Corporate Manslaughter and Corporate Homicide Bill

moved Amendment No. 13: 13: Clause 1, page 2, line 4, at end insert ““, or (iii) the performance of duties arising from a contract, an office or a fiduciary obligation, concerning matters substantially connected with those activities”” The noble Lord said: I think that for this amendment I can pray in aid a lot of the contributions to the Committee. Most of them have been suffused with traditional legal thinking—perhaps sometimes to the extent of compressing the liability established by the Bill. I am not trying to do anything like that. I merely want to deal with the question of where senior management is to be found. Although it is not grouped with this amendment, it might be convenient for noble Lords to notice that I have another amendment, Amendment No. 32, to which I shall speak, because the thinking behind that amendment is relevant. The Minister may think that this is the wrong place to make the case that I am making and that I should do so in relation to Clause 2, so I am not standing on precise drafting or precise place. What is the essence of the amendment? The Bill says in various places that it is concerned with the breach of a duty of care. That is defined in many ways, and I immediately make clear that I accept everything that was said about the Bill being concerned with gross negligence. If we look at Clause 2 as a way into this amendment, the relevant duty of care is defined, and it may be that my amendment should come there. Clause 2 defines ““relevant duty of care”” as a duty owed to employees, as an occupier or in connection with a list that includes supply of goods, carrying out of construction and similar things. When one goes back to where the amendment has been put in, it is also important in regard to the definition of ““senior management””. I prefer to raise the issue there, although noble Lords may think that it should come in some other place. My basic point is that, as Lord Atkin once suggested, everything is being gobbled up by the word ““negligence””, which suggests that one should have in mind the duty of care in the tort of negligence. The noble and learned Lord castigated me for having the civil law of negligence too much in mind, but negligence is behind a great deal of Clauses 1 to 3. It is important that the duty imposed is clearly set out as including, as in Amendment No. 13, duty arising from contract, office or fiduciary obligation. Those who have such duties, which are connected with or concern matters substantially connected with the activities described, should be liable where gross negligence takes the form of breach of that type of duty. It would be absurd if duties arising from contract or office—a well known term in company law—or the fiduciary duty that Section 174 of the Companies Act 2006 set out for directors were not included in the Bill or were not part of the thinking about what we now have to accept is, by a majority of voices, activity that falls far below the relevant duty. Section 174 sets out that one of the relevant duties in fiduciary obligations is that a director of a company, "““must exercise reasonable care, skill and diligence””," and that ““reasonable diligence”” means, "““the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the director””." An extra level of duty arises in Section 174(2)(b) from any extra expertise or knowledge that that director has. During the passage of the Companies Act, there was a great deal of debate about the duties of a director, and that is where the pen finally stood. All these duties are across a range of duties well known to civil, criminal, company and commercial law. They arise from the law of tort—since that was mis-spelled once in my speech in Hansard, I shall spell it out: T O R T—or from contract, fiduciary obligation or so on. It is important that that is so because in paragraphs (a) (b) and (c) of Clause 2(1) the Bill is clear that the duty in respect of deaths of workers that occur at the corporation’s place of business is owed to the corporation’s employees. Paragraphs (b) and (c) of Clause 2(1) do not require the duty to be owed to the corporation’s employees, and I am well aware that that distinction was deliberate. It is any duty owed to anyone as an occupier, as Clause 2 makes clear, or arising from other duty. Therefore, I have been bold enough to put this thinking into an amendment with a list of those who are among senior management. If noble Lords do not like it there and say that it should not be an extra test that gives another range of persons in senior management—and this is why I mention Amendment No. 32—perhaps they would like it somewhere else. But somewhere in the Bill it must be made clear that, when there has been gross negligence, the duty can be based on the law of tort or contract or fiduciary relationship or an office held by the persons concerned. That is quite enough at the moment. There are a lot of reasons why you could argue that that proposal should be somewhere else, but I hope that the Minister will say that he will at least take this away and think about it in respect of this important Bill. I beg to move.