House of Commons Home Affairs and Work and Pensions Committees Draft Corporate Manslaughter Bill First Joint Report of Session 2005–06 Volume I: Report HC 540-I House of Commons Home Affairs and Work and Pensions Committees Draft Corporate Manslaughter Bill First Joint Report of Session 2005–06 Volume I: Report First Report from the Home Affairs Committee of Session 2005–06 First Report from the Work and Pensions Committee of Session 2005–06 Report, together with formal minutes Ordered by The House of Commons to be printed 12 December 2005 HC 540-I Published on 20 December 2005 by authority of the House of Commons London: The Stationery Office Limited £0.00 The Home Affairs and Work and Pensions Committees The Home Affairs and Work and Pensions Committees are appointed by the House of Commons to examine the expenditure, administration, and policy of the Home Office and the Department for Work and Pensions. Current membership HOME AFFAIRS: Mr John Denham (Chairman)*, Mr Richard Benyon, Mr Jeremy Browne, Colin Burgon, Mr James Clappison, Mrs Ann Cryer, Mrs Janet Dean, Nick Harvey, Nick Herbert, Steve McCabe, Mr Shahid Malik, Gwyn Prosser, Mr Gary Streeter, Mr David Winnick. WORK AND PENSIONS: Mr Terry Rooney (Chairman), Miss Anne Begg, Harry Cohen, Mr Philip Dunne, Mrs Natascha Engel, Michael Jabez Foster, Justine Greening, Mrs Joan Humble, Greg Mulholland, John Penrose, Jenny Willott. *Mr John Denham, Chairman for this inquiry. Powers The Committees are departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in Standing Order No. 152. The powers of the Committees to work together and agree joint reports are set out in Standing Order No. 137A. These Standing Orders are available on the Internet via www.parliament.uk. Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at www.parliament.uk/parliamentary_committees/home_affairs_committee/draft_c orporate-manslaughter_bill.cfm. Committee staff The staff of the Draft Corporate Manslaughter Bill Sub-committees are Gosia McBride (Clerk), Manjit Gheera (Committee Legal Specialist), Francene Graham (Committee Assistant), and Jenny Pickard (Secretary). Contacts All correspondence should be addressed to the Clerk of the Home Affairs and Work and Pensions Draft Corporate Manslaughter Bill Sub-Committees, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 8387; the Committee’s email address is [email protected] Footnotes In the footnotes of this Report, references to oral evidence are indicated by ‘Q’ followed by the question number. All oral evidence for this inquiry is printed in Volume III. References to written evidence are indicated by the page number as in ‘Ev 12’ (written evidence published in Volume is indicated as in ‘Volume II, Ev 12, and evidence published in Volume III is indicated as in ‘Volume III, Ev 12). 1 Contents Report Page Summary 3 Introduction 5 The Committees’ inquiry 5 1 Background to the draft Bill 7 Why is the law being changed? 7 The identification principle 7 A new basis for liability 8 History of the current proposals 9 The Law Commission’s proposals 9 The Government’s 2000 Consultation Paper 10 The Government’s draft Bill 11 Delays and timing 13 2 Application of the offence 16 Corporations 16 Schedule of government departments or other bodies 18 Police Forces 20 3 Death 21 Workers and the public 21 Serious injuries 21 Fatal damage to health 23 Corporate “killing” 23 4 Causation 25 5 Relevant duty of care 27 Law of negligence 27 Categories of relationship 30 Corporate groups 31 Contractual relationships 32 6 Management failure 34 7 Senior managers 37 Delegation of health and safety loophole 37 Reintroducing the identification principle 38 “Senior manager” definition 39 Inequitable application 40 Reputations 41 Alternatives to the senior manager test 42 8 Gross breach 45 2 “Falling far below” 45 Relevant factors 46 Health and safety legislation and guidance 47 Reference to senior managers 49 Profit from failure 50 9 Gross management failure 51 10 Crown immunity 53 Removal of Crown immunity 53 Crown immunity “by the back door”? 54 Exclusively public functions 55 Lack of clarity 55 Should exclusively public functions be exempt from the offence? 56 Deaths in prisons and police custody 57 Public policy decisions of public authorities 59 Military activities 61 Services “provided” by the state 62 The operational activities of the police and fire services 63 11 Territorial application 65 Where harm occurs 65 Relationship with the rest of the UK’s law 67 12 Sanctions 69 Unlimited fines 69 Remedial orders 72 Application to Crown bodies 74 Other sanctions 75 13 Individual liability for directors 80 Directors’ duties 84 14 Investigation and prosecution 86 Who should investigate and prosecute the offence? 86 Investigatory powers 87 Consent to prosecute 88 15 Cost 91 Conclusions and recommendations 94 Annex 1 – Table showing development of current policy 102 Formal minutes 105 List of witnesses 111 List of written evidence 113 List of written evidence 114 3 Summary We are pleased that the Government has finally introduced a draft Corporate Manslaughter Bill. There is a strong need for a statutory offence that shifts the basis of liability for corporate manslaughter away from the requirement of identifying a ‘directing mind’ of a guilty company. This ‘identification principle’ has made prosecutions of large companies almost impossible under the current common law. It is now over eight years since the Government first announced it was going to consider such legislation and we would like to see an actual Bill introduced before the end of this parliamentary session 2005/06. However, we are concerned that the current drafting of the Bill may not satisfy those who have previously felt so let down by the law. Although we welcome the removal of Crown immunity, we believe that some of the exemptions in the Bill are too broad. In particular we are concerned about the proposed exemption for deaths in police custody and prisons. In addition we recommend that the draft Bill should contain provision to prosecute an individual for contributing to the offence of corporate manslaughter and that the Government should have considered a wider package of corporate sanctions. We also believe that there should be no requirement to obtain the Director of Public Prosecution’s consent before a private prosecution can be bought. The offence should also have wider territorial application than in the current draft Bill. The proposed basis for liability in the draft Bill is more complex than it needs to be. The Government should remove the civil law concept of a duty of care in negligence from the Bill. It is surplus to requirements and adds unnecessary legal complication to the Bill. We also believe it is inappropriate to adopt a civil law concept as the basis for a criminal offence. The restriction of management failure to that by senior managers is also problematic and has in effect reintroduced some of the problems of the ‘identification principle’. We acknowledge the argument that the Law Commission’s “management failure” test could cover failings within a company that occur at too low a level to be fairly associated with the company as a whole. We recommend that the Home Office should seek to address this specific concern without abandoning the Law Commission’s general approach, which we support, of using ‘management failure’ as the basis for liability. We suggest that juries be assisted in their task by being required to consider whether there has been a serious breach of health and safety legislation and related guidance or other relevant legislation. In assessing this they could consider whether a corporate culture existed in the organisation that encouraged, tolerated or led to that management failure. 5 Introduction The Committees’ inquiry 1. The Government published its draft Corporate Manslaughter Bill on 23 March 2005.1 Its consultation on the draft Bill ended on 17 June. The Home Affairs and Work and Pensions Committees had expressed an interest in this matter in the last Parliament and, on reappointment after the 2005 election, decided to examine the Government’s proposals. In July 2005 we appointed draft Corporate Manslaughter Bill Sub-committees to meet concurrently “to consider and report on the Government’s draft Corporate Manslaughter Bill”. 2. On 20 July, the Sub-committees invited interested parties to submit written memoranda. We asked those who had already responded to the Home Office consultation for permission to use these responses as evidence, but also welcomed additional or updated memoranda from these respondents and others. We received over 150 submissions from a wide range of interested organisations and individuals. 3. The Government had expressed the hope that we would report to the House before Christmas and this timeframe restricted the amount of oral evidence we were able to take. We held six evidence sessions starting on 24 October 2005 and sought to hear from witnesses who represented a range of views articulated in written evidence. We made a particular effort to include individuals who had been bereaved by public disasters or deaths in the workplace, or organisations representing them. We regret that we were unable to hear from all of the organisations who contacted us during the course of the inquiry,