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Corporate Manslaughter and Corporate Homicide Bill

My Lords, I am grateful to the noble Baroness, Lady Turner, and the noble Lord, Lord Hoyle, for their enthusiasm for this amendment, even if I do not entirely agree with their thinking and the logic behind it. The amendment raises an issue that goes to the heart of the debate on the Bill. The question of whether the new offence should impose liability on individuals as well as on corporate bodies has been central in debates onthe Bill. Noble Lords will know well that the Government’s position is that the offence should focus on corporate not individual liability, which means creating a new offence applicable to organisations and excluding secondary liability for the new offence on the part of individuals. The case for making provision in the Bill for individual liability is fundamentally based on two arguments: first, that an individual must be held to account when there has been a death; and secondly, that individual liability is needed to drive home the responsibility of senior managers, a point forcefully made by the noble Lord, Lord Hoyle. These are weighty arguments but, in summary, the Government do not believe that individual criminal liability can always be established, and consider that the question of director responsibility goes wider than the imposition of criminal offences. Therefore, I am not able to offer much comfort to the noble Baroness, Lady Turner, or the noble Lord, Lord Hoyle. However, I owe it to them to set out our thinking in more detail. The genesis of the Bill lies in the difficulty the law has in establishing an effective form of accountability for manslaughter for corporate bodies. The controlling mind test in the existing law has worked in a small number of prosecutions of small companies, but it has not proved to be a successful basis for prosecuting more complex organisations where failures in the chain of management can rarely be laid at the door of specific individuals. That is the problem the Bill seeks to address, and is why the Bill shifts the focus away from individuals and bases liability on gross failures in the management of systems and processes within an organisation. In the future, juries will be able to consider the overall picture of how an organisation’s activities were managed or organised, instead of having to focus on the actions of a single individual. That offers scope for a wider and more effective basis for holding organisations to account for failures in the way they were managed. Having recognised that complex organisations cannot be convicted solely on the basis of the actsand omissions of senior managers, we think it is problematic to try to turn that situation on its head and say that senior managers ought to be identified to take responsibility for the organisational failure. The failure of the controlling mind test has shown that it does not reflect the reality of corporate decision-making and, as the Health and Safety Executive has attested, the majority of work-related deaths are due to systemic management failures, not to the actions of individuals. In the case of the Hatfield crash, when sentencing Network Rail and Balfour Beatty for breaches of health and safety legislation, the judge felt moved to remark that: "““In the case of Balfour Beatty, I regard their failure as lying at the top of the scale. I have spent over 30 years of my professional life involved in cases concerning the duty of care, including many ""of the major transportation and other disasters of the late 1980s and the 1990s. I remind myself to guard against overreaction to this incident and I believe I have done so. But I have to say that I regard the failures of Balfour Beatty, set out above, as the worst example of sustained, industrial negligence in a high-risk industry I have seen””." In the same circumstances, proceedings against individuals for manslaughter offences and under health and safety law resulted in dismissals by the judge or acquittals from the jury. That underlines the need to move to a new basis for judging corporate negligence that is not linked to individual criminal liability. It also raises a significant question about what the offence proposed by the new amendment would add. It would impose liability where a senior manager contributes to the offence of corporate manslaughter by gross negligence. If it is indeed the case that a senior manager has acted grossly negligently and caused death, he can already be prosecuted for manslaughter. Lower down the scale, health and safety law provides sanctions against individuals whose conduct has contributed to health and safety failures.