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Corporate Manslaughter and Corporate Homicide Bill

My Lords, my name appears on this amendment and Amendment No. 47, with which it is grouped. Amendment No. 47 seeks to leave out Clause 16 and I hope your Lordships will pay close attention to it. It is incumbent on me, therefore, to explain, as I did to the noble Baroness, Lady Turner, why I can support Amendments Nos. 8 and 47 and not Amendment No. 7. It depends on a fundamental issue relating to the criminal law. What one might call the DNA of criminal liability is a curious and now rather complex double helix, the bond between primary liability and secondary liability. One leading textbook, quoting a case from 1611, states: "““It has always been sufficient to prove that the defendant was either the principal or the secondary party””." The secondary party in the common case is onewho is found liable if the evidence proves that he committed the offence primarily or, secondly, that he aided, abetted, counselled or procured it. That is still the ordinary rule of law. Where there is an offence, you expect liability in the primary case to be on the person who committed it, and the secondary liability to be on someone who aids and abets. But not in this Bill; Clause 16 expunges all notion of secondary liability from the Bill’s grasp. Anyone who aids,abets, counsels or procures the offence established by Clause 1 has a complete immunity under Clause 16. It has never yet been explained precisely why this has tobe so. Perhaps I may deal with Amendment No. 8 and then turn to what the Government have said. Amendment No. 8 takes the common-sense line that mostly the people who will be said to have aided or abetted, or in some way assisted in the gross negligence that has led to a death, will be in senior management. It might be said that the amendment should be couched in terms of ““anyone”” who aids or abets but, as a matter of common sense, I have found it possible to put my name to it as it stands. The amendment raises the issue of corporate homicide in Scotland. In Committee, we learnt a great deal from noble and learned Lords from Scotland and that the test of corporate manslaughter is quite different north of the Border than it is here. Having raised the point, I suggest that it should be debated when we reach Amendment No. 43, tabled by the noble Earl, Lord Mar and Kellie, and I leave it there for the moment. Returning to the main issue, why should someone who aids and abets this new offence be given a gigantic, special, separate immunity? As a matter of common sense, again, it has been complained by some people that executives in companies which have been involved in rather large accidents in the past have gone to such lengths by the mantra of ““cut costs”” that they have aided and abetted the gross negligence of those who left aside the safe system and caused deaths. BP is in the middle of such a controversy. It had a disaster in Grangemouth in 1987, in Falkirk in 2002, and now of course there is the extraordinary explosion at its plant in Texas. I take it as common ground that there can be cases where, under the ordinary rule of law, someone could be liable for aiding or abetting this offence. It is not a burden upon me to establish precisely what the circumstances are. As I understand it, it is for me to agree with the case the Government put in Grand Committee that such liability on a set of facts that one might agree upon is possible. If it is possible, why is it excluded? Aiding and abetting can, in some circumstances, be constituted by an omission. In 1940, the Lord Chief Justice Lord Hewart faced the case of Rubie, an experienced driver who just sat in the car and did nothing when, by the side of him, a learner driver drove recklessly and caused a terrible accident. The Lord Chief Justice said in that case that, "““it was open to the justices to find, as they did, that, by his passive conduct in circumstances in which what was required was something which was not passive, but active, he aided and abetted the offence””." It does not take great steps of the imaginationto translate that test against some industrial circumstances of a very large enterprise. If I may, to be fair I shall cite what has been said by the Government. The noble and learned Lord, Lord Davidson of Glen Cova, said in Committee: "““we do not think that providing secondary liability for the new offence would cover a level of criminal behaviour that is distinct from the culpability required by a conviction for manslaughter””." Later, he said: "““We do not think that by allowing secondary liability for the new offence we would achieve any significant extension of individual liability, but would create a new level of complexity””.—(Official Report, 15/1/07; GC 214.)" Complexity is no defence to giving a wide immunity of this sort. Nor, indeed, is it a question of achieving a new level of liability. It is a question of reaching a second defendant. The amendment accepts that criminal primary liability is the object and aim of the Bill. What it and Amendment No. 47 do not accept is that secondary liability—the normal rule of law about secondary liability—should be excluded from this field forever. The statements of the noble and learned Lord the Advocate-General for Scotland in Committee are true as far as they go, but they are not to the point of why there should not be secondary liability for anyone who aids and abets. Finally, I have made my case as quickly as I can. Of course it is a legal case on the point of simple legal analysis: that secondary liability is the normal rule of law; that the Bill excludes it; and that the Government take away the amendment and think about it, which is what I am asking for tonight. I am asking that the Government think again about the circumstances raised by Amendment No. 8 and come back at Third Reading having rethought the idea of secondary liability in general. However many cases there may be, however few they are, if there were a case of aiding and abetting the offence under the Bill, there should be criminal liability under the normal rule of law. The noble and learned Lord said earlier something to the effect that we want everyone to be covered by the law. I want everyone to be covered by secondary as well as primary liability, which is why I support the amendments, not the previous ones.