Corporate Manslaughter and Corporate Homicide Bill

Amendment No. 92 is in this group, and I ask noble Lords to look at it because it takes a very conservative approach—an unusual situation for me—to the problem with which we are confronted. I should point out an error in the printing, which was probably my fault. Subsection (2) of Amendment No. 92 should read ““art and part””, rather than ““art or part””. I apologise to all Scottish lawyers for my mistake. Although my origins lie there, if it was my fault, my hand is obviously not yet skilled enough to affect my language. I put no emphasis on the drafting. Obviously, there may be a need for other subsections as the Government prefer, but the spirit of Amendment No. 92 is plain. I say at the outset that I do not want to argue the minutiae. What I am arguing for is something that has different contours of legal liability that are sometimes less wide and occasionally as wide or wider than Section 37 of the Health and Safety at Work etc. Act. I do not want to go through employers’ liability, but that is my position on Section 37. I tabled the amendment because I take as my text what the noble and learned Lord, Lord Lyell, said early in our debates last week. He quoted Dicey and said: "““With us, every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen””.—[Official Report, 11/01/07; col. GC 115.]" I take it that that text from Dicey is roughly the same sort of approach that the noble Lord, Lord Hunt, today called a principle of even-handedness. The reason why the amendment rests on even-handedness is because it points to a fact about criminal liability that has perhaps not been sufficiently highlighted in previous debates. Criminal liability is a very simple and elementary proposition. Criminal law imposes two different forms of liability: primary responsibility, when a thief takes property from a safe, and secondary criminal responsibility when a person hands a thief the key with which he opens the safe. If there is no primary liability in the second person for some special reason, he will normally be liable for aiding, abetting, counselling or procuring—sometimes it is said, encouraging—the commission of a primary offence. The Explanatory Notes to the Bill put the point well, so there is no question of the issue not being in the Government’s mind. Paragraph 54 states: "““Individuals who assist or encourage the commission of an offence can also be convicted of an offence where they have aided, abetted, counselled or procured it or, in Scotland, are guilty of art and part. This is known as secondary liability””." Indeed it is. The notes go on to say that in this Bill such secondary liability is expressly excluded. That is why my Amendment No. 92, like the previous amendments, needs to do something to Clause 16, preferably to omit it. No reason has ever been given for excluding secondary criminal liability under this Bill. Absolutely no justification has ever been advanced for it. It is simply stated. That is it.