Corporate Manslaughter and Corporate Homicide Bill

I thank the noble Lord, Lord Hunt, for his opening remarks, which were very kindly addressed to my noble friend Lady Scotland. I am afraid that she is unwell. Members of the Committee have a rather untried and untested substitute speaking for the Government today. I shall endeavour as best I can to deal with the various questions and points that have been raised during what I fully recognise is an important opening debate. I very much appreciate the consensual approach that has been adopted thus far, because I think that there is a comity of view and a collective desire to reach a satisfactory outcome in this important development of the law on corporate manslaughter. I think that we are all heading in a similar direction of travel and that we are in essence finessing the detail to make the measures as powerfully applicable as we constructively can. That is a good way of approaching something with which we have been wrestling for some years. As has been well explained by all contributors to the debate, the amendments would extend liability for the offence in Clause 1 to unincorporated bodies and, in the case of the amendments in the name of the noble Lord, Lord Hunt, to public authorities. As the Committee will be aware, the question whether to bring unincorporated bodies within the ambit of the legislation was carefully examined by the Law Commission. It pointed out that there is a wide array of unincorporated bodies, from a large legal or accountancy partnership with many hundreds of employees to a partnership of perhaps just two individuals with no employees. The commission concluded that the right course would be to legislate for a corporate offence, as we have proposed in Clause 1, and to consider how it operated in practice before deciding whether it was sensible to extend the offence to unincorporated bodies. The noble and learned Lord, Lord Lloyd, spoke in much the same spirit: let us get the legislation in place and then see how it works. However, it is clearly important that we have this debate and give the matter further thought. This Committee gives us that opportunity. To put the contrary argument at its most emotive, bereaved relatives would find it hard to understand why, by virtue of the legal persona of the organisation that they considered to be responsible for a family member’s death, it was not possible to prosecute that organisation for the offence of corporate manslaughter. It can be of no consequence to a bereaved family that the organisation allegedly responsible for the death of a loved one is, let us say, a partnership rather than a public limited company. What matters to them is the need for that organisation to be properly held to account. I accept that there is force in that argument, but, as the Law Commission advised, we need to proceed with some caution. The new offence identifies a corporate liability that attaches to the separate legal entity of the corporate body. This does not exist in the case of an unincorporated body. In the case of companies and other corporate bodies, there are clearly defined responsibilities on the part of those managing the organisation and the organisation itself. That provides a basis for holding a corporate body to account on the ground of management failure. However, unincorporated bodies exist as a group of individuals, with no distinction between collective and individual liability. I do not make these points to argue that the offence cannot extend to unincorporated bodies. Unincorporated bodies can clearly be prosecuted for a range of statutory offences, commonly in the regulatory field. However, this offence is designed not to enforce a particular regulatory regime but to impose a specific liability on an organisation. I am also conscious that, as the Government set out in their response to the pre-legislative scrutiny report on the draft Bill, there is little evidence of a significant lacuna in the law. Health and safety enforcement activity is generally low in the sectors where unincorporated bodies are generally found. They are also commonly smaller organisations, where individual liability is likely to provide a suitable sanction. For example, of approximately 570,000 partnerships, 535,000 employ fewer than 10 people. Moreover, the application of the offence to corporate bodies is wider than is often understood. It is not the case, for example, that hospital trusts are not covered—these are corporate bodies. Schools, which are specifically picked out in the amendment in the name of the noble Lord, Lord Razzall, are broadly covered by the offence either through the corporate status of local education authorities or of school governing bodies. Industrial and provident societies such as co-operative or benevolent groups have a corporate status under the Industrial and Provident Societies Act 1965, as do friendly societies registered under the Friendly Societies Act 1992. However, the law of manslaughter does not at present apply to unincorporated bodies and we would be extending the law to them for the first time. Some care needs to be taken here as it is likely to bring a wide range of smaller bodies under the law for the first time. We do not want this legislation to deter local informal clubs or societies. Many of those will owe health and safety duties, but in important respects those apply only to organisations that are employers. The Government recognise that there have been wide calls for the new offence to be extended to unincorporated bodies. I have set out why we have approached this in the way we have done so far and why we should act with caution. However, we are prepared to explore some extension of the Bill. I note that the noble Lord, Lord Hunt, seeks to make a link with health and safety legislation. There may well be something in this approach that we will want to explore further. That said, I do not want to raise expectations that any government amendments on Report would be quite in the terms set down here, but suffice it to say that I have a good deal of sympathy with the points that the noble Lord has made. It is probably safest at this stage to say that we will take this away and give it further thought; then perhaps we could invite the noble Lord to a further discussion before Report, when we have firmed up our own thinking. That is the traditional, consensual way of doing things as a Bill progresses. I should, however, put it on record that I do not accept the case for adding an express reference to public authorities to the list of organisations in Clause 1. The Bill already makes very comprehensive provision in this respect; that has been generally acknowledged but perhaps not as well understood as it might have been. The offence will apply automatically to a wide range of public authorities by virtue of their being corporate bodies—and the Bill applies to these, whether part of the Crown or not, without further provision. This includes authorities as diverse as local government, National Health Service trusts and other NHS bodies, police authorities, and a wide range of non-departmental public bodies. This last group is too numerous to list but a few examples might suffice to demonstrate the wide coverage: the Health and Safety Executive, the Parole Board, the Civil Aviation Authority, the Charity Commission, Ofsted, the Human Tissue Authority and the UK Film Council. That is a pretty broad range of organisations. Indeed, as few of these organisations have Crown immunity as the law stands, they are already liable to prosecution for gross negligence manslaughter. Specific provision is included in the Bill to deal with police forces, which are not corporate bodies and, in Schedule 1, with individual government departments and similar bodies, which again are not incorporated. In particular, in the case of government departments, there is benefit in clearly identifying those bodies that can be prosecuted for the offence so that the position of departments and subordinate bodies is clear. It would not be helpful to have an overlapping provision in the Bill, undermining the clarity of the schedule. Such a provision would also give rise to confusion over the position of, for example, various statutory office holders and corporations sole which, as specific individuals, are not covered by the offence but are public authorities none the less. I am satisfied that the Bill already makes adequate provision to apply to the Prison Service—a particular interest of the noble Lord, Lord Ramsbotham—and that further provision to list it in Schedule 1, as proposed in Amendment No. 21, is therefore unnecessary. The other bodies that the noble Lord referred to are also covered. Our approach to the schedule is to list all government departments, but executive agencies such as the Prison Service are not listed separately, except where they are also non-ministerial departments. Executive agencies are properly part of their parent department; that is how that part of the Bill works. There is a degree of managerial independence, but no formal separation. It is not our intention, in applying this offence to the Crown, to alter the relationship between departments and agencies by introducing any formal separation through the provision of independent criminal liability. However, the listing of a department covers its associated agencies and the schedule therefore leaves no lacuna. The Government recognise the strong public interest in ensuring that government departments and other Crown bodies are clearly and openly accountable for management failings on their part. The Bill’s proposals for lifting Crown immunity represent a significant and unprecedented step, ensuring a level playing field for public and private sector employers under the new offence when they are in a comparable situation. In particular, the Bill ensures that the Crown’s responsibilities as employer and occupier will be widely covered by the offence. That represents a considerable extension of the law and will enable Crown bodies to be prosecuted for gross failings to ensure safe working practices for their employees or safe conditions in the workplace, where these have had fatal consequences. This will provide new, important opportunities for bereaved families to receive justice where Crown immunity currently leaves no scope. The broad and often unique responsibilities and activities of public bodies that affect the public raise more difficult questions. Public bodies frequently operate under a framework of statutory duties, requiring them to perform particular functions. They must often allocate resources between competing public interests with little, if any, option of deciding not to perform particular activities. Public bodies will also often hold special authority or perform functions that the private sector does not, or cannot, do on its own account. We would all accept that those functions must be carried out in the wider public interest. That has been a long response to the points made. I hope that it has been as comprehensive as I imagine it to have been.