Corporate Manslaughter and Corporate Homicide Bill

Before I respond to the noble Lord, Lord Razzall, I shall start with an apology and a welcome. My noble friend Lady Scotland has been called away to see her father, who is unwell. I am sure most Members of the Committee will appreciate that he lives in Dominica in the Caribbean, so the noble Baroness will not be with us today or for the rest of this week, and I suspect that she may not be here for the first part of next week. The welcome is to the noble and learned Lord, Lord Davidson, who will assist on the Bill, for which I am very grateful. He will do a fine and splendid job, not least because he knows a lot more about the law on these matters than I do. The noble Lord, Lord Razzall has moved an important amendment. It is grouped with other amendments that explore the link between the new offence and duties owed in the law of negligence. The amendments tabled by the noble Lord, Lord Razzall, would extend the offence to a range of specific statutory duties. Like my colleagues in another place, I am not persuaded that this approach would add to the law. Gross negligence manslaughter, which is the starting point for this offence, has been linked to the duty of care in the law of negligence for some time. That approach was novel when the Law Commission expressed some hesitancy about it in its original report in 1996, but it has been followed by the courts since then without significant difficulty. Specific issues have arisen in the courts—for example, where a person might have a defence to a cause of action in negligence because of joint unlawful conduct—and I shall return to that shortly. Suffice it to say at this stage that issues of that nature do not represent insurmountable obstacles to relying on the common-law duty. Our starting point is to wonder whether there is a pressing problem with this aspect of the existing offence that needs to be addressed. There needs to be clarity about where the offence will apply, and the common-law duty of care provides a long-established framework for establishing the circumstances in which an organisation ought to be liable for not taking reasonable care for the safety of others. On the other hand, statutory health and safety duties are rarely owed to specific people, or at least rarely help to identify to whom a particular obligation of care is owed. Regulations may, for example, require a train company to take certain specific safety measures, but this is a general obligation, not a duty owed to particular people. Linking the offence to obligations might be appropriate if the offence were recast along the lines suggested in the other place—an offence of causing death through the breach of health and safety legislation. But manslaughter is not just about failing to meet a particular regulatory standard. It is the gross breach of an obligation that an organisation owed to a particular person to ensure their safety. The common-law duty of care provides a well established way of doing that in a way that statutory health and safety regulations are not designed to do. Those statutory provisions flesh out the standards that organisations should have met. That is why Clause 8 requires the jury to consider the extent of breaches of health and safety legislation. However, the aim of the provisions is to impose broad duties on employers and others to consider the risks that their activities give rise to and to take adequate precautions against these. It does not assist that aim for the duties to be prescriptive about the sort of circumstances in which a prosecution ought to be brought. The general and flexible nature of these duties is a great advantage for their use by regulators, but as such they do not offer the clarity needed for an offence of this seriousness. There are also inevitable problems with drawing up a proper list of relevant legislation. The noble Lord, Lord Razzall, said that it might be expanded to include statutes such as the Health and Safety at Work etc. Act or those governing product safety—those should perhaps be in the presentational list. On the other hand, statutes such as the Activity Centres (Young Persons’ Safety) Act 1995 and the Gangmasters (Licensing) Act 2004 do not appear themselves to impose statutory duties. To include the Human Rights Act in any such list would represent a novel and very wide extension of the remedies available for breaches of human rights obligations, making public bodies criminally responsible for their breach. The noble Lord, Lord Hunt, in speaking to his Amendments Nos. 28, 30 and 33, which properly probe amendments made by the Government in another place, asked for further explanation. That is perfectly reasonable and quite proper. I would agree with the noble Lord if he said that he did not feel that there was sufficient discussion of these matters in another place. In pre-legislative scrutiny and in another place, some concern was expressed that the link with the law of negligence might mean that the offence would not apply in certain cases because a person was not liable in negligence. The example was given of the case of Perry Wacker, the Dutch lorry driver who was prosecuted for manslaughter when 58 Chinese illegal immigrants died in a container on his truck. His defence was that he and the victims were engaged in unlawful conduct and he could not be sued by them for damages. That argument was rejected in the Court of Appeal. The case raised the question of whether the courts would be able to take a similar approach with the new offence. We were satisfied that that would be the case. The offence of manslaughter at present is based on circumstances where a duty of care is owed under the general principles of the law of negligence, as the new offence requires, and the existence of a defence of illegality did not frustrate the Wacker case. However, in a spirit of helpfulness, for which the Government are well known, we were happy to make the point clear on the face of the Bill, and moved amendments on Report to achieve that objective. These were drafted in terms of people being jointly engaged in unlawful conduct, which were the circumstances in the Wacker case. As well as clarifying that point, the amendments also deal with circumstances where claims in the law of negligence have been replaced by provision for strict liability—for example, the liability of airlines under the Carriage by Air Act 1961. Where a duty of care would have been owed but for that statute, we would want the offence to apply where a company’s gross negligence caused a person’s death. Similarly, the amendments make it clear that a defendant cannot seek to defeat the offence by claiming that the victim voluntarily took on the risk involved and therefore that the defendant owed him no duty of care. That might be the sensible approach in terms of allowing damages and it might raise, in a criminal case, questions of causation as well as an assessment of whether an organisation’s conduct was grossly negligent or not. However, we do not think that it would be right to exclude criminal liability entirely on this basis. We discussed in Committee last week some aspects raised by the amendment tabled by the noble Lord, Lord Wedderburn, which would widen the definition of the law of negligence so that it covered duties arising from a contract, office or fiduciary obligation—the noble Lord said that this would cover all types of negligence. That is an ambitious and, in essence, laudable objective. However, there are difficulties with this. As I explained in the context of Amendment No. 13 last week, we do not accept the need to extend the offence in this way. We have given the matter some further thought, but we remain unpersuaded that there is a mischief that needs to be addressed. The essential characteristic of the offence is a gross breach of a duty of care. As it relates to corporate liability, the offence is based on gross breaches of a duty of care owed by the corporate body rather than by individuals within it. Whether office holders or those with fiduciary obligations have been negligent will be important when assessing whether there has been a management failure in the organisation, but we do not want to make proof of any level of fault against individuals a condition of the offence. The essence of the offence should be that an organisation is in breach of a duty that it, as an organisation, owed. We are not minded, therefore, to extend the offence to duties that are owed primarily by individuals such as those that arise from offices or fiduciary obligations. That leaves the question whether the offence should extend to gross breaches of contractual duties. Again, we are not persuaded at this stage. Negligent performance of a contract giving rise to injury may take place. However, the law of contract is primarily a way of regulating conduct between individual contracting parties, and poor performance of the contract gives rise to a contractual remedy. Should negligent performance of a contract also constitute a crime? I am afraid that I cannot offer the noble Lord much comfort on this, as I do not think that that should be the case. Where a person has been injured or killed as a result of the activities of an organisation, questions of contractual duties and duties of care in the law of negligence may overlap, as I am sure the noble Lord will accept. I gave last week the example of a private hospital. A contract will exist between the patient and the hospital for whatever treatment is being provided, which gives rise to contractual obligations as well as common-law duties to care for the patient. Similarly, employers will owe duties to their employees in terms of their contract, but they are subject also to a common-law duty to provide a safe system of work. That arises independently of the contract and represents a general obligation on all those in the position of employ relating to safety. Obligations of that nature should underpin this offence. They have been the basis of gross negligence manslaughter for some time. To extend the offence to gross contractual breaches would amount to a considerable change of the law and, for that reason, we do not agree that it would be appropriate. I hope that noble Lords have found helpful that lengthy exposition on the amendments, even if they do not entirely agree with our position on them. I have tried to set out as clearly as I can our thinking on the issue. I encourage noble Lords not to press their amendments.