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Corporate Manslaughter and Corporate Homicide Bill

My Lords, I warmly support this amendment, moved so comprehensively and convincingly by the noble Lord, Lord Ramsbotham. The state has particular responsibility to those for whom it is immediately and directly responsible. If one is introducing legislation with far-reaching ramifications, one carries the nation behind that legislation much more convincingly if the Government and those in authority say that they will lead be example, making themselves second to none in their commitment to those principles. To say that everybody else must apply this law but they want exemption in their own sphere of responsibility is not a convincing position from which to win the positive support of the nation as a whole. In moving his amendment, the noble Lord referred to the statement by Andrew Dismore, the chairman of the Joint Committee on Human Rights in the other place. I am a member of that committee; indeed, it is meeting at this very moment, taking evidence from Ministers on asylum policy. With the encouragement of my colleagues, I absented myself to be here for this debate. If the House will forgive me, rather than trying to regurgitate the committee’s sentiments in my own inadequate language, I shall draw the House’s attention to what the Joint Committee on Human Rights has said on this matter. In our original report on the Bill, we said, starting at paragraph 1.38: "““We welcome the express application of the new offence to a range of Crown bodies and the express disapplication of Crown immunity from prosecution. Both of these, in principle, are capable of enhancing the compatibility of the UK's law on corporate manslaughter with the positive requirements of Article 2 ECHR…We note, however, that the combined effect of other provisions in the Bill restricting the definition or the scope of application of the offence is substantially to restore the legal or de facto immunity from prosecution enjoyed by many public bodies under the present law””." We gave our conclusions in heavy type: "““In our view the effect of these provisions is to give riseto a serious risk that the UK will be found to be in breach of Article 2 ECHR in the particular circumstances of a future case where the case-law of the Court requires that there be recourse to the criminal law. In particular, the effect of these provisions in the Bill is to preclude the possibility of prosecution for corporate manslaughter in precisely those contexts in which the positive obligation in Article 2 is at its strongest, and may require, in a particular case, that criminal prosecutions be brought: the use of lethal force by the police or army; deaths in custody; deaths of vulnerable children who should be in care, to name just a few examples. This would mean, in situations where responsibility for the death lay with the public body for a management failure, rather than any identifiable individual, recourse to the criminal law would not be possible””." We put forward more supporting arguments, but I draw the attention of the House to paragraph 1.47: "““In our view, the restrictions on both the scope of the new offence and its applicability are likely to lead, in a sufficiently ""serious case, to the UK being found to be in breach of its positive obligation under Article 2 ECHR to put in place an efficient and effective system of judicial remedies including, in certain circumstances, recourse to the criminal law””." That was our first report. We wrote to the Minister about our concerns—we always try to take a reasonable approach if we can—and we were given the courtesy of a very full reply. It would be an abuse of time to quote all the correspondence, but in Legislative Scrutiny: First Progress Report, Second Report of Session 2006-07 we referred to what had happened. We drew attention to the fact that in their response the Government offered three justifications for excluding deaths in custody and in other public sector contexts from the scope of the Bill. First, we noted that the Government, "““argues that the decisions taken by public bodies when exercising public functions have a public policy dimension, involving matters such as the allocation of public resources, which are matters more appropriate for an elected Government to decide than for criminal courts””." Our comment on that was unequivocal: "““In our view, while we agree that courts should only have a very limited role in decisions about the allocation of public resources, this reason cannot justify a sweeping exclusion from the new criminal offence of any decision taken by a public body in the performance of a public function””." Secondly, we noted that: "““the Government argues that public bodies are subject to wider forms of accountability, including accountability to Parliament, accountability under the Human Rights Act 1998, accountability through public inquiries and the existence of specific watchdogs such as the Independent Police Complaints Commission””." Our conclusion, which was also printed in heavy print, was that: "““In our view, however, those wider forms of accountability have proved inadequate in the past to prevent deaths caused by gross management failures in public bodies, and in any event they cannot have the same deterrent effect as the possibility of criminal prosecution and conviction. The purpose of the offence is to protect lives by preventing violations of the right to life, and the European Court of Human Rights in its Article 2 case-law has repeatedly stressed the importance of the deterrent effect of the criminal law in protecting life””." The Government put forward a third explanation. We noted that, "““the Government seeks to justify the exclusions on the ground that criminal investigations are costly and disruptive and it would not be in the public interest to impose a resources burden on the Crown””." I hope we will not be taken as having been dismissive, but we wrote, again in heavy type: "““In our view this concern with cost and resources belittles the importance of what is at stake: the right to life””." The Joint Committee is representative of both Houses and all parties, and it gave a lot of time to this matter. The strength of the Chairman’s comments in the other place is an indication of how the Committee felt. Paragraph 2.13 of the report stated: "““Having considered the Government’s arguments, we therefore remain of the view expressed in our earlier report, that the exclusion from the scope of the new offence of deaths in custody and other deaths caused by gross management failure in the public sector where no individual can be proved to be responsible is likely to lead to the UK being found to be in breach of its positive obligation to protect life under Article 2 ECHR””." The whole House should be extremely grateful to the noble Lord, Lord Ramsbotham, for bringing all his experience, commitment and professionalism to bear on this matter. Having moved the amendment so clearly, I hope that he will receive full support from all parts of the House.