Corporate Manslaughter and Corporate Homicide Bill

I have listened with great interest to this debate. As ever, the lawyers have set my mind working on how best we can respond. Obviously, some concerns about the drafting have been expressed, which we well appreciate. I shall try to set out as fairly as I can the Government’s thinking on this matter. As the noble Lord, Lord Henley, said, there was not perhaps as full an opportunity in another place as we would have liked to explain why the Government had made their amendments. I shall take us through some of those reasons and try to address some of the issues that have been quite fairly raised today. The amendments certainly go to the heart of the new offence. It is important to make clear how the Government intend the new test of liability to work. We are grateful that the amendments have been tabled to enable us to set out our intentions. The current law fails because it requires the full fault in a case of corporate manslaughter to be found in one individual. This simply cannot reflect the way in which decisions are made in modern organisations, other than in very small ones, which is why only very small organisations have ever been convicted under the current law. The intention of the new test, as I am sure all Members of the Committee will understand, is to ensure that all the circumstances that led to the death can be put before the court, rather than just the actions of a single individual. We want the new test to ensure that gross failures that are properly the responsibility of the organisation can form the basis of liability, but we want also to ensure that not every work-related death will result in a conviction for manslaughter, even where there has been gross negligence by some individuals. For example, companies should not be blamed where individuals have behaved in grossly negligent ways outside good and safe processes. So the test must properly capture corporate failures, not individual ones. The new test in the Bill is the Law Commission’s test; it introduces an entirely new way of attaching criminal liability to corporations based on failures in the way activities were managed or organised by the organisation. In looking at how an activity was managed or organised by the organisation as a whole, the prosecution would have to examine how the activity was being managed at all levels, including the senior level. Without further amendment, we doubted that gross negligence would be found in the organisation overall unless there were failures at the senior level, but we were concerned that this was not clear in the Bill. The Law Commission noted that there would be a somewhat fine line between an employee’s ““casual”” negligence and a management failure. We were concerned that such a fine line was not acceptable in a criminal offence as serious as manslaughter, and that organisations should be clear about the circumstances in which the offence might bite. To address this, we put the requirement in the Bill that there was a failure at the senior level. We think that this is important because we believe that without such clarity the offence could lead to risk aversion; we also think that it is right in principle that organisations cannot be guilty of corporate manslaughter without fault at the senior level. One of the key concerns of employer organisations is that, despite the good and conscientious management of health and safety by senior managers, somehow their organisations may be found guilty of corporate manslaughter. A key reassurance has been this part of the Bill. Organisations want to be sure that, if they are managing health and safety properly, they cannot be found guilty of the offence. Making the offence contingent on fault at a senior level sends a powerful message about the importance of good management high up, and most organisations will respond to that positively. There has been much discussion about delegation. I should like to make an important point about this, which has been raised in another place and raised again here. We need to distinguish between the delegation and the abdication of responsibility. What is not acceptable is the abdication of responsibility for health and safety—I think that we are all agreed on that. I fully support the sentiment behind the amendments aimed at ensuring that organisations are not able to abdicate health and safety responsibilities to avoid liability for this new offence. We would be very concerned if the Bill made that a possibility, or, worse—as has been suggested—actively encouraged some organisations to delegate inappropriately. The Government recognise the importance of health and safety being led from the top of organisations. The noble Lord, Lord Razzall, made that point at the outset. At the same time, they do not want organisations to believe that no management of health and safety can be delegated. Appropriate delegation and appropriate supervision of such delegation is part of the proper management of health and safety, a point made by the noble Lord, Lord Brennan. However, inappropriate delegation of health and safety responsibilities will not be a legitimate defence to a charge of gross negligence. The courts will be able to consider how the activity was managed at senior level, and if the answer is that those at senior level failed to manage health and safety appropriately in respect of the activity, that will be potent evidence of failures at that level. There may be organisations that bury their head in the sand and erroneously believe that the way to avoid the offence is simply to delegate responsibility out of the boardroom entirely. But those organisations are taking the gamble to abdicate responsibility and risk liability versus having the certainty of avoiding liability through managing health and safety properly at a senior level. We believe that this also supports the Government’s position that health and safety should be led from the top. Only those organisations in which senior management are taking health and safety seriously can be sure of avoiding liability for this offence. We believe that it is right that, if such people have been managing the organisation well, the organisation as a whole should not be guilty under the new offence. That should be true regardless of the size or structure of the organisation. I realise that I have spent some time setting out how we see the test working and what we see as its benefits, because it is important to be clear about these early on. This also explains why we have included the requirement for fault at the senior level in the test for liability. I now want to explain briefly why the amendments of the noble Lord, Lord Razzall—although an attractive alternative way of achieving a similar goal—should not be accepted by the Committee. They would base the test for liability on a potentially low degree of fault at the senior level and would offer little reassurance to organisations that they would be able to control liability for the offence through senior management. This is because, in hindsight, it could probably always be said that the senior management could have done more and, given a tragic death, a jury may consider that it would have been reasonable to expect them to have done so. The approach of the amendments has some resonance with the Canadian law of criminal negligence. In that jurisdiction, the law requires both negligence by officers acting within the scope of their authority and a failure by senior officers who had responsibility for supervising that part of the company. The test there is not that a senior officer was not duly diligent, however, but that the standard of care departed ““markedly”” from what could reasonably have been expected in the circumstances. So there is a recognition there, too, that corporate liability should not be engaged without a serious failure at a senior level in the organisation. There is a balance to be struck in how much fault should be required at a senior level for the offence to have effect—so that the test is workable—without making conscientious organisations risk averse, so that they are able to operate in the knowledge that, if senior managers are taking health and safety seriously, they have nothing to fear from this offence. We must remember that the offence is aimed at companies that show gross disregard for the safety of people affected by their work. As a result, we have proposed a test that requires a substantial element of the gross breach to have been at the senior level. I hope that I have persuaded the noble Lord, Lord Razzall, that our formulation is workable and fair, and dealt with some of his doubts about whether to press his amendments. I shall of course study the comments of all noble Lords carefully to ensure that we do not have the obfuscation to which the noble Lord, Lord Boyd, referred—I recognise that that is important. The noble Lord, Lord Lyell of Markyate, asked about the ““Herald of Free Enterprise”” papers. That was the subject of a public inquiry and public comment, of course. We are happy to check that the Library has a copy. The noble Lord’s question was more specifically about the Attorney-General’s papers.