Corporate Manslaughter and Corporate Homicide Bill

moved Amendment No. 1: 1: Clause 1, page 1, line 3, after ““organisation”” insert ““including a public authority”” The noble Lord said: First, may I say how sad—but how pleased—I am to see that the Minister who will be responding today is the noble Lord, Lord Bassam? I am sad because I understand that the noble Baroness, Lady Scotland, has been taken ill. Will the noble Lord send our very best wishes to her for a speedy recovery? However, I am pleased because I know from previous experience how amenable the noble Lord is to sensible, carefully argued amendments. Therefore, we look forward to hearing his responses. I declare my interest as set out in the register, in particular as a partner in the commercial law firm of Beechcroft LLP. Moving Amendment No. 1 gives me the opportunity to confirm what my noble friend Lord Henley said at Second Reading—that we are very supportive of the Bill but would like to see it improved. In the other place, in the debate on 4 December, Gerry Sutcliffe, one of my parliamentary colleagues for many years and the Member for Bradford South, said this in explaining the Bill: "““The driving force behind the Bill is the fact that the current law of corporate manslaughter is based on too narrow a definition of corporate liability. The law works reasonably well for small organisations, but it does not reflect the reality of decision making in large or complex organisations, where failures in the management chain can rarely be laid at the door of a senior individual manager. It is important to understand that point, because it underpins the Government’s approach””.—[Official Report, Commons, 4/12/06; col. 67.]" That is an approach with which the Opposition agree. I have been interested in this subject for many years, and I have the honour to be president of the All-Party Group on Occupational Safety and Health. This is a piece of legislation to which we have been looking forward for some considerable time, which underpins why it is so important that we get these provisions right. We seek to insert the words in Amendment No. 1 in page 1, line 3, so that the offence applies to an organisation ““including a public authority””. The Bill removes Crown immunity but, at the same time, includes a whole range of wide exemptions that act principally to provide effective immunity to public bodies that cause deaths of members of the public in a wide range of circumstances, however grossly negligent their conduct might be. In its recently published report, the Joint Committee on Human Rights noted that the combined effect of provisions in the Bill restricting the definition or the scope of the application of the offence is substantially to restore the legal or de facto immunity from prosecution enjoyed by many public bodies under the present law. Therefore, on the one hand we see Crown immunity removed and on the other hand we see it back in, in a whole range of ways. In summary, the Bill will prevent a whole range of possible deaths from resulting in a prosecution, however negligent the public body involved has been. It is right also to mention deaths in prison or police custody, although we shall deal with that issue in greater detail when we come to later amendments, including Amendment 21. I think it vital that we explore the extent to which public bodies should be exposed to a possible offence of corporate manslaughter. I am sure that, in some cases, it would be ludicrous to open up public bodies to such an offence; for example, there is no question of including the Armed Forces on active deployment. Yet, if the Bill remains as it is, a higher value will be placed on the duty of care in the incorporated, private sector than in the public sector in the eyes of the law. The perpetrators of a gross breach of a duty of care towards an individual in public custody would therefore face a lesser penalty than the perpetrator of such a breach in the private sector. As I said, the Minister in the other place stated: "““The driving force behind the Bill is the fact that the current law of corporate manslaughter is based on too narrow a definition of corporate liability””.—[Official Report, Commons, 4/12/06; col. 67.]" Therefore, I hope that, when the noble Lord replies to this debate, he will assure us that he will not shy away from what I believe is an admirable principle of extending the scope by maintaining a narrow scope in the public sector. Indeed, the draft Bill said that the Government need to be clearly accountable when management failings on their part lead to death. The exemptions in the Bill as it now is denigrate the value of that duty of care. JUSTICE has given us some strong arguments, including the following comment: "““To create such an exception is to state that in those circumstances gross negligence causing death on the part of a corporation is lawful under the criminal law””." The London Criminal Courts Solicitors’ Association has criticised the various exemptions, stating that, despite the removal of Crown immunity, many Crown bodies will not be properly held to account for deaths arising out of their management failures. The European Convention on Human Rights is an issue here, as the lack of inclusion of public bodies could amount to a breach of Article 2, which protects the right to life, and Article 13, the obligation to provide an adequate and effective remedy in respect of breaches of the right to life. We have also received a detailed brief from the Centre for Corporate Accountability, but I know that many of those who wish to participate in this debate will refer to a number of the arguments that have been made to us, as well as their own views. The new and improved version of exemptions set out in Clauses 4 to 7 has confused rather than clarified the definition of ““public functions””. In Standing Committee in another place, the Government stated that the new clauses were a reaction to the criticisms by the Home Affairs Committee and the Work and Pensions Committee of the vague ““exclusively public functions”” exemption. However, the way in which the Bill is currently set out creates confusion, as Clauses 4 to 7 describe one type of exemption while Clause 3(2) covers general exemption. It is difficult for us to follow that. I hope that the Minister will reassure us on all those points. This group of amendments also covers unincorporated bodies. I thought of degrouping them but I hope that, as we are talking about scope, the Committee will agree that it would be helpful now to refer to the amendments relating to unincorporated bodies. These amendments are of course in the names not only of my noble friend and myself, but of the noble Lords, Lord Razzall and Lord Lee of Trafford. Unincorporated bodies have not yet been included because, as the noble Baroness, Lady Scotland, said on Second Reading, they, "““do not have a separate legal identity, and the question, therefore, of finding a separate corporate liability takes on an odd character in this context””.—[Official Report, 19/12/06; col. 1899.]" I contend that an odd legal character is no reason for exempting a substantial number of companies to which this law could apply. It is of course not true that all unincorporated bodies lack a distinct legal personality. The Law Society has put the effective point to us that partnerships and trade unions have distinct legal personalities. The change of personnel at the top may be no more frequent than in a company. We must consider that point. Legislation such as the Disability Discrimination Act 1995 and the Health and Safety at Work etc. Act 1974 already applies to unincorporated bodies. In its evidence to the Home Affairs Committee and the Work and Pensions Committee, the Law Society said that it felt that the exemption of unincorporated bodies appears to be discriminatory and unjustifiable. I agree. In its consultation of 2000, the Government agreed that the Bill should apply to the undertakings of all bodies. It said that it did not wish to create artificial barriers between incorporated and non-incorporated bodies. Against that background, I was therefore pleased to hear the noble Baroness say at Second Reading that, if a sensible way could be found for the Bill to take a wider position, the Government would seek to bring amendments forward. Perhaps the Minister might give us more detail, to assist us in understanding how long we must argue this point before the Government concede it. Amendment No. 20, in the name of my noble friend and myself, proposes proceedings for considering an offence by an unincorporated association or non-Crown body. Subsection (1) ensures that, where such a body was prosecuted, it would be under the name of that body rather than that of an individual. Subsection (2) ensures that any fine imposed on conviction would be paid out of the funds of that body and not imposed on an individual. I hope that that amendment meets with a positive response, even if the other amendments on this issue do not. We have seen a detailed brief from Liberty on this point, to which other noble Lords may want to refer. I am grateful to Liberty for having given us such detailed and helpful information. Given the extent of the offence, one should not be trying to exclude a series of organisations within the public or private sectors from the consequences of their decisions, acts and omissions. That people should be held to account is a well recognised principle. I am concerned that the Bill has not got it right, and so I beg to move.