There are three disciplinary levels intertwined in this story: first, there is the legal case, and how it contributed to a change in law – its impact on UK public policy; second, there is the ethical question concerning the interplay between firms’ moral and legal responsibilities, as well as the wider ethical issue of responsibility towards society; and third, we address the philosophical debate around how can an inanimate entity such as an organization be held to moral standards and be expected to display moral behavior, as if it had a conscience? With this, we are back to the Frankenstein issue — or the brain-in-a-vat dilemma. Are human beings the only conscious entities? (For purposes of this debate, philosophical distinctions between conscience and consciousness are immaterial). If an entity can think and act autonomously – in the way that companies most certainly can – does that mean it is also self-conscious and responsible for its actions? Does one need a soul to behave ethically?
The Context
The 80’s and the 90’s were dark years for public health and safety in Britain. Train crash after train crash, and building site after building site collapsing, people were dying – unnecessarily. These accidents were avoidable. Admittedly, some of these accidents were taking place at work – especially in so-called hazardous industries as agriculture and construction. (Which is why the unions started protesting.) But a lot of them were due to failures in public transport (ships, trains, etc.), thus affecting the whole society. So, when the then new Prime Minister Tony Blair promised a new law to address the gap in corporate accountability, which would allow companies to be held to account when they were committing gross negligence offences (leading to deaths or serious injuries), trade union members were not the only ones to cheer.
It took ten years for the new law to finally be introduced – and then, only in a diluted form. I was involved in that public campaign during the second half of that decade, between 2004 – 2009, whilst working at the Centre for Corporate Accountability (CCA), a small NGO that led the legal efforts to convince Parliament of the need for the new law. The test of liability imposed by the Corporate Manslaughter and Corporate Homicide Act 2007 is difficult to meet, especially for large corporations – where the management structure is too complex for the line of responsibilities for health and safety polices implementation to be clear, and too remote from the operational levels where safety measures are implemented – or not – to establish liability. Even so, the new law was considered a herald of improved justice insofar as corporate responsibility is concerned.
This chapter looks at one such story of a maritime ‘accident’ that took place in March 1987, where 193 people lost their lives, and no meaningful justice was subsequently achieved in courts. We’ll be asking legal, ethical, and philosophical questions about:
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The ‘Moral Conscience of a Corporation’ Conundrum: Given the fact that companies are what is called a ‘legal person’ in law (with a status of their own), whilst still of course lacking a mind or a soul, the question arises about the very possibility of them behaving ethically; how can they possibly do so, without a moral conscience? How can a merely legal person (as opposed to a human one) behave ethically, in the absence of a conscience?
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The Moral vs. Legal Responsibility Conundrum: Given the above, should corporations even be subjected to criminal laws, which by their very nature (and purpose) deal with moral notions of blameworthiness? See my argument on this below.
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The Public Policy Work on Corporate Accountability: This seems to be a convergence point between business, law, ethics, and society with an important impact on social justice. (Here, I utilize my five-year experience of policy and campaign work at the Centre for Corporate Accountability, being directly involved in the ten-year lobbying for changes in the law of corporate killing, at the end of which the new Corporate Manslaughter and Corporate Homicide Act 2007 was introduced).
We start with the story of what actually happened on that cold night of 6 March 1987, then move on to discussing the legal case that followed, moral and philosophical issues underpinning it, as well as pragmatic socio-economic aspects related to these. We end with a detailed consideration of the public policy work surrounding the law reform that was (and still is) needed on corporate accountability issues, which the case highlights.