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Corporate Manslaughter and Corporate Homicide Bill

moved Amendment No. 1: 1: Clause 1 , page 1, line 11, leave out from ““force”” to end of line 13 and insert— ““( ) a partnership, or a trade union or employers’ association, that is an employer.”” The noble and learned Lord said: My Lords, in the absence of my noble friend Lady Scotland, I am pleased to be joining the consideration of the Bill. I am pleased that the first time I rise is to move an amendment that responds positively to concerns which have been put by a number of noble Lords and is supported by the Official Opposition—at least, the noble Lord, Lord Hunt, has added his name to it. I do not think that I will be in quite that position later. The amendment deals with the extension of the offence to unincorporated bodies. The Bill thatwas introduced in the other place focused on the question of corporate liability for corporate bodies. The mischief that the reform seeks to address isthe difficulty that has arisen in practice, underthe identification principle, of prosecuting large corporate bodies for very serious management failure. To deal with that, the new offence defines a liability for management failure, which is not dependent on the guilt of a particular individual. The problem of finding a person to be liable for this is sidestepped in the case of a corporate body, because liability can be attached to the corporate body itself, distinct from any specific individual. The circumstances are somewhat different with unincorporated bodies. These exist as a group of members or individuals, with no separate legal personality. The question of attributing liability to the body does not arise because there is no body as such. So there are some differences between the position of corporate bodies and unincorporated associations. However, we recognise that the offence goes deeper than simply setting out the legal liability of the corporate body. It is primarily designed to offer accountability where the way in which an activity has been managed or organised has been grossly deficient but no individual can be identified as responsible for that failure. Those are circumstances that can exist whether an organisation is incorporated or not, and we recognise the concern about extending the offence to such organisations. The amendment extends the offence to partnerships, trade unions and employers’ associations. I freely acknowledge that we are still taking a cautious approach to the extension. As it happens, unincorporated bodies are not currently liable to be prosecuted for gross negligence manslaughter; they include a wide rangeof smaller and informal groups, including those inthe voluntary and charitable sectors. Those smaller organisations are less likely to have access to advice about the implications of the new offence and they may act in way that is risk averse to it. We would not want to see that extending the offence had the unfortunate effect of discouraging organisations from undertaking worthwhile activities. On the other hand, the concern is that a lacuna in the law will be left if larger organisations are excluded from the offence. We have sought to meet this balance by extending the offence in the first instance to a defined range of unincorporated bodies such as partnerships and bodies that already have a quasi-corporate status under statute—trade unions and employers’ associations. That will extend the offence to a range of organisations closely associated with work and business activities which already have an identity as an organisation if not a corporate personality. The amendment also proposes that those sorts of organisation would be covered only if they are themselves employers. That does not mean that they are only covered in respect of duties to employees: they will be responsible under all the relevant duties under Clause 2. But organisations that do not employ staff will not be covered. Noble Lords may think that that has two benefits. First, it will inevitably focus on larger organisations rather than very small ones. Secondly, it will reflect the existing legal position because under the Health and Safety at Work etc. Act 1974 unincorporated bodies will owe general duties to staff and the public. This would not be imposing a new duty on those who are not subject to some duty already. It was then thought right to allow for the possibility that further bodies might be included in the future. That is the purpose behind Amendment No. 51, which provides a power to extend the offence to further categories of organisation by secondary legislation subject to the affirmative procedure. I draw noble Lords’ attention to the fact that the Delegated Powers and Regulatory Reform Committee published a report today that expresses concern about the extent of this power. That gives rise to a difficulty. The Government have thought it sensible to start with a clearly defined range of organisations which frequently share many of the characteristics of corporate bodies. That is intended to be coupled with a relatively straightforward way of extending the offence in the future, if that seems to be appropriate. Comments from noble Lords and other quarters have supported the idea of extending the offence, so we are going with the grain in seeking to do that. The Delegated Powers and Regulatory Reform Committee suggested that we ought to identify the sort of body that the offence might extend to rather than leaving the power general. That is not straightforward. It is not at all obvious to us what sort of bodies the offence might be extended to that would not be included in any form of formulation that we put forward. When one looks at the possibility of defining the sorts of bodies that might be covered, particularly in line with comments that have been made so far, one would probably end up with something that was no narrower than the general power proposed at the moment. Recognising that the committee wanted a justification for why there should be a power, that is what I have been seeking to put before your Lordships. Put shortly, in practical terms, there does not seem to be a great deal to choose from at the end of the day between the power proposed in Amendment No. 51 and one that seeks to set out more clearly the categories of body, but that is a matter for your Lordships, of course. Other amendments in this group are also consequential on extending the offence to unincorporated bodies. Amendment No. 41 ensures that there is no loophole in the offence because partnerships do not themselves owe a duty of care. It also makes provision for partnerships to be treated in a manner similar to corporate bodies when being prosecuted for the offence. The opportunity has also been taken to put a number of definitions that are used in various parts of the Bill in a single interpretation clause. That is set out in Amendment No. 52. Consequential amendments remove the various single definitions. In summary, the Government hope that in putting forward Amendment No. 1 we have addressed a concern expressed by many that the Bill should extend to a wider range of organisations. The Government have accepted that argument but believe that caution is still needed in how that is progressed. That is why the amendments are put forward on the basis that they are. I beg to move.