Corporate Manslaughter and Corporate Homicide Bill

If the Committee will indulge us, we will give some further thought to the points raised by the noble Lord, Lord James. I shall respond to the amendment moved by the noble Lord, Lord Razzall. The previous group dealt with the requirement that a relevant duty of care for the new offence be owed in the law of negligence. Amendment No. 23 in essence goes to the requirement that the duty of care falls into one of a number of categories of duty. It might be useful if I explained why we have chosen to provide categories of duty in the first place. We would expect the question of whether an organisation owed a duty of care or not generally to be straightforward. For example, it will take little to establish that an individual was employed by a company and therefore was owed a duty of care; similarly, there is no argument that rail passengers are owed a duty of care by rail companies. So those relationships should be fairly straightforward. The duty of care in the law of negligence proceeds on the basis of established circumstances in which a duty of care applies, with general tests being applied if a case does not involve a relationship where a duty is already clearly established. These tests are based on the proximity of the relationship between the parties, the foreseeability of damage and considerations of whether it is just, fair and reasonable to impose a duty. We accept that the duty of care is a developing area of the law, especially in relation to the liability of bodies carrying out public functions. This affects not just Crown bodies, but all bodies in the wider public sector. Given the seriousness of the offence, we think that there is merit in setting out more clearly where the offence will apply by marking out the types of activities that the offence is intended to cover. That will give certainty to organisations and the public about which situations are covered by the offence and will be of great benefit to investigators, as, in some cases, it will allow decisions to be taken early without considering detailed questions about the duty of care. The categories cover three types of duty: duties owed to those working in or for an organisation or company; duties owed in respect of the workplace; and duties owed in respect of a company’s activities. Categories relating to those working in or for an organisation and relating to the state of premises occupied by an organisation are largely straightforward and deal with a key aspect of the scope of the offence, which is the employer’s duty to ensure the health and safety of employees and the safe condition of work premises. In some jurisdictions, that is the extent of industrial manslaughter laws. However, we consider it right to go further and to cover duties owed to members of the public. The third category, covered by Clause 2(1)(c), is thus intended to cover other circumstances where organisations commonly owe duties to members of the public. I shall not explore that category in depth at this stage because amendments have been tabled that will allow us to consider it in more detail. However, I make the point that the primary purpose of these categories is not to make substantive exclusions to the Bill. It is undoubtedly right that there will be certain activities that are not covered by the heads of activity set out in Clause 2(1)(c), but they will generally relate to matters where a duty of care is not owed or which are covered by exclusions to the offence. For example, regulatory activity on the part of government, such as the setting or enforcement of regulatory standards, would not fall into any of the categories, but public bodies are very unlikely to owe duties of care in that respect. Further clarity on this is provided in Clause 3. If there are particular examples of circumstances where a duty of care is owed and which appear to have inadvertently slipped through the net, we would be willing to look carefully at whether further provision is needed. The principle that lies behind providing a list of categories is to provide a more readily accessible offence, the application of which can be resolved in many circumstances without detailed resort to the law of negligence. We think that that is a sensible aim. I hope that, having heard that explanation, the noble Lord will feel able to withdraw his amendment. The noble Lord, Lord Hunt, asked me to make some observations on the comments made by the noble Lord, Lord James, on the earlier amendment. Those working in an organisation will have a range of duties, some of which may overlap or appear to conflict, but we do not accept that a duty to maximise returns for a company and its shareholders provides a basis for not operating safely. That is an absolute duty, and an organisation can be convicted of a criminal offence, for example, in respect of breach of health and safety obligations. That provides an overriding framework within which other duties, such as the fiduciary obligations of directors, operate. I think that that answers the noble Lord’s point, but the point itself is important and a key consideration for the company involved.