Corporate Manslaughter and Corporate Homicide Bill

The creation by this House of a new offence of unlawful killing is a very serious step. The caution mentioned by the noble and learned Lord, Lord Lyell, and the contributions of my noble friend Lord Wedderburn and my noble and learned friend Lord Boyd will have indicated, I am sure, to the Minister that we are concerned that this clause as it stands or as amended should not become the same source of legal debate as has led to the unfortunate results of prosecutions in the past 10 or 15 years. It would do Parliament no good to enact yet another such saga into our criminal law. I submit to your Lordships that the two tests that we shall be applying to the clause as it stands and to these amendments are, first, whether there is created an offence that fairly and reasonably attributes criminal liability to a corporation, and, secondly, whether, once drafted, it can be effectively prosecuted. I draw the attention of the Committee to the fact that at the moment the corporate manslaughter cases that have failed have done so mainly because it was impossible to show that there was what is called a directing mind over different components available to one—there was no directing mind that could be identified in the company structure that would found a fair attribution of criminal liability. When this offence, in its final form, goes to my colleagues at the Bar and to the solicitors’ profession, the first thing that they will say is, ““How does this differ from the ‘directing mind’ test?””. That test helps corporations; there have been many acquittals because of its difficulties. The noble Lord’s amendments illustrate the concern that we should be prepared for legal dissection of the clause with passionate intellectual intensity. Let me give some examples, which the amendments of the noble Lord, Lord Razzall, seek to avoid, and very nearly successfully do so. What is the difference between ““directing mind”” and ““senior management””? Here the test of the offence requires involvement of senior management and, lest we forget, ““senior management”” is defined in Clause 1(4) as, "““persons who play significant roles in—""““(i) the making of decisions about how the whole or a substantial part of its activities are to be managed””." Take a national construction company with 10,000 employees. That definition immediately restricts the senior management test to the ones on top—those who command the whole or a substantial part of planning or management and who are supposed to deal with safety. What is the difference between that and the directing mind? The Government have to consider that. On delegation, the noble and learned Lord, Lord Lyell, was hoping that no one could get away with saying, ““I delegated it””, but why not? A company exists to delegate its functions down the line in order to make the exercise of its activities for shareholders effective and profitable. The only way in which one will catch delegation is in Clause 1(3), by being able to show that the way in which senior management dealt with the activities of the company was, "““a substantial element in the breach””." That is an extremely nebulous phrase. It possibly goes backward a step. First, one has to get over the effect of a directing mind; if one has shown that there was such a directing mind in senior management, the way in which senior management had done things would then be an additional factor to be proven. Like the noble Lord, Lord Razzall, I wonder whether we ought not simply to consider deleting the word ““senior”” from subsection (3). If we do not, we must consider what the provision adds. If we do, why should we not simply delete subsection (4)(c) as well in due course? I do not suggest that we do that now, but I am convinced that the trade unions that represent people in the construction industry will be very concerned about the fact that what the ordinary worker does in his daily activities is the responsibility of the company, and not of its senior management or directing mind, provided that the company is held firmly liable. These are very serious matters. I am grateful to noble Lords for the patience that they have shown in listening to me. Prior to Report, I hope that those who are interested in this matter can seek to come to a definitions section that accords with the wishes of all.