Author: Sharon Hartles (2017)
In contemporary societies the level of influence a state retains to criminalise harms committed by corporations (the earliest forms of modern joint stock companies emerged in seventeenth-century England developing into limited liability companies by the end of the nineteenth) is claimed to be 'limited' because corporate pursuit of profit is deemed to be beneficial to global free markets and economic growth of the developed world and for this reason corporations hold enormous economic, political and social power. Hertz concurs claiming free markets make states weak and limits states ability to criminalise corporate harms (2001). Chan (2011) avers since 1965 companies have been open to manslaughter proceedings, however, prior to this English law abided by the principle laid out by a seventieth century judge, who declared 'Companies have a soul to damn, but no body to kick' .
The Single European Act (SEA) (1987) provides rationale to Hertz' assertion this is because the SEA was the first major revision of the 1957 Treaty of Rome and its aim was to create a single internal market (Parliament.UK, 2013). The vision for a single market came into force through three stages. The first stage defined as the common market built upon free trade with relatively free movement of capital and of services, but limited reduction of the rest of the trade barriers. The second stage defined as the single market removed barriers such as: physical borders, technical standards and taxes which obstructed the freedom of movement of capital, labour, goods, and services between all member states. The third stage defined as the unified market evidenced the total free movement of goods, services capital and people without regard to national boundaries.
This illustrates why sovereignty defined by the mutual recognition of geographic boundaries, ownership rights, self-governing authority, autonomy and monopoly of certain states to govern their own spaces such as state power to criminalise harms committed by corporations in the pursuit of a globalised economy has rendered corporate harm beyond the remit of state power. A point validated by the European Union, (2017) timeline which details: 1970-1979 a growing community and the first enlargement, 1990-1999 a Europe without frontiers. In 1993 the single market was completed with the four freedoms (movement of goods, services, people and capital).
In order to facilitate the adoption of a unified market (by the end of 1992) the Single European Act (SEA) replaced many unanimous decision-making processes with Qualified Majority Voting (QMV) allowing over 280 pieces of legislation to be passed, paving the way for common EU laws based on the principle of mutual recognition among Member States (Parliament.UK, 2013). What this makes apparent is the correlation between increased corporate power and decreased state power revealing why it can be claimed that a unified market ousted corporate harm beyond the remit of state power.
The notion of corporate counter revolution evidences changes implemented by states as a result of forging a unified single market (Snider, 2007). For this reason virtually every OECD country through the 1980's and 1990's adopted a neo-liberal approach legitimising every acquisitive, profit-generating ventures within the corporate sector and deregulation of policy which impedes it and why legal regulation has declined resulting in a weakening of the social safety net (ibid). With this in mind state power to criminalise harms committed by corporations may appear to be restricted because of unintended consequences on the economy and/or social stability.
In contrast unjust, problematic and contested notions of crime and justice are challenged through the mobilisation of people to work for social change. Social justice defined as ideas about what makes society fair encompassing beliefs about the rights, freedoms, duties, and opportunities that individuals are entitled to leads individuals and groups to mobilise and join protests, pressure groups, riots, and revolutions (Rowe, 2015). Families against corporate killings (FACK) campaigners launched in July 2006, fought to have corporate harms committed within the workplace recognised by criminal law and accountable within crime and justice systems. FACK campaigners lobbied MP’s, and gained a voice at policymaking levels. As a result The Corporate Manslaughter and Corporate Homicide Act 2007, brought into force in April 2008, was created as a new offence respectively named corporate manslaughter in England and Wales and Northern Ireland, and corporate homicide in Scotland (Legislation.gov.uk, 2017). FACK campaign members were concerned that financial loss would be the favoured form of justice instead of imprisonment for corporations/corporate representatives convicted of corporate manslaughter.
To counter argue the effectiveness of social movement and citizen participation, McBarnett's (2006) concept of whiter than white collar crime evidences how corporations render their harms 'perfectly legal or at least not expressly illegal'. McBarnett's concept of creative compliance reveals how corporations use professional advisers with knowledge of the law such as barristers to take advantage of legal loopholes to resolve legal problems such as cases of corporate manslaughter revealing how they use the 'letter of the law to defeat it's spirit'.
This is evidenced by the case brought forward against Geotechnical (Holdings) Ltd Company who received an unlimited fine after becoming the first to be convicted by Winchester Crown Court under new corporate manslaughter legislation following the death of a young geologist who died when a pit collapsed on him (The Telegraph, 2011). This supports the concerns raised by FACK campaign members. According to law firm Pinsent Masons, in 2012, sixty three new corporate manslaughter cases were opened, this was up from forty five in 2011, three cases had resulted in convictions, and there were fifty six prosecutions ongoing. Joyston-Bechal, partner at Pinsent Masons advised cases of corporate crime against corporations were rapidly growing and companies should not become complacent or dismiss the risk due to the low conviction rate (Gosden, 2013).
What this makes clear is how power of social movements, campaign organisations, citizen participation, citizen action groups and citizens as consumers can influence state and corporate practices through boycotting, protesting, politically lobbying and purchasing fair trade goods certain injustices committed by corporations can be addressed. This enactment of The Corporate Manslaughter and Corporate Homicide Act 2007 demonstrates that corporate harm is not beyond the remit of state power and evidences that states are not powerless to criminalise harms perpetrated by corporations.
References
Chan, P. (2011) 'History of corporate manslaughter: five key cases' The Telegraph [Online] Available at http://www.telegraph.co.uk/finance/yourbusiness/8330905/History-of-corporate-manslaughter-five-key-cases.html (Assessed 18th April 2017)
European Union. (2017) The history of the European Union [Online] Available at
https://europa.eu/european-union/about-eu/history_en (Accessed 16th April 2017)
Gosden, E, (2013) 'Corporate Manslaughter and Corporate Homicide Act 2007' The Telegraph [Online] Available at http://www.telegraph.co.uk/finance/financial-crime/9830480/Corporate-manslaughter-cases-rise.html (Accessed on 18th April 2017)
Legislation.gov.uk. (2017) Corporate Manslaughter and Corporate Homicide Act 2007 [Online] Available at http://www.legislation.gov.uk/ukpga/2007/19/crossheading/corporate-manslaughter-and-corporate-homicide (Accessed 15th April 2017)
McBarnett, D. (2006) ‘After Enron will “whiter than white-collar crime” still wash?’, British Journal of Criminology, vol. 46, no. 6, pp.1091–1109. [Online] Available at
https://academic-oup-com.libezproxy.open.ac.uk/bjc/article/46/6/1091/389355/After-Enron-will-Whiter-than-White-Collar-Crime (Accessed 22nd April 2017)
Parliament.UK (2013) 'Parliament and Europe' The EEC and the Single European Act [Online] Available at
http://www.parliament.uk/about/living-heritage/evolutionofparliament/legislativescrutiny/parliament-and-europe/overview/britain-and-eec-to-single-european-act/ (Accessed 17th April 2017)
Snider, L. (2000) ‘The sociology of corporate crime: an obituary (or: Whose knowledge claims have legs?)’, Theoretical Criminology, vol. 4, no. 2, pp. 169–206. [Online] Available at
http://oro.open.ac.uk/46191/1/%20S%20%20%282007%29%20A%20Political%20Economy%20of%20Corporate%20Killing_ORO.pdf (Accessed 4th April 2017)
The Telegraph. (2011) 'Company convicted of first corporate manslaughter' [Online] Available at http://www.telegraph.co.uk/news/uknews/crime/8326681/Company-convicted-of-first-corporate-manslaughter.html (Accessed 18th April 2017)
_____________________________________________________________________________________________________
Please cite this article as:
Hartles, S (2017) Is corporate harm beyond the remit of state power? [Online] Available at https://sharonhartles.weebly.com/is-corporate-harm-beyond-the-remit-of-state-power.html(Accessed)
ATTRIBUTION
All works are Open Access articles distributed under the terms of the Creative Commons Attribution License, which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original works are properly cited.
© Sharon Hartles 2022.
In contemporary societies the level of influence a state retains to criminalise harms committed by corporations (the earliest forms of modern joint stock companies emerged in seventeenth-century England developing into limited liability companies by the end of the nineteenth) is claimed to be 'limited' because corporate pursuit of profit is deemed to be beneficial to global free markets and economic growth of the developed world and for this reason corporations hold enormous economic, political and social power. Hertz concurs claiming free markets make states weak and limits states ability to criminalise corporate harms (2001). Chan (2011) avers since 1965 companies have been open to manslaughter proceedings, however, prior to this English law abided by the principle laid out by a seventieth century judge, who declared 'Companies have a soul to damn, but no body to kick' .
The Single European Act (SEA) (1987) provides rationale to Hertz' assertion this is because the SEA was the first major revision of the 1957 Treaty of Rome and its aim was to create a single internal market (Parliament.UK, 2013). The vision for a single market came into force through three stages. The first stage defined as the common market built upon free trade with relatively free movement of capital and of services, but limited reduction of the rest of the trade barriers. The second stage defined as the single market removed barriers such as: physical borders, technical standards and taxes which obstructed the freedom of movement of capital, labour, goods, and services between all member states. The third stage defined as the unified market evidenced the total free movement of goods, services capital and people without regard to national boundaries.
This illustrates why sovereignty defined by the mutual recognition of geographic boundaries, ownership rights, self-governing authority, autonomy and monopoly of certain states to govern their own spaces such as state power to criminalise harms committed by corporations in the pursuit of a globalised economy has rendered corporate harm beyond the remit of state power. A point validated by the European Union, (2017) timeline which details: 1970-1979 a growing community and the first enlargement, 1990-1999 a Europe without frontiers. In 1993 the single market was completed with the four freedoms (movement of goods, services, people and capital).
In order to facilitate the adoption of a unified market (by the end of 1992) the Single European Act (SEA) replaced many unanimous decision-making processes with Qualified Majority Voting (QMV) allowing over 280 pieces of legislation to be passed, paving the way for common EU laws based on the principle of mutual recognition among Member States (Parliament.UK, 2013). What this makes apparent is the correlation between increased corporate power and decreased state power revealing why it can be claimed that a unified market ousted corporate harm beyond the remit of state power.
The notion of corporate counter revolution evidences changes implemented by states as a result of forging a unified single market (Snider, 2007). For this reason virtually every OECD country through the 1980's and 1990's adopted a neo-liberal approach legitimising every acquisitive, profit-generating ventures within the corporate sector and deregulation of policy which impedes it and why legal regulation has declined resulting in a weakening of the social safety net (ibid). With this in mind state power to criminalise harms committed by corporations may appear to be restricted because of unintended consequences on the economy and/or social stability.
In contrast unjust, problematic and contested notions of crime and justice are challenged through the mobilisation of people to work for social change. Social justice defined as ideas about what makes society fair encompassing beliefs about the rights, freedoms, duties, and opportunities that individuals are entitled to leads individuals and groups to mobilise and join protests, pressure groups, riots, and revolutions (Rowe, 2015). Families against corporate killings (FACK) campaigners launched in July 2006, fought to have corporate harms committed within the workplace recognised by criminal law and accountable within crime and justice systems. FACK campaigners lobbied MP’s, and gained a voice at policymaking levels. As a result The Corporate Manslaughter and Corporate Homicide Act 2007, brought into force in April 2008, was created as a new offence respectively named corporate manslaughter in England and Wales and Northern Ireland, and corporate homicide in Scotland (Legislation.gov.uk, 2017). FACK campaign members were concerned that financial loss would be the favoured form of justice instead of imprisonment for corporations/corporate representatives convicted of corporate manslaughter.
To counter argue the effectiveness of social movement and citizen participation, McBarnett's (2006) concept of whiter than white collar crime evidences how corporations render their harms 'perfectly legal or at least not expressly illegal'. McBarnett's concept of creative compliance reveals how corporations use professional advisers with knowledge of the law such as barristers to take advantage of legal loopholes to resolve legal problems such as cases of corporate manslaughter revealing how they use the 'letter of the law to defeat it's spirit'.
This is evidenced by the case brought forward against Geotechnical (Holdings) Ltd Company who received an unlimited fine after becoming the first to be convicted by Winchester Crown Court under new corporate manslaughter legislation following the death of a young geologist who died when a pit collapsed on him (The Telegraph, 2011). This supports the concerns raised by FACK campaign members. According to law firm Pinsent Masons, in 2012, sixty three new corporate manslaughter cases were opened, this was up from forty five in 2011, three cases had resulted in convictions, and there were fifty six prosecutions ongoing. Joyston-Bechal, partner at Pinsent Masons advised cases of corporate crime against corporations were rapidly growing and companies should not become complacent or dismiss the risk due to the low conviction rate (Gosden, 2013).
What this makes clear is how power of social movements, campaign organisations, citizen participation, citizen action groups and citizens as consumers can influence state and corporate practices through boycotting, protesting, politically lobbying and purchasing fair trade goods certain injustices committed by corporations can be addressed. This enactment of The Corporate Manslaughter and Corporate Homicide Act 2007 demonstrates that corporate harm is not beyond the remit of state power and evidences that states are not powerless to criminalise harms perpetrated by corporations.
References
Chan, P. (2011) 'History of corporate manslaughter: five key cases' The Telegraph [Online] Available at http://www.telegraph.co.uk/finance/yourbusiness/8330905/History-of-corporate-manslaughter-five-key-cases.html (Assessed 18th April 2017)
European Union. (2017) The history of the European Union [Online] Available at
https://europa.eu/european-union/about-eu/history_en (Accessed 16th April 2017)
Gosden, E, (2013) 'Corporate Manslaughter and Corporate Homicide Act 2007' The Telegraph [Online] Available at http://www.telegraph.co.uk/finance/financial-crime/9830480/Corporate-manslaughter-cases-rise.html (Accessed on 18th April 2017)
Legislation.gov.uk. (2017) Corporate Manslaughter and Corporate Homicide Act 2007 [Online] Available at http://www.legislation.gov.uk/ukpga/2007/19/crossheading/corporate-manslaughter-and-corporate-homicide (Accessed 15th April 2017)
McBarnett, D. (2006) ‘After Enron will “whiter than white-collar crime” still wash?’, British Journal of Criminology, vol. 46, no. 6, pp.1091–1109. [Online] Available at
https://academic-oup-com.libezproxy.open.ac.uk/bjc/article/46/6/1091/389355/After-Enron-will-Whiter-than-White-Collar-Crime (Accessed 22nd April 2017)
Parliament.UK (2013) 'Parliament and Europe' The EEC and the Single European Act [Online] Available at
http://www.parliament.uk/about/living-heritage/evolutionofparliament/legislativescrutiny/parliament-and-europe/overview/britain-and-eec-to-single-european-act/ (Accessed 17th April 2017)
Snider, L. (2000) ‘The sociology of corporate crime: an obituary (or: Whose knowledge claims have legs?)’, Theoretical Criminology, vol. 4, no. 2, pp. 169–206. [Online] Available at
http://oro.open.ac.uk/46191/1/%20S%20%20%282007%29%20A%20Political%20Economy%20of%20Corporate%20Killing_ORO.pdf (Accessed 4th April 2017)
The Telegraph. (2011) 'Company convicted of first corporate manslaughter' [Online] Available at http://www.telegraph.co.uk/news/uknews/crime/8326681/Company-convicted-of-first-corporate-manslaughter.html (Accessed 18th April 2017)
_____________________________________________________________________________________________________
Please cite this article as:
Hartles, S (2017) Is corporate harm beyond the remit of state power? [Online] Available at https://sharonhartles.weebly.com/is-corporate-harm-beyond-the-remit-of-state-power.html(Accessed)
ATTRIBUTION
All works are Open Access articles distributed under the terms of the Creative Commons Attribution License, which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original works are properly cited.
© Sharon Hartles 2022.