whether the Bill will achieve its objectives. That is, I assume, because most noble Lords consider that the option to do nothing would leave in place a law that has been shown not to work, giving a great sense of injustice to the families of those who have died in terrible and avoidable circumstances. For the public to have confidence in the criminal justice system, the law must be effective. When an organisation has been grossly negligent in managing health and safety, with fatal results, manslaughter is the appropriate label. A conviction for a breach of health and safety is not enough; it does not do justice to the circumstances. I submit that juries will recognise when they consider these issues that, when there is an issue of importance and significance, juries will be able to convict in these cases. The concern that the noble Earl, Lord Mar and Kellie, pointed to may be unfounded. The noble and learned Lord, Lord Lyell, asked about the test for manslaughter and the question of risk. The test for gross negligence manslaughter is in essence an objective one requiring a gross breach of duty of care. Evidence of the defendant’s state of mind may well be useful in the case but is not part of the test itself. The noble Lord, Lord Henley, raised a point about duties of care under Clause 2(1)(c), to which the noble Lord, Lord Berkeley, also referred. Noble Lords asked whether the provision would apply to private organisations alone. I do not wish to get too much into the interpretation of provisions, but Clause 2(1)(c) makes no distinction in itself between public and private organisations and applies to both. While the offence is rooted in health and safety standards and does not require organisations to do more than comply with existing standards, we would hope that the creation of the new offence would send a message to organisations that pay no regard to health and safety standards, prompting them to think again. While corporation has no soul to be damned nor body to be kicked, as has once been said, corporations will at least be encouraged by the Bill to have a conscience. The noble Lord, Lord James, asks how that will save lives. I suggest that that is one way it may so operate. I give a similar answer to the noble Lord, Lord Lee, on his similar point. It is clear that if an organisation’s health and safety is managed well at the senior level, the offence will not apply. We believe this also supports the Government’s view that health and safety management should be led from the top. My noble friends Lord Sawyer, Lord Hoyle, Lord Rosser and Lord Whitty mentioned that point, and I share that observation with them. The eloquent welcome given to the Bill by my noble friend Lady Turner and the noble Lord, Lord Wedderburn, is extremely welcome. The notion that this Bill is a long time coming is correct. I shall talk generally for a moment about the application of the new offence to the Crown. We have taken the bold step of applying this offence to the Crown because we believe it should not be immune from prosecution for gross failings in the way health and safety has been managed. However, I urge your Lordships to focus on the types of incident this offence is aimed at, and resist seeing the Bill as a new way of challenging decisions of government and policy, or of providing new routes for holding public bodies to account for the discharge of certain difficult public functions. The civil courts have already recognised the difficulties inherent in those areas, and have been slow to impose duties of care in a number of operational areas. If one is looking for an area for challenge on the question of funding, I suggest that the importance of the Bill sets that to one side. The Bill builds on a bright line around a number of activities that, one considers, should not give rise to liability. I recognise that some of your Lordships believe the new offence should go further than it does, but I return to the point that the sort of cases that are not covered will involve the discharge of public functions in often difficult circumstances, frequently involving the question of ensuring the safety of others, and will frequently involve questions of balancing competing priorities and public resources. Those are a far cry from the circumstances that were the impetus for reform, which were cases involving workplace and employee safety, or circumstances in which organisations had chosen to offer a service or engage in an activity, and then had failed to take adequate precautions when carrying it out. The lifting of Crown immunity is a very significant step. It exposes government departments and other Crown bodies to prosecution for the first time, and brings their activities within the scope of the criminal law. This is plainly an area where one should move cautiously, even, I suggest, in cases of such difficulty as that of the most unfortunate death of Sergeant Roberts, as spoken about by my noble friend Lord Parekh and the noble Lords, Lord Tyler and Lord Hunt. The Bill represents a significant advance by bringing the Crown as employer and occupier within the offence when it is providing services or otherwise in a similar position to private sector organisations. It excludes the discharge of certain public functions, whether by government or wider public authorities, or indeed the private sector when in the same position. We should be cautious about extending this sort of offence to those other activities. A number of points have been made with regard to exemptions and Crown immunity. It has been contended that the exemptions are too wide. As I have said, the removal of Crown immunity is an unprecedented step. My noble friends Lord Parekh and Lord Berkeley, the noble Lords, Lord Cotter and Lord Lee, the noble Baronesses, Lady D’Souza and Lady Stern, and the noble and learned Lord, Lord Lyell, have all considered in their interventions the importance of this area, while not necessarily agreeing with the approach adopted in the Bill. The Bill comprehensively covers duties to provide safe systems for employees in the workplace for the Crown and others. It does not exempt Crown bodies from these duties. The Bill is not about judicial scrutiny of the way core government or public functions are carried out. The offence will not apply to: public policy decisions, for example the allocation of limited public resources; decisions about regulation and standards; or difficult public responsibilities such as law enforcement, detention, child protection and emergency services, as there is already a strong framework of accountability in these areas. Ministers are inevitably accountable to Parliament. There are public inquiries, coroners’ inquests and independent investigations by the Prisons and Probation Ombudsman, the Independent Police Complaints Commission and other bodies. The noble Lord, Lord Cotter, asked whether deaths caused through emergency services staff driving to emergencies would be covered. That raises the difficult point of determining where the line should be drawn in deciding what public responsibilities should be covered by the offence. The cases that we are talking about will be, by their nature, tragic. We need to be cautious. Public bodies such as the emergency services will seek to address those in peril. If they drive more slowly, they risk not arriving quickly enough at, for example, the scene of a fire. These are the difficult questions that arise in this area. The noble Lords, Lord Henley and Lord Hunt, and the noble Baroness, Lady Stern, addressed deaths in custody. This matter was debated at length in another place. Division on this showed strong support for the government position. I submit that there is a reasonable expectation that the Lords will swim to a degree with the tide of opinion. Tackling deaths in custody is a key priority for government. Initiatives for making custody safer include: suicide prevention co-ordinators in all prisons; development of new safer prison design, including ““safer cells””; and investment of £26 million, allowing physical improvements to be made at six pilot sites. Removal of Crown immunity means that the Bill comprehensively covers duties to provide safe systems of work for employees and in the workplace forthe Crown and others. Strong mechanisms for accountability exist. All deaths in custody are subject to an independent investigation; for example, by the Prisons and Probation Ombudsman and the Independent Police Complaints Commission. Indeed, all deaths in custody are also subject to a coroner’s inquest, in public, with a jury. These wider inquiries produce recommendations which drive improvements in the custodial setting. That is precisely the areathat the noble Lord, Lord Ramsbotham, referred to when he discussed sloppiness in custody. Existing mechanisms can identify such sloppiness, were it to arise. One accepts that there is a view from others who share our priority for improving safety in custody that we should add to this accountability through corporate manslaughter. We do not think that this will improve safety or that the courts are the right place to examine issues which go to the heart of government decision-making about matters such as funding of prisons and protecting the public. There is always a difficult confluence between operational matters and policy. It is important that these be kept separate, although it is not always easy so to do. The Bill is about the management of health and safety at work, not about scrutiny of the way core government or public functions are carried out. That, I submit, is Parliament’s role.