Corporate Manslaughter and Corporate Homicide Bill

I suggest that there is merit in the thinking behind the amendments of the noble Lord, Lord Razzall, partly because the precise formulae and mechanisms of the Bill as it stands were materially altered by the Government in another place. Without going into the history of that, these amendments question whether we have quite got it right. I understand entirely what the noble and learned Lord, Lord Lloyd, says about gross negligence and manslaughter. Indeed, I would not dare suggest that his list of authorities is in any way deficient. I merely remark that, for civil lawyers as great as Lord Justice Scrutton, ““gross negligence”” was a very curious phrase—he called it negligence associated with a vituperative epithet. Criminal lawyers have gross negligence pretty well moulded in their hands. With respect, I do not think that that is the problem, although I recognise the amendment’s drafting problem that the noble and learned Lord addressed. The Bill is essentially supplanting the old test of directing mind and will, which is required for corporate liability as the law stands. That gives rise to the question of whether the test before us is right in the way that the noble Lord, Lord Razzall, suggested. At the moment, we have to find that some gross error on the part of senior management, as defined, is a substantial element in a causative sense of the death that has occurred and that the other requirements of the Bill are manifest. There is a problem not only with the amendment, but also with the Bill as it stands in this respect. Unless the failure required for liability is properly framed—and we should remember that it has, by hypothesis, caused the death of a person or persons—it will be easy for those who control small or giant organisations to delegate the issue of safety down to a level other than their own. It is not sensible to allow that without careful conditions, and the Bill might benefit from the approach suggested by the noble Lord, Lord Razzall. The noble Lord mentioned the Centre for Corporate Accountability, which has done a great deal of work in this area. It suggests that the Bill, even as it stands, allows for delegation of issues of safety to some medium or even low level. That would not encompass liability for manslaughter, even if a large number of deaths occurred through failure of the management organisation. Safety is a central issue, which the board of directors and those at a high level should consciously address every time they meet. Whether the Bill provides for that is something that the amendment tabled by the noble Lord, Lord Razzall, brings before our eyes. Noble Lords should think carefully about the issue of delegation and whether senior management or directors should be allowed to delegate and escape liability for the corporation. I am not sure that the approach of the noble Lord, Lord Razzall, would not make it more difficult to delegate than the Bill now allows.