---

Corporate Manslaughter and Corporate Homicide Bill

My Lords, I am grateful to the noble Earl, Lord Mar and Kellie, for raising the important issue of how the offence will operate in Scotland. It is useful to provide an explanation as to why the approach of corporate homicide has been adopted in Scotland. Similar difficulties are involved in the prosecution of companies in Scotland for culpable homicide as exist for prosecutions against companies for manslaughter in England and Wales and Northern Ireland. The Scottish Court of Criminal Appeal in the Transco case confirmed that the identification principle applied under Scots law as the basis for finding a company guilty of culpable homicide, and, as in English law, the appeal court also expressly stated that the law of Scotland does not recognise the principle of ‘aggregation’, which would allow the conduct and states of minds of a number of people over a period of time to be considered collectively. Colleagues in the Scottish Administration are equally determined that the law should be moved on to a new and effective footing. The problems posed by the current law have been considered comprehensively in both jurisdictions—in England by the Law Commission and then public consultation and pre-legislative scrutiny, and in Scotland, by an expert group set up by the Scottish Executive. The solutions that were arrived at had differences, but also common themes: the need to replace the identification principle with a new test for liability, the application of the offence to the Crown and an element of management failure to fix corporate liability Clearly it is important that the new offence fits properly into the structure of Scots criminal law, and the Bill is drafted to achieve this. Perhaps most obviously, the offence will be known as corporate manslaughter in England and Wales and Northern Ireland but corporate homicide in Scotland. This reflects the different language for homicide offences in the two jurisdictions. There are other examples dotted throughout the Bill. But I submit that this amendment goes beyond recognising differences in the Scottish legal system and proposes a fundamentally different approach to the new offence for Scotland. We are reluctant to go down that route in a reserved area. It would mean, for example, that companies would be operating under different regimes north and south of the border. We also have a number of reservations about how the different offence for Scotland would work. The heart of the problem for both jurisdictions lies with the identification principle. This Bill takes a significant step in removing that obstacle. I am concerned that this amendment would replicate at least some of the existing problems. It is difficult to see how the test for recklessness, which is based on being aware of a risk or being in a position where a risk ought to be have been appreciated, could be applied to a company other than through the conduct of specific individuals. Indeed, the amendment appears to contemplate that the court would need to identify particular senior managers who had been reckless. However, that would reintroduce the very element of identification that we are trying to get away from. As the Bill stands, the offence focuses on how activities were being managed across an organisation, at senior and junior levels and in terms of the systems and processes in place, not who was managing them. That is the fundamental shift in the law that the Bill offers but, with respect, this amendment would significantly undermine that change in Scotland. We also think that it is right to underpin the new offence with the concept of gross negligence across the UK, including Scotland where gross negligence in fact formed part of the common law on culpable homicide in Scotland at least until the mid-20th century. The sanction of admonition is already available pursuant to Section 246 of the Criminal Procedure (Scotland) Act 1995, where a court may dismiss with an admonition any person convicted by it of an offence. Pursuant to that same Act, "““no compensation order shall be made in respect of … loss suffered in consequence of the death of any person””." But I understand that the Scottish Executive is currently considering a report from the Sentencing Commission for Scotland on financial penalties. As part of that work the Executive is considering the issue of compensation orders. Any changes to that legislation would, of course, properly be a matter for the Scottish Administration. In summary, I am grateful to the noble Earl for raising the question of how the offence will apply to Scotland. I hope that I have been able to satisfy him that it is both appropriate and desirable for the new Bill to apply across the United Kingdom in the same terms and I urge him to withdraw his amendment.