If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Clause 4 [Military activities]:
44: Clause 4 , page 4, line 12, leave out “in preparation for, or”
The noble Lord said: The amendment, in my name and that of my noble friend Lord Razzall, relates to Clause 4, on military activities. Amendment No. 49 relates to Clause 5, on policing and law enforcement. Both concern the removal of the exemption for pre-operation activities.
Our broad position is that the Bill provides excessive exemptions for the MoD and the police, and we seek to narrow them fundamentally. Perhaps I can set out our attitude to our Armed Forces and the MoD in the context of corporate manslaughter.
Having been a Defence Minister in the 1980s, I have great personal respect for the MoD and our Armed Forces. I well remember during that period having many discussions with the noble Lord, Lord Hunt of Wirral, as he lobbied me hard for frigate and submarine build orders for Cammell Laird. I have to say that then, as now, he was very persuasive and, I am glad to say, at the end of the day successful. Then, as now, there were pressures on the overall MoD budget, and I suspect that there always will be, so it boils down to priorities. We are keen to differentiate between what one may term normal peace-time training, more hazardous training, which we accept will be necessary from time to time, and training for our special forces, which, by definition, is likely invariably to involve greater danger.
We have moved on from the days when anyone enlisted or conscripted into the Armed Forces could or should be expected to put their lives on the line and be sent into action anywhere in the world, irrespective of the quality and quantity of equipment provided for them. Naturally, I exclude all-out war in this context. I am talking about what one may term premeditated possible conflict, as in Iraq or Afghanistan, or perhaps in a peacekeeping role, with or without UN support.
We believe that, when our troops participate in this way, there is a duty on the MoD to properly equip and support them. Failure to do so should render the Ministry of Defence potentially liable to a charge of corporate manslaughter. I am not talking about the absolute latest high-tech gadgetry or equipment but about, for example, body armour or the lack of it, as we saw in the tragic death of Sergeant Roberts, which my noble friend Lord Tyler raised at Second Reading and in Questions last week.
On training, for example, I read at the weekend the headline, “Army to blame for firing range death”. In the article, a coroner criticised the Army for “serious failures” in how it managed a firing range in Iraq where a young soldier accidentally shot himself in the head. According to the evidence, there were serious failures in the planning for the range and,
“a cavalier approach to the standing orders put in place to provide for the safety of those using the range”.
I beg to move.
From these Benches, we of course want to see the blanket exemption for military combat operations maintained. I have been greatly assisted in preparing for this debate by the fact that my noble friend Lord Henley was also a Defence Minister. I am very grateful for the kind and generous remarks made by the noble Lord, Lord Lee, in that context already. Amendment No. 44 would ensure that activities carried out in preparation for training operations would not be exempt from the duty of care owed by the Ministry of Defence. We therefore support this amendment and Amendment No. 49, although we would want Clause 4 to remain part of the Bill.
As an ex-military man, I am entirely in sympathy with what the noble Lord, Lord Hunt, has said. We have heard a certain amount during this debate about the need for common sense and that the person in the boardroom should understand what this is all about. In this case, the boardroom is the military officers who are responsible for preparing troops for war. I do not believe that they would see any difference between the words “preparation” and “training”. They could not do that. Therefore, I hope very much that the amendment will not be accepted.
I have noted the concerns expressed in this brief debate, both on the specific question of preparatory activities and on whether there should be any specific exemption for military activities. I preface my remarks with the general point that the operational activities of the Armed Forces represent exclusively public functions and therefore fall to be exempt under Clause 3(2). However, that exemption does not apply to duties owed as employer and occupier. By contrast, the exemption in Clause 4 operates across all categories of the relevant duty of care. It is therefore of most substantive effect in respect of the responsibilities of the Ministry of Defence as employer, and I shall focus on that aspect.
The Armed Forces, by the very nature of their activities, are in a unique position, often working in extremely difficult and volatile situations where military objectives are imperative. That raises very difficult questions about the extent to which the courts should later scrutinise their decisions about the way those objectives were secured and whether the systems in place for carrying out those activities were adequate. Those difficulties have been recognised in the civil courts, and it is now an established part of the civil law that a combat immunity extends to the Armed Forces. The courts have expressed it in these terms:
“In the course of hostilities service personnel will be exposed to the risk of death and of injury, both physical and psychological. That is the nature of warfare. But the welfare of the soldier, sailor or airman must be subordinated to their combat role”.
Those are the dicta of Mr Justice Owen expressed in a case in 2003, Multiple Claimants v Ministry of Defence. Here is another quote from Mr Justice Starke, in Shaw Savill and Albion Co Ltd v The Commonwealth:
“There is no doubt that the executive government and its officers must conduct operations of war, whether naval, military, or in the air, without the control or interference of the courts of law. Acts done in the course of such operations are not jusiticable and the courts of law cannot take cognizance of them”.
Clause 4 is based on that concept. I believe that it is right that such immunity should extend for the purposes of the new offence. To the extent that the opposition to Clause 4 standing part of the Bill is aimed at bringing combat operations within the scope of the offence, I resist the suggestion.
I phrase my remarks in that way because one of the consequences of the recognition of a combat immunity is that, whether or not an exemption is specifically granted in the Bill, the Armed Forces will not owe a duty of care where combat immunity applies. This provision is important for the sake of clarity for the Armed Forces and to remove the possibility of speculative and potentially damaging prosecutions. But it also means that, for combat immunity, we are not exempting activities that would otherwise be covered.
There is the specific question of preparatory activities. Combat immunity recognises that preparatory activities should be exempt from liability. At the risk of providing the Committee with a legal lecture, in the leading case on combat immunity, to which I have already referred, Mr Justice Owen stated:
“In aggressive operations the objective will be defeat of the enemy; in defensive operations the successful repulse of the enemy. In the planning of and preparation for such operations the interest of service personnel must be subordinate to the attainment of the military objective. In my judgement the military cannot be constrained by the imposition of civil liability in the planning of and preparation for such operations any more than in their execution”.
We are satisfied that it is right that this aspect of combat immunity should extend to the new offence. If criminal liability were potentially to attach to decisions made during the lead-up to combat operations, commanders may become risk-averse at a time when military imperatives require them to focus completely on the military task in hand. Logistic constraints will always restrict the personnel and kit that can be made available and will always limit the available options. This will mean that all involved will operate under stress, and to restrict the exemption to “combat only” would risk giving undue prominence to one of the many factors that commanders should have in mind when preparing to deploy.
Similar arguments apply in respect of the police. Operations tackling terrorism, civil unrest and serious disorder will place very significant pressures on police forces and may well be carried out in haste in emergency situations. The police and other law enforcers will not necessarily have the luxury of time or resources to ensure that all their obligations under health and safety have been met before attending to the situation. That could be detrimental to the protection of the public from serious threats.
Some concern has been expressed that “preparation for” could be interpreted very widely by the courts to cover routine training or, for example, routine maintenance of riot control equipment. That is not the intention, and it would be a very wide reading of the term, particularly given that specific mention is made of training in both Clauses 4 and 5, which exempt only “hazardous” training. We are therefore satisfied that it would not cover activities such as basic recruit training, training for new roles or equipment, adventurous training, or the normal testing or evaluation of equipment. It would also stretch the meaning of “in preparation for” too far to include routine maintenance of equipment. The exemptions deal with activities that are,
“in preparation for, or directly in support of”,
particular operations. We think that supports a narrow reading of the exemption where the police or Ministry of Defence will need to establish a proper connection between the activities in question and relevant operational activity.
For the Armed Forces, examples of what would fall within the exemption include the organisation of forward deployments in immediate preparation for combat; reconnaissance missions; the establishment of supply chains in readiness for operations; and some conditioning exercises, such as live fire training exercises or acclimatisation activities that are designed to prepare members of the Armed Forces for the particular circumstances they are likely to encounter. Similar activities preparing officers for an operation or particular operational circumstances would be covered for the police.
I hope that I may have persuaded the Committee that exempting the Armed Forces in respect of operational activity is both right and proper, and that the exemption should extend to preparatory activities. I do not believe that that is an open-ended exemption, but it recognises the considerable complexities that our Armed Forces and police face in preparing for particular operations or operational circumstances.
Any life lost as a result of poor decision-making in that process is a tragedy. However, our operational forces must to a degree be provided with the scope to operate free from liability under either civil or criminal law. The Bill draws the line in a recognised and appropriate place. I therefore urge the noble Lord, Lord Lee, to withdraw his amendment.
In this group, we are also considering whether the whole clause should stand part of the Bill. An example of complete communication failure from the 19th century is the Charge of the Light Brigade. I understand that the brigade was tasked with charging different guns, but communications became muddled and it ended up attacking guns well up the Valley of Death, as we well know, and coming to considerable grief. Will the Minister explain whether that incompetent communication between commanders would have ended up as being corporate homicide?
I am sorry that the Minister seems to have been unable or unwilling to differentiate between the example of body armour or protective clothing being available to the police or to the military, and aggressive or combat operations, which I certainly did not attempt to bring within the scope of the Bill. I hear what he says. I am sure that we will return to the matter on Report. In the circumstances, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
45: Clause 4 , page 4, line 32, at end insert—
“(5) This section shall not apply where the relevant duty of care in respect of which the Ministry of Defence was in breach was a duty to provide adequate equipment or training, or was a failure to provide for such reinforcements as might reasonably have been expected.”
The noble Lord said: I recognise the force of the arguments advanced in favour of a blanket exemption for military combat operations. I tabled the amendment to seek a response from the Government with regard to particular circumstances in which the Ministry of Defence had failed in its duty to provide adequate equipment or training. Under the amendment, no case could be brought against the Ministry of Defence for the way in which its forces acted in active combat, in anti-terrorism operations or in incidents of public disorder when under attack. But were the MoD to mismanage the provision of training and adequate equipment to such a degree that it amounted to a gross breach of its duty of care to provide adequate equipment or training, this amendment would ensure that proceedings could be brought against it. Were it to be accepted by the Government, such an amendment would send a very important signal to our service men and women about how much we value them and how much we are prepared to do to ensure that they have the right amount and quality of equipment and training. I beg to move.
In 1940 very many would-be pilots never actually made it to the Battle of Britain because, sadly, they died in training before they got there. Those who made it had a life expectancy measured in weeks; certainly, their training was inadequate.
I hope that the operations on which United Kingdom forces are engaged at present allow for better training and better provision of safety equipment such as body armour. But in a hypothetical conflict in which Britain is under attack, either through terrorism or in a more conventional way, might not a 1940-type situation be caught by the noble Lord’s amendment? Is that not a reason to resist the amendment? We are dealing with the security of the nation. Sometimes, sadly, we have to ask young men, and now women, to put their lives on the line so that in future we can have the kind of debate that the Committee is having today.
I again declare an interest as a former military officer. I sympathise entirely with the views of the noble Lord, Lord Lee, on including the failure to provide essential equipment, such as happened in the tragic case of Sergeant Roberts, who lacked a flak-jacket. This is a better point at which to have that debate than when talking about preparation, which can be included in training. We all agree with that. I suspect that at the back of noble Lords’ minds are cases such as those at Deepcut, which we recently discussed. That was not operational training, preparation for operations or anything to do with equipment.
I sympathise with the views expressed on equipment. I was in such a position when I took my company to Borneo in 1965. We were largely equipped from the streets of Singapore, where we bought equipment because it was stupid to go off into the jungle with our only bedding a large greatcoat with a hole in the middle, which had been designed to enable guardsmen to drill in the rain, and an army blanket that was so heavy that when it got wet—you always were wet in the jungle—that it was absolutely pointless having it. We ended up having 30lbs on our back as opposed to the 72lbs that we would have had to carry if we had taken the military equipment. That was not necessarily a failure on the part of the Government of the time; equipment was available which suited some places, but not Borneo.
I can see the case for the amendment. I refer to circumstances where you cannot say, for example, that there is a front line. Everyone driving in Iraq may well need a flak-jacket because they may well come under fire. That is fine. However, I am a little concerned about including “training” in the measure because it is such a catch-all term. Pilot training in 1940 was mentioned. I call that operational training; therefore, to my mind, it does not qualify.
I have been on exercises when soldiers were killed, many of them in traffic accidents and other incidents which you cannot really say represented a failure of ministerial responsibility. I am a touch worried about this. I agree with the sentiment of this provision; for example, the lack of a flak jacket for Sergeant Roberts was occasioned by the fact that the request for purchasing such equipment sat unsigned on the Secretary of State’s desk for up to six months. That suggests to me a failure of ministerial responsibility and culpability. If officials play a part, they have managerial responsibility, which seems to me to come entirely within the remit of the Bill. It would therefore be perverse on these occasions if the Ministry of Defence and such activities were excluded. But I have a slight hang-up about the question of training.
This amendment could help the senior military officers who ultimately have to advise the Government whether the Army or Royal Air Force is ready to go on a mission. The noble and learned Lord the former Lord Advocate raised the issue of home defence. I see home defence and the slightly more voluntary operations in which we now seem to be getting involved as slightly different situations. Senior military officers would have a clear idea about whether the Army was ready for a mission, according to whether it was properly equipped.
I have spoken at some length on the question of exempting the military in certain circumstances. The amendment recognises the case for exemption but proposes to narrow it in key respects.
Many of the general points that I have made about exempting the military are equally applicable in this context. The current exemption for the Armed Forces in relation to operations, or when engaged in activities of a war-like nature, recognises the inherent nature of conflict and combat, where decisions have to be taken quickly, often with imperfect information and sometimes where all alternatives are unpalatable.
The civil courts have already recognised that they are not in an appropriate position to assess questions about how military objectives were obtained. As I mentioned in our previous debate, this takes the form of a combat immunity, a consequence of which is that the Bill does not exempt activities in this respect, as they are not covered by a duty of care. That is relevant here, too, because it limits the effect of this amendment. It would not bring matters of training and equipment within the scope of the offence because no relevant duty of care is owed in respect of the sort of combat circumstances covered by the exemption as it stands.
To bring those sorts of circumstances within the scope of the offence would mean not only removing this exemption from the Bill, but also creating a new duty of care. That would represent a far more extensive change in the law than we are currently considering, even taking into account the lifting of Crown immunity, and it would involve much wider questions about where the Armed Forces should owe duties of care. The Bill is not an appropriate vehicle for that sort of debate, and it is a route that the Government would be very reluctant to go down in any event.
Nevertheless, I appreciate the importance of this issue and wish to respond to the concerns it raises. We have considered carefully, in consultation with the Ministry of Defence, the extent to which the military should be exempt from the offence. There are very clear concerns that seeking to apply corporate manslaughter laws to combat situations would be onerous and would threaten judgments of commanding officers who are trying to do the best they can in the circumstances. Nor do we think it would be possible sensibly to divide operational judgments into those that might be subject to corporate manslaughter laws and those that are not.
In the case of this amendment, who is to decide what constitutes “adequate training”? Would the Armed Forces risk liability if a commanding officer ordered soldiers to carry out dangerous activities because, in the heat of battle, that was the only recourse available to him, even though they might not have had the ideal equipment or training?
There might be similar difficulties with judging whether there had been “failure to provide reinforcements”. Might a divisional commander be entitled to refuse to carry out a potentially battle-winning strike unless he is promised an array of reinforcements? Operational front-line commanders must retain the ability to make appropriate operational decisions based on dynamic risk assessment, and it would be unduly onerous to impose liability in these sorts of circumstance.
The death of Sergeant Steven Roberts in Iraq, in circumstances in which he had been required to hand in his body armour, was a tragedy and I express my deepest sympathy to his family and others who loved him. That case has been fully investigated and was subject to a coroner’s inquest that delivered a narrative verdict in December. This ensured a full and public examination of the circumstances of his death and the factors surrounding it. That is of course important, but we do not believe that the criminal law can simply be superimposed in these circumstances. That would bring the way in which the Armed Forces prepared for combat operations, and supplied and deployed their forces in the field, within the ambit of the criminal law. This risks placing a heavy new onus on senior commanders and distorting operational priorities by placing a particular emphasis on one set of factors. Combat operations cannot be susceptible to this if we wish to retain our full operational effectiveness.
These are enormously difficult circumstances, and each death will be a tragedy. Drawing a line that excludes any of them from the ambit of the offence will inevitably appear harsh and unjust. Lifting Crown immunity would bring the criminal law into the workings of the Government, including the Ministry of Defence, to a very considerable extent. But we are clear that the discharge of public responsibilities, including the way in which combat operations are prepared for and waged, are not areas where the criminal law ought to apply. I therefore urge the noble Lord, Lord Hunt, to withdraw his amendment.
I am grateful to the noble and learned Lord, Lord Boyd, the noble Lord, Lord Ramsbotham, and the noble Earl, Lord Mar and Kellie, for their contributions. This is a difficult area. The whole question of inadequate equipment raises a number of issues, and I am therefore also grateful to the noble and learned Lord, Lord Davidson, for his response. It is a difficult decision and I will want to reflect on it, particularly on the points made by the noble Lord, Lord Ramsbotham, about training. I am now left to think about ways in which we can address cases where there has been a gross breach of the duty of care in respect of equipment. Perhaps we shall return to this at a later stage. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 [Policing and law enforcement]:
46: Clause 5, page 4, line 34, leave out subsection (1) and insert—
“(1) Subject to subsection (5), subsection (3) shall apply where—
(a) it is established that a public authority owed a relevant duty of care to a person, (b) the duty of care was owed in respect of— (i) operations within subsection (2), (ii) activities carried on in preparation for, or directly in support of, such operations, (iii) training of a necessarily hazardous nature, or training carried out in a necessarily hazardous way, in order to improve or maintain the effectiveness of the police with respect to such operations, or (iv) policing or law enforcement activities which do not fall within section 2(1)(a) or (b), and (c) it falls to the jury to decide whether there was a gross breach of that duty of care.”
The noble Lord said: I shall also speak to Amendments Nos. 47, 48, 53, 54 and 57. I understand that the group also includes Amendment No. 52 and the Question whether Clause 5 should stand part, tabled in the name of the noble Lord, Lord Lee. I appreciate that some of the arguments that will be put forward both on this side and by the noble Lord, Lord Bassam, will be similar to those we have heard in regard to Clause 4, on military activities. However, I hope that we can still exercise them, and I certainly look forward to hearing what the noble Lord has to say.
This group of amendments seeks to cancel the blanket exemption in regard to the deaths of civilians caused by the gross negligence of the police or other public authorities in the performance of policing or law enforcement activities, and to cancel the exemption in regard to the killing of members of the public and employees of a police force which occurs in connection with operations or training for dealing with terrorism, civil unrest or public disorder in which the police come under attack or face the threat of attack or violent resistance. There is nothing inherent in the nature of the work carried out by organisations involved in law enforcement that justifies their exemption from criminal liability for causing death by negligence. I will not say anything at this stage about the de Menezes case, but obviously it comes to mind.
Amendments Nos. 46, 53 and 57 address the core of the matter by removing the exemptions and replacing them with the requirement for the jury to take account of the situation in which the police or other law enforcement authorities were in when assessing whether there has been a gross breach of a relevant duty of care. Rather than the present blanket exemption, the wording in the amendments would ensure that the jury would be required to conclude that the body’s conduct had fallen far below what could reasonably be expected in the circumstances—I emphasise the words “in the circumstances”. That consideration would be circumscribed by the mitigating factors that the jury would have to take into account under Amendments Nos. 53 and 57.
Amendments Nos. 48 and 54 offer two alternative methods of applying the duty of care owed by policing and other law enforcement organisations to members of the public. Amendment No. 54 simply cancels the blanket exemption of policing duties by rerouting the application of the clause through the amendments that I proposed to Clause 2, which would extend the application of any duty of care owed by organisations. Amendment No. 48 would ensure that, were Clause 5 to remain as it is, it would not apply where the duty of care that was breached was owed to members of the public. Again, it refers to amendments to Clause 2. I beg to move.
Can the Minister explain whether the police are in any danger over deaths that result from hot-pursuit vehicle chases? When it was announced earlier this week that two young men had died on the Underground while running away from what I think was a graffiti bombing and video trip, there was an implication in the news media that they had been chased by staff away from something that they should not have been doing. I hope that the Bill covers that. Can the Minister help me on that?
I have a small legal point. One part of law enforcement which impacts on the Prison Service that is not specifically covered is the escort of prisoners. If that is carried out on a commercial basis, it seems to me to be covered by Clause 2(1)(c)(iii), which covers,
“the carrying on by the organisation of any other activity on a commercial basis”,
because the organisation is being paid for it. I am concerned about the escorting of prisoners by members of the Prison Service, for instance, when in a way they have the responsibility of constables. That constable status exists while they are inside prison premises. As I said, this may be a small legal point, but there are occasions where things happen to prisoners while they are being transported that might come up under the Bill.
This exemption, as I understand it—perhaps the Minister will confirm this—applies where law enforcement operations are,
“dealing with terrorism, civil unrest or serious public disorder”,
and not otherwise, so ordinary policing operations are not caught by it. I have a worry about this. Five years ago, we did not anticipate the terrorist threat that we now face in this country. Certainly I believe from everything that I learnt from my time as Lord Advocate that it is extremely serious in this country. It is also clear that there are those who will threaten the country with chemical, biological or radioactive material. We may have to respond very quickly to these threats as they develop. I am concerned that if we were to include, for example, adequate training and the provision of equipment, training that is absolutely necessary for protecting the civil population might not happen because, for example, there is no adequate equipment or people will think that there is no adequate equipment.
The Bill is rightly creating a society averse to the risk of death, but I am concerned that at some point we will face in this country unforeseen threats which we must respond to very quickly, and one would not want the preparations or the training for these threats to go by the board simply because we are waiting until all the equipment and training are in place.
I declare an interest as a serving police officer for more than 30 years; indeed, I served in the significant tactical front-line and strategic ranks in incidents of severe public disorder. Everything that was adduced to support the previous clause can equally be adduced to support this one. I was much taken with the noble Lord’s comment about reviewing the Bill to cover gross breaches in relation to inadequate equipment. I would support a provision to deal with such negligence.
The noble Lord, Lord Ramsbotham, spoke very eloquently about military training. Very much the same arguments apply to the training of the police. It would be a mistake to prevent the police having access to training that would prepare them for violence on the streets, which has been rapidly increasing for some time. In the lifetime of most of the occupants of this Room, we have seen the policing of severe disorder move from the policing of the sort that we saw in Grosvenor Square in the 1960s, when the police simply linked arms and leant against the crowd, to firearms being discharged against the police and petrol bombs being used, which I have experienced. Of course we now face a whole range of theoretical possibilities, which I need not go into. I support the clause as it stands.
I am very grateful to all those who have taken part in the debate. I agree in essence with the point that the noble Lord, Lord Dear, has just made: this is in a sense a re-run of earlier debates. Nevertheless, it is important for me to recite the Government’s position, because some refinements have been made to it and there are important points of distinction.
It might help if I outline some of the general principles behind Clause 5 before moving to the more specific points that have arisen.
There are three important points, and there will probably be a degree of agreement on these in the Committee. First, the police are not and must not be above the law. This is a basic tenet of policing within the democratic framework, and it must be the overriding principle in any debate of this nature. Secondly, and linked to the first point, in limiting the scope of the offence as we have done we have not acted lightly or gone beyond what we feel is absolutely necessary in the circumstances. I fully sympathise with the attempts to widen the scope of the Bill to cover matters more fully, but, for the reasons that I shall enumerate, I cannot agree that it is the right approach.
The third, and perhaps final, general point is that we have to take proper account of the nature of police business. The business of policing, at its most basic, is managing conflicting risks to protect us, the public, from each other. The police are, as the noble Lord, Lord Dear, said, in the front line. We have put them there. They do a job for us. They have no alternatives. There is no one else to whom they can pass the buck, and they are duty-bound to carry out their activities. In contrast to a private organisation, they cannot withdraw their services because of a lack of resources. Instead, they must balance resources in order to meet demand. In doing so they must take into account the public interest on the one hand and the rights of individuals involved on the other.
Where the police function as a normal business in their duties to their employees and as owners of property, we feel that, with some minimal exceptions that I will come to later, the new offence should apply. These are the core health and safety duties that the offence is essentially designed to cover. But, where the police are engaged in their policing activities, our firm view is that it would be wrong to bring in the criminal law, as with military activities. The civil courts have been cautious in judging how far the duty of care should extend. They have not thought it right to try to judge the kind of operational decisions involved in all types of policing activities, and they have been rightly concerned that bringing the courts into this kind of area could make the police risk-averse.
Many noble Lords appear to accept that the police and law enforcers are worthy of special treatment because of their particular position. Drawing a line between the types of activity that the police engage in—which should be in and which should be out—is not easy. I am grateful to noble Lords for their additional contributions in helping us with this consideration. I have to conclude that we are not convinced that they offer enough certainty for the police, or that they are the right way to go. In the light of these arguments and the very persuasive comments during the debate, I hope that I can persuade noble Lords to support the clause as it is and withdraw the amendment.
Before I sit down, I shall try to cover the points usefully made in the discussion. The noble Earl, Lord Mar and Kellie, asked about police being endangered in high-speed chases in pursuit of criminals. The offence does not apply in respect of how police carry out their core functions and how those have an impact on the public. However, the offence applies in these circumstances in respect of the officers themselves. Police forces owe duties to their constables to provide a safe system of work. That makes very few inroads into that.
To answer the point raised by the noble Lord, Lord Ramsbotham, we debated the escort of prisoners by commercial organisations when talking about custody issues. That would be exclusively a public function and therefore excluded.
I am grateful for all noble Lords’ contributions. These are not amendments with which we can agree. We feel that, on exemptions, we have got the balance about right. Having listened to the debate, I believe that, by and large, the Committee agrees with that point. This is a difficult area. It is right that we have this proper debate about where the boundaries should be drawn, but I believe that we have them about right.
I suppose that I ought to say that I am grateful to the noble Lord, Lord Bassam, for his comments, but there seemed to me to be some confusion in his remarks. Somewhere roughly in the middle of his speech he seemed rather to lose his thread. I shall have to look very carefully at what he had to say in dealing with my amendments.
Having said that, I am very grateful to the noble Lord, Lord Ramsbotham, for his comments. I shall look very carefully at what he had to say about prison officers and their role, particularly when they are escorting offenders to and from court, and the different ways in which they are treated according to whether they are prison officers or private sector staff.
I agree wholeheartedly with what the noble and learned Lord, Lord Boyd of Duncansby, said about the change in the terrorism threat. I was reminded of this only yesterday. When I first came to this House, when the late Lord Callaghan was Prime Minister, I remember seeing him, accompanied by someone whom I presumed was a civil servant—he may have been a detective—walking from No. 10 to the Houses of Parliament. When I saw streaming along the Mall yesterday three police motorcycles and what I took to be the Prime Minister’s car, followed by three further cars, I realised just how much things had changed over a relatively short time. We always have to bear that in mind when we consider legislation of this sort.
The same is obviously true of what the noble Lord, Lord Dear, had to say about changes in civil disorder. I can just about remember the events in Grosvenor Square in 1968, although I was too young to be involved. I do not know whether the noble Lord, Lord Bassam, was there. If he was not, I am sure that he was there in spirit.
I was only 15 at the time. I think that neither the noble Lord nor I was there, but whether the noble Lord was there in spirit is another matter.
As I said, I will look very carefully indeed at what the noble Lord had to say and consider how we want to take forward these amendments at a later stage. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 47 to 49 not moved.]
50: Clause 5 , page 4, line 38, leave out paragraph (c)
The noble Lord said: Amendment No. 50 stands in my name and that of my noble friend Lord Hunt. It would remove paragraph (c) of Clause 5(1), which exempts training of a hazardous nature from any duty of care owed by a public authority. Here we come very much to a repeat of what was discussed earlier.
This subsection of Clause 5 buffers the existing protection afforded to policing and law enforcement by providing further immunity than that supplied by Clauses 2 and 3. Earlier we debated the important issue of custody. That is a debate to which we shall certainly return, and one in which there is considerable unanimity in the Committee other than on the government Front Bench. No doubt the noble and learned Lord will remember that debate and looks forward to returning to it at a later stage.
There is already strong protection for the police service under Clauses 2 and 3, where the Prison Service is also protected from any possible liability for deaths caused during hazardous training. Given that the Government added the extra clauses on specific public functions during the debate in another place, noble Lords on these Benches are pleased to have the opportunity to ensure that the new clauses establish an appropriate level of accountability within public authorities.
It goes without saying that the police face incredibly difficult challenges and that to face them properly, there must be the appropriate training. Our amendment would not impede that training. Where an individual died in training of a hazardous nature, the police force would be liable for conviction of corporate manslaughter only had the standard of safety offered fallen far below—it is worth emphasising the words “far below”, as we discussed it earlier on an amendment tabled by the noble Lord, Lord Wedderburn—what can reasonably be expected in the circumstances, so the standard of safety provision has been negligible.
I understand that the Association of Chief Police Officers, the Health and Safety Executive and the Home Office all signed an agreement in 2000 which was to establish a mutual understanding of the objectives of the HSE and the police service in relation to the inspection and enforcement of health and safety legislation. All parties agreed that the HSE should inspect training areas where hazardous training is being undertaken. The HSE makes it very clear in its operational circular that its inspectors’ primary concerns are in,
“the organisation, arrangements and written procedures for controlling and managing these activities”.
That is central to the point that we are making today.
The HSE recognises that hazardous training is necessary, and we agree with that. Police officers must be trained to deal with all kinds of unpredictable and extremely dangerous situations. We do not dispute that, but where the organisation of those operations is deficient and a death arises as a result of that deficiency that is entirely avoidable, I see no reason why the authority responsible should not take responsibility. Negligible organisation before an event that results in death at that event cannot be excused merely because the activity is hazardous. We are very reluctant to give the police protection for what would amount to gross incompetence in their training. Our amendment would address that. I beg to move.
Perhaps I should apologise for the slightly truncated nature of my comments earlier. I was attempting to spare the Committee too much repetitious argument. If the noble Lord, Lord Henley, spotted me changing tack slightly, that was why.
We have had some debate on police exemption, so I shall try to confine my remarks to why we think that the exemption should extend to hazardous training. First, perhaps I should explain more closely what the exemption covers. This is about training which is either hazardous in itself, or must necessarily be carried out in a hazardous way in order to prepare law enforcers for dealing with situations such as combating terrorism or serious public disorder, when the officers are faced with violence or the threat of it.
In practice, that means that it is a narrow exemption. I reassure the Committee that the exemption will not extend to routine training which is negligently carried out in a hazardous way. But the police do have to undergo training which is, by its nature, hazardous. For example, the police experience real petrol-bombing in training that they undergo to deal with riots. They must be able to experience this sort of training to prepare them properly for real incidents when they come under attack during riots. Much of that training focuses on how to ensure staff and aggressor safety during incidents, but necessarily includes real experiences of danger.
Our concern here is that bringing hazardous training within the scope of the offence would act as a disincentive to conducting hazardous but necessary training activity, which would be counterproductive and, we argue, would run the high risk of putting officers at even greater risk because of their lack of preparedness for acting properly in dangerous situations. I cannot believe that the noble Lord, Lord Henley, would want that to be the case. I am sure that, like me, he wants to have confidence in how the police service conducts itself and to ensure its safety and that of the public.
We do not want the police and other law enforcers to undertake training that avoids risky situations so that the first realistic riot situation that a police officer experiences is a genuine one. The question is whether a greater risk is posed by allowing training to continue as it does now so that officers are as prepared as possible for extremely serious incidents with no threat of corporate manslaughter, or by applying the offence to such training, at the risk that it will be carried out with fewer hazards, thereby transferring the risk to a real, live incident.
Our view, which is probably more commonly shared, is that the police are better protected by ensuring that training continues as it does at present. The exemption is narrowly drawn and will apply only to training that must be hazardously undertaken in order for the police to be able to deal with the serious threats they face in carrying out their duties. I hope that that answers the concerns of the noble Lord, Lord Henley, and that he will feel confident in withdrawing his amendment.
I am sorry that the noble Lord cannot offer me much more succour on this amendment. My point was that there already is an agreement, bound by statute and signed up to in 2000, between the Association of Chief Police Officers (ACPO), the Health and Safety Executive and the noble Lord’s former department, the Home Office, for which he speaks today. That seems to recognise that, however hazardous the training, it should take place in an environment that is, to a certain extent, controlled. Trying to be helpful to the Committee, we tabled the amendments with that in mind. Obviously, the noble Lord does not agree with me, so I will look very carefully at what he has said and consider whether to table the amendment on Report. In the mean time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
51: Clause 5 , page 4, line 43, leave out subsection (2)
The noble Lord said: This is one of a number of amendments designed to probe the Government’s reasoning for some of the amendments that they tabled on Report and at Third Reading in another place. The Government had no opportunity to explain what they were about, and Members of another place had no opportunity to probe the Government’s intentions. It is important for the Government to set out exactly what they mean. For those of a legal bent—there have been complaints from the noble Lords, Lord Razzall and Lord Lee, that there are too many lawyers involved in the Bill—perhaps I can explain why that is so important. The House of Lords case of a few years ago Pepper v Hart made clear that the considered remarks—if they are considered—of a Minister could be taken into account by the courts when interpreting the meaning of a statute.
We have tabled this amendment to remove subsection (2), which was added by the Government, to allow the noble Lord, Lord Bassam, as a member of the Government to give his considered views on exactly what the provision does, and to make clear to the Committee, and possibly later to the courts, what it adds to the Bill.
As we understand subsection (2), we are probably more than happy with it, but I still think that it behoves the noble Lord, given that his Government have brought in more than 20 amendments without discussion, to let us know what they are about. I beg to move.
I should express my gratitude to the noble Lord, Lord Henley, for that introduction because it provides us quite properly with an opportunity to explain the thinking behind the amendments which, as he has said, were moved in another place but on which there was little debate. This goes to the heart of describing types of public authority which are included in the drafting of the exemption in Clause 5(1) of public authorities facing violence when engaged in operations for dealing with terrorism, serious public disorder and civil unrest. No doubt the noble Lord will be able to tell me whether his understanding is the same as mine.
Concern was expressed that the term “public authority” could be interpreted too widely to include authorities which do not as part of their core business engage in policing and law enforcement activities. In particular there was concern about whether organisations involved only indirectly in dealing with terrorism or other such circumstances could also benefit from the exemption. In the light of that we undertook to look at the exemption one more time. Part of the reassurance on this point is that the public authority in question must be carrying out operations to deal with terrorism, civil unrest or serious disorder. This in itself restricts the organisations to which the exemption applies. However, having considered the clause again, we were of the view that without amendment it could apply to a public authority whose functions did not include policing or law enforcement activities. Potentially, this could be wider than we had intended, theoretically applying it to an organisation involved in other aspects of such circumstances.
We were not keen to list the public authorities to which this exemption should apply as there is always a risk with a list that something is left off, but we decided that the best way to restrict this exemption is to ensure both that the operations in question involve policing or law enforcement activities and that the authority must be one which has the functions of a police force or functions similar to those as defined in Clause 5(4). Our amendments tabled on Report in another place achieved that objective. I hope that that helps the noble Lord in his comprehension of the matter.
I am grateful to the noble Lord for that explanation. I have followed what he has said and I am more or less happy with what has been done. I have only one question to put to him before I consider how to proceed with my amendment, perhaps at a later stage. Paragraph (a) of subsection (2), added by the Government, allows for the exemption of the duty of care,
“where they are operations for dealing with terrorism, civil unrest or serious disorder”.
Does the Minister himself consider that the case of Jean Charles de Menezes would automatically be exempted and therefore come under paragraph (a)?
I am grateful to the noble Lord for that assurance. Again, I thank him for explaining what the amendment will do. Perhaps I may say once more how regrettable it was that the Government introduced all those amendments without discussion in another place, particularly on a Bill that had been through the draft Bill procedure and benefited from the carryover arrangements, thus allowing it to be considered in this House in a different Session from the one in which it had been dealt with in another place. That being the case, where it is quite obvious that there was no pressure of time for the Government, it would have behoved them to give it a little more time in another place. I appreciate that the noble Lord cannot speak for the business managers of another place, but I would be grateful if he would convey this message to his colleagues there because it would make their job and ours considerably easier should that normally be the case where there is no time pressure. Having got that off my chest, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 52 to 56 not moved.]
Clause 5 agreed to.
[Amendment No. 57 not moved.]
Clause 6 [Emergencies]:
58: Clause 6 , page 5, line 27, leave out subsection (1) and insert—
“(1) This section shall apply where—
(a) it is established that an organisation within section 2 owed a relevant duty of care to a person, (b) the duty of care does not fall within section 2(1)(a) or (b) and was owed— (i) by an organisation within section 2 in respect of the way in which it responds to emergency circumstances (or circumstances believed to be emergency circumstances), (ii) in respect of the carrying out, or attempted carrying out, of a rescue operation at sea in emergency circumstances (or circumstances believed to be emergency circumstances), or (iii) in respect of action taken either in order to comply with a direction under Schedule 3A to the Merchant Shipping Act 1995 (c. 21) (safety directions), or by virtue of paragraph 4 of that Schedule (action in lieu of direction), and (c) it falls to the jury to decide whether there was a gross breach of the duty of care.”
The noble Lord said: I shall also speak to Amendment No. 66, tabled in the names of my noble friends Lord Razzall and Lord Lee. These amendments would remove broad exemptions for emergency services in Clause 6 and further extended by the Government in the other place. The exemptions would be replaced with express requirements for the jury to consider the specific situation of the organisation in question. When determining whether that organisation had acted in a grossly negligent way, such considerations would include the nature of the emergency in question and resource conflict. Among other matters, I have in mind the exact words of the amendment; namely,
“the way in which it responds to emergency circumstances”.
At Second Reading, I drew attention to a case that arose when I was a Member for Weston-super-Mare in the other place. It was a heart-rending case where a much-loved daughter lost her life due to a collision with a fire engine. Her parents, naturally, were very distraught and wanted someone to be found to be accountable. Of course, many similar circumstances arise, but I was motivated to raise this example at Second Reading. I look forward to hearing the Minister and others. I beg to move.
I support the comments made by the noble Lord, Lord Cotter. If these amendments were to be accepted by the Government, the bar for any prosecutions would still be set extremely high and juries would be required to take a wealth of mitigating factors into account. I look forward to hearing the Government’s response.
The amendments spoken to by the noble Lord, Lord Cotter, standing in the name of the noble Lord, Lord Razzall, seek to apply the new offence to the emergency services subject to a number of considerations. Before addressing these amendments, I should like to explain why the exemptions provided by Clause 6 are necessary. The purpose of this new offence is to tackle organisations that create risks to the safety of others but do not manage those risks properly. We think that it would extend the concept of manslaughter too far to hold public authorities criminally responsible for their efforts to assist those in danger.
Clause 6, therefore, ensures that it is clear that a narrow range of organisations are not liable to prosecution for corporate manslaughter in respect of actions they take in response to emergency circumstances. This means that matters such as the timeliness of the response to an emergency, the level of response and the effectiveness of how the emergency is tackled are excluded from the ambit of the offence. The exemption applies only in terms of the way in which these organisations respond to emergency circumstances as defined in the Bill. Activities that do not form part of the response, such as maintaining vehicles or equipment, are not covered. Therefore, if a vehicle driven at speed to an emergency crashes because its brakes have not been adequately maintained, those circumstances would not be covered by this exemption. Nor does the exemption override duties of care owed by an organisation as an employer or occupier. Thus an authority otherwise benefiting from this exemption would still be under a duty to provide safe systems of work for its employees. For example, it would be required to provide adequate training for employees who are required to drive at speed.
The exemption does not generally remove liability from organisations that could currently be prosecuted for manslaughter. In most circumstances the organisations listed would not owe a duty of care in terms of their responses to emergencies, so even without the exemption they would not be subject to this offence. There are some situations in which this would be open to question. This could lead to uncertainty in the emergency services about where their criminal liabilities lie, which could encourage a culture of undue risk aversion in those services. We do not think that that would be in the public interest. We therefore think that there is value in the emergency services and similar organisations being clear about where their criminal liabilities lie, and Clause 6 achieves that.
The amendments tabled in the name of the noble Lord, Lord Razzall, seek to remove the emergency services exemption and to make those organisations liable for the offence where they owe a duty of care, subject to a number of considerations, which are set out. But, as I have said, in most circumstances the organisations covered by this clause would not owe a duty of care in terms of their response to emergencies. Therefore, the effect of the proposed amendment would in reality be minimal. It would not create liability where organisations do not owe duties of care, but it would create uncertainty, which could well distort operational priorities. We would not want that to be an outcome of the Bill.
We also question whether it would be realistic to expect the prosecution to be able to put all the considerations given in Amendment No. 66 before the jury, or fair to expect a jury to be able to make a balanced assessment of complex matters such as other relevant duties owed, resource constraints and public interest considerations when faced with a tragic case. I therefore think that the approach taken in the Bill—to restrict the exemption to tightly defined emergency circumstances—is better. It is in everyone’s interest to ensure that the emergency services and similar organisations will be clear about where their criminal liabilities lie.
In such an example, one would look at the individual liability of the driver. Reckless driving would seem to be the type of situation where one would look at purely individual responsibility. Issues such as training would come under the broader context of the clause.
I am grateful for the fact that we have addressed this concern today. I thank the noble Lord, Lord Hunt, for his support and for his succinct point that the bar for prosecution would still be very high. I should like to consider what the Minister said in his short and clear response to my noble friend’s point about the driver of, for example, a fire engine. The noble Lord, Lord Hunt, said that there were too many lawyers in this place. I do not necessarily go along with that; but not having a lawyer’s mind, I would like to consider what has been said and look forward to further discussion on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
59: Clause 6 , page 5, line 34, leave out paragraph (d) and insert—
“(d) any other organisation employing people whose duties involve extinguishing fires, or protecting life and property in the event of fire, or responding to emergency circumstances (or circumstances believed to be emergency circumstances);”
The noble Lord said: Amendment No. 59, which is grouped with Amendment No. 61, comes back to a question that was aired in Committee in the other place but unfortunately was not allowed time on Report. These amendments seek to improve two remaining unsatisfactory points relating to the precise extent of the exemptions in practice. Amendment No. 59 would allow commercial emergency services to be included in the exemption extended to statutory emergency services, and Amendment No. 61 is intended to clarify exactly where the duty of care ends by inserting the words,
“including any organisation providing healthcare services”.
Let us consider, for example, a situation where a patient is brought into a hospital under emergency conditions but is then transferred to another department in the hospital and sadly dies. The boundaries for exemption will be very unclear.
Turning to Amendment No. 59 in more detail, Clause 6 provides exemptions for the emergency services but expressly excludes commercial emergency services from the exemption. Subsection (2)(d) states clearly that,
“any other organisation providing a service of responding to emergency circumstances … otherwise than on a commercial basis”,
may be exempt from a corporate manslaughter charge should an individual die in potentially preventable circumstances.
I read the Minister’s argument in another place carefully, and with some incredulity, for he made the point clearly that:
“We must be careful about the implications of imposing legally binding duties or making organisations more risk averse”.
Quite rightly, Gerry Sutcliffe was emphasising that emergency services self-evidently need to take unusual and sometimes extreme risks in order to function efficiently and effectively in high-pressure emergency situations. That is absolutely right. The threat of a corporate manslaughter conviction would not effect the same change in culture in the emergency services as it could, for example, in the Prison Service or in large transport corporations, where there is time for reflection and planning. Indeed, he went on to say:
“The definition of an emergency situation is that the circumstances are life-threatening or threaten to cause serious injury or illness or harm to the environment or buildings or other property. The decisions taken are … split-second decisions. The exemptions that we are considering apply to these conditions, not to how the organisation goes about its business in general”.—[Official Report, Commons Standing Committee B, 26/10/06; col. 154.]
I should like to draw the attention of noble Lords to those last few words. The Minister in another place considers rightly that, when considering the exemption of the emergency services, we should take into account only the demands that those services will face and not the way their business is conducted outside those situations. That makes a great deal of sense. Those organisations will be exempted only in their capacity as emergency services, but it also flatly contradicts the letter of the new law as currently proposed.
Commercial emergency services face exactly the same difficult life-and-death decisions as a statutory authority when responding to emergency services. We must go further than that. A life-and-death decision is no less crucial purely because in one instance someone making it is paid and in another they are not. I just felt that the Minister’s response in another place to this question was rather dismissive and very revealing. Observing that the amendment would extend the exemption to all organisations that employ firefighters, he said that,
“a private company offering firefighting services to the film industry would benefit from that. We do not think that that is right. If a company offers such a service commercially, why should it be exempt from liability for performing negligently? The essence of the exemption is to exclude those bodies that fill a statutory or other public role in responding to an emergency and which are therefore subject to wider considerations involving the public interest in meeting the demands on them”.—[Official Report, Commons Standing Committee B, 26/10/06; col. 145.]
That is the crux of the argument.
The simple fact is that privately employed firefighters at an airport or a film studio are not so very different from those employed by the state or its agencies. They are there for a reason, which is essentially to be found in statute either directly or indirectly. They are there for reasons of health and safety or for the requirements of statutory employers’ liability. Of course, we do not want them to be remiss in their duties of care, or to be grossly negligent, but in an emergency situation they will face exactly the same split-second dilemmas that any other firefighter might. It is very surprising that, purely by virtue of their commercial nature, non-statutory, non-volunteering emergency services will be under threat of a corporate manslaughter charge should their actions unintentionally result in the death of an individual during an emergency.
I should like to refer noble Lords to the Minister’s warning against refusing exemption for emergency services purely on the basis of how they, as they put it, go about their business in general. Yet that is precisely the reasoning behind the Minister’s current argument. I hope to reiterate that Amendment No. 59 would ensure that this new law does not render the private emergency services risk averse. I hope that the noble and learned Lord who will respond, and other noble Lords, can consider how much of an incentive there is for privately owned emergency services to execute their services efficiently. They have a commercial reputation to maintain, but without the protection of an exemption those services will be forced to take into account potential liability, which would seriously debilitate their effectiveness in carrying out their services.
Amendment No. 61 seeks to establish where the exemption ends and the duty of care begins in the course of treating a victim of an emergency. The amendment would include treatment centres in the exemption when read alongside subsections (3) and (4) of Clause 6. That would mean that in my previous example, where a patient was passed into the mainstream department of a hospital rather than being kept waiting in A&E, the exemption would hold firm. Amendment No. 61 is not intended to cast the net for exemption wide—far from it. On the one hand I have argued for no exemption for one set of public services—the Prison Service—but, on the other hand, I now defend the exemption for both statutory and non-statutory services. We all have one common aim in supporting this Bill: to establish a strengthened incentive to all organisations and service providers to improve the culture of safety.
However, the vital issue in this part of the Bill is that the incentive must be applied in different ways depending on the circumstances in which different services operate. In respect of that, the emergency services are the complete opposite of the Prison Service or other services providing lawful custody. We have already debated that the purpose of the Prison Service is to maintain a controlled rehabilitating environment. It has a duty of care for those in its custody based on that purpose and based on the fact that those individuals have been stripped of their liberty. The emergency services are compelled to act in a completely uncontrolled and unpredictable environment, deliberately and knowingly exposing themselves to extreme risks in the interests of protecting and rescuing the public.
I hope that I have made it clear that these amendments seek to achieve internal consistency in the Bill. So far, we have seen that some organisations are being included in the scope of possible prosecution, while others are protected from it. The only consistency so far seems to be the aim of protecting public services providers, but not commercial or private service providers who have exactly the same role. I hope that the Minister will reconsider the position in the way in which I have explained it. I beg to move.
If Amendment No. 59 is agreed to, I cannot call Amendment No. 60 because of pre-emption.
I wonder if I may pose a few questions about the amendments. I may be quite wrong, but my impression was that the noble Lord, Lord Hunt, was moving the first amendment on the basis that Clause 6(2)(d) governed the entire situation. That is not quite how I read the provision. Of course, it is right that it refers to the organisation,
“otherwise than on a commercial basis”.
There may be something to be said for a little more clarification of the meaning there, but I would have thought it was clear that it does not regulate the organisations listed in the paragraphs that follow. Paragraph (f) includes,
“an organisation providing ambulance services in pursuance of arrangements made by, or at the request of, a relevant NHS body”.
That could easily be a commercial operation, if requested or arranged. Paragraph (g) refers to,
“an organisation providing services for the transport of organs … in pursuance of arrangements made by, or at the request of, a relevant NHS body”.
One thinks of the motorbikes which often imperil us on the roads when carrying organs, blood and the like, clearly on a commercial basis. Paragraph (h) refers to,
“an organisation providing a rescue service”.
As I understand it, that is not confined to non-commercial bodies. That is my first point, which the noble Lord might wish to address further once he has heard the Minister’s reply.
The second point relates to Amendment No. 61, and it is surely the real thrust of the amendments. It would add to line 40, which is the phrase “a relevant NHS body”, the words,
“including any organisation providing healthcare services”.
I would have no difficulty with that if it were governed by the same qualification as the paragraphs that I have just referred to; namely, if it was under arrangements made or requests from an NHS body, and perhaps extending even a little more widely to include any informal arrangements made for an NHS district or region. But if it is to include any organisation providing healthcare, which would, as I understand it, include plastic surgery, for which some case could be made, given the extraordinary profit that such centres make, not necessarily very helpfully to the national health service arrangements generally—I mean that in lower case—I would resist it very strongly. I would not include on a par with NHS bodies any organisations that might be purely commercial organisations which are, very questionably, approved of by those who think of healthcare in a particular area or district.
The noble Lord who moved the amendment did not really take on the burden that he carries in regard to Amendment No. 61, which would include a vast range of those who claimed that they were addressing the healthcare needs as seen by the people they treated, but not necessarily within a general programme for areas covered by the National Health Service, which is under such strain.
Any noble Lord in this Committee who has not read the Financial Times today must go and do so immediately in some natural break or other moment of leisure. There noble Lords will read about the Baker report on BP and the surprising early, or pending, resignation of the chief executive, the noble Lord, Lord Browne. He is one of the most highly paid chief executives in Britain, with the biggest pension pot in Britain, and presided over a culture of a failure to provide for a systematic and governing culture of safety for many years in BP’s organisation. The report addresses mainly what happened in Texas, although, as I said in a Committee sitting, its operations in Alaska and elsewhere, and possibly even in Britain—certainly one refinery that is not now owned by BP—come within the same considerations.
I do not say that any healthcare commercial organisation would necessarily run a system of that sort, but I do not really see why as a commercial body it should be on a par other than exactly the same as BP would be under the Bill. However, I reserve my position on whether the Bill would give remedies to the story that is told so clearly and admirably in that great newspaper the Financial Times, which always tells the City and everybody who cares to read it just what is going on.
I am tempted to move that the Grand Committee adjourn for the very purposes the noble Lord, Lord Wedderburn, suggests. However, I will not. The noble Lords, Lord Hunt and Lord Henley, are worried about the fact that the Commons did not scrutinise this particular aspect. Are they worried that we are about to have a unicameral system? One of the merits of bicameralism is that what is not discussed in the first House can be caught up in the second. I recognise those noble Lords’ desire to beat the noble Lords on the government Bench with this fact, but they are being a little unfair.
I would like to ask the noble and learned Lord whether vets are covered in the emergency services. Vets have to attend incidents, particularly road accidents involving deer and people, and no doubt dangerous dogs and all the rest. Does the Bill include vets?
I readily agree with much of what has been said, but will my noble and learned friend comment on the fact that there has been a system whereby some functions of the health service have been allocated to the private sector? I do not altogether agree with what has happened, but it is quite a small percentage of what has been agreed.
I certainly do not go along with the generality of the remarks uncharacteristically made by the noble Lord, Lord Hunt. I think that he has overstated the case enormously, but I would like an answer from my noble and learned friend to the points that I have raised.
The noble Lord, Lord Hunt of Wirral, seeks to overturn an amendment made in another place by the Government to Clause 6 and to put in place an alternative provision. I understand that he wishes to test the thinking behind government amendments in another place and I am happy to explain why we decided to limit the firefighting exemption in the way that we did.
The noble Lord’s amendment would extend the emergency services exemption to all organisations employing firefighters, protecting life and property in the event of a fire, or responding in any other way to emergency circumstances. In the first respect at least, the effect is to take the Bill back to the form it was in when it was first introduced in another place. However, we believe that the exemption there went too far.
In particular, although the courts have recognised that public rescue authorities do not usually owe duties of care in the way that they respond to emergencies, it is not at all clear that the same considerations apply in respect of private companies providing services on a contractual basis. So although the Bill as it now stands follows the way duties of care appear to fall in the common law, the noble Lord’s proposal will go further and remove current liabilities for these organisations. We should have a very good reason for doing that.
At the heart of the distinction that we have drawn in the drafting of Clause 6(2)(d) is the concept of obligation. The statutory fire services do not choose to offer firefighting capacity on a contractual basis and they cannot withdraw their services from the market. By contrast, commercial organisations can choose the terms of the contractual arrangement with the client and on that basis agree the service that they are able to supply. They can also choose to withdraw their services if there is a risk that resources cannot be matched to demand. In most circumstances, commercial organisations, such as a company offering firefighting services to the film industry, can call for back-up from the fire brigade. There is no such back-up for the fire brigade.
The exemption is not directed just at split-second decisions taken at the scene of an emergency; it is clear that the task of fighting a fire presents the same challenges for public and private firefighters. The difference lies further back, in relation to liability for decisions about the management and allocation of resources. A statutory fire authority is under an obligation to provide a fire and rescue service, regardless of the demand upon its services. At one time, there may be a fire at a chemical plant, a multiple pile-up on the motorway and a number of house fires burning simultaneously. The demands on the fire authorities are unpredictable, and extremely difficult prioritisation decisions may need to be made to make best use of finite resources.
It is true that private organisations have to make prioritisation decisions too, but a private organisation has contracted to provide a particular level of service and to have sufficient resources and expertise to meet the expectations of the client. If it fails, grossly negligently, to meet the terms of that contract, we are not persuaded that it would be right to exempt it from liability.
The question therefore boils down to this: is a commercial operator which chooses to provide a firefighting service in the same position as an organisation that is obliged to provide that service? We are not convinced that it is. The same demands as are faced by the public service are not faced by the private corporation. However, I say immediately that the clause does not provide an absolute provision as regards the private sector—as the noble Lord, Lord Wedderburn, observed in his interpretation, which I submit is correct, of Clause 6(2), when he referred to paragraphs (d), (f) and (h).
We amended the exemption so that it extends to commercial organisations only where they are providing firefighting services by arrangement with a fire and rescue authority or the equivalent body in Scotland and Northern Ireland, and so are effectively in the same position as the public services.
In relation to the concern about risk aversion, private organisations are currently liable to prosecution for manslaughter, so in a sense there is no change to that as a result of the new offence. There is no reason for them to become more risk-averse as a result of the new offence.
On Amendment No. 61, on the application of the exemption to NHS bodies, the noble Lord, Lord Hunt of Wirral, is seeking to challenge our thinking on why this exemption does not also extend to all providers of healthcare services. The reason that we have not extended the exemption in the way suggested is that we do not think that private bodies, with the exception of private ambulance services, are providing the sorts of emergency services that would need to be covered by this exemption. In that regard, I respectfully concur with the noble Lord, Lord Clinton-Davis, who identified that only a very small percentage of the emergency services are covered by the private sector.
The purpose of the exemption is to cover NHS ambulance providers in respect of the way in which they respond to emergency circumstances. Their private counterparts are also covered where they have an arrangement with an NHS trust to carry out comparable functions. Where a trust has arranged for another body to carry out an emergency response on its behalf, we do not think that criminal liability should attach to the one body but not the other. The exemption will only apply when the ambulance service is responding to an emergency, and it will not exempt private ambulance services when carrying out routine, planned work.
Apart from ambulances, the exemption will have very limited application to the NHS, as it does not extend to medical treatment. There is little, if any, contracting-out of emergency response that we are aware of by NHS bodies. We therefore do not believe that non-NHS healthcare providers are independently providing the sort of emergency services that would need to be covered by this exemption.
On the technical point raised by the noble Earl, Lord Mar and Kellie, I have to answer his question on the coverage of vets in the negative.
I hope that this explanation will be enough to persuade the noble Lord to withdraw his amendment.
Before the noble and learned Lord sits down, I ask again the question that I raised previously. Would the exemption hold firm where a patient was passed into a mainstream department of a hospital rather than being kept waiting in the A&E waiting room?
As, theoretically, the noble and learned Lord is still in a semi-recumbent posture, I will ask him a rather different question, with the leave of the Committee. I referred to this in my earlier remarks. Many people this morning were asking this question on the telephone. Will the Government make some statement or give some clarification of this, either by the end of this Grand Committee or before Report? I do not ask him to answer this categorically today, but I want to see what would be his attitude to the notion that the Government should clarify what would be the effect of the Bill, if enacted, in regard to rescue matters and all the other matters that would arise if the BP explosion had happened not in Texas but here.
That will be a very difficult statement to draw up, and I would not think of asking the noble and learned Lord for any kind of draft on his feet today; but people will ask that question. I am only putting the Government on notice that they ought to say something about what they think would be improved by the Bill if something like the detailed, 100-page Baker report was made about an incident here after the enactment of the Bill.
Since, I gather, I am no longer recumbent, with great diffidence I submit that I would not wish to make any precise statement on the position of a particular, named company. Looking at the generality of the position, the whole essence of the Bill is to fix the notion of corporate manslaughter where there is gross negligence disclosed on the part of senior management. Obviously, one does not wish to get involved in any particular example that may immediately come to mind. I hope that the noble Lord will accept that the general intention behind the whole point of the Bill is to deal with issues where there is gross negligence that has resulted in a death and that may be stigmatised, or characterised, as corporate manslaughter.
The noble Earl, Lord Mar and Kellie, put his finger on the key to why I raised these points. The noble and learned Lord responded in a very constructive way. These provisions were added in another place on Report in response to points being made in Committee where there was no real opportunity to discuss them. Therefore, we are playing our part in the bicameral system by ensuring that where the other place has not had an opportunity to discuss and hear the Government’s explanation, we should ensure that the explanations go on the record. The noble and learned Lord has explained that the original exemption, in the Government’s view, after debate in Committee, went too far. It has been very helpful to hear the reasoning behind the way in which the Government have now amended the Bill.
The noble Lord, Lord Wedderburn, raised two separate points. I am sure he is right, as indeed the noble and learned Lord has explained, that the phrase,
“otherwise than on a commercial basis”,
does not apply to bodies that then follow in paragraphs (e), (f), (g), (h) and (i), as I understand it. The noble and learned Lord has explained that. The noble Lord, Lord Wedderburn, is right. In fact, I was not going as far as the noble Lord thought I was. I was merely seeking a more adequate explanation of the way in which Clause 6, on emergencies, is now drafted. The noble Lord, Lord Clinton-Davis, probably guessed that that was the case. I wanted to hear why we now have Clause 6 in its current form. I would welcome the opportunity to consider carefully what the noble and learned Lord has just told us. In the mean time, I beg leave to withdrawn the amendment.
Amendment, by leave, withdrawn.
Noble Lords might find it helpful if I point out that they have no need to say, “Before the Minister sits down” in Committee. Whether he is sitting down or is even recumbent is irrelevant; they can ask as many questions as they like of the Minister.
60: Clause 6 , page 5, line 35, after “circumstances” insert “(or circumstances believed to be emergency circumstances)”
The noble Lord said: Amendment No. 60 stands in my name and that of my noble friend. In moving it, I will speak also to Amendments Nos. 65, 67, 68 and 71. These are further amendments that would remove amendments added by the Government on Report in another place. They take out a series of references to how the term “emergency circumstances” could be construed and consolidate them into one subsection. The meaning of the clause in that respect therefore remains unchanged, in that where circumstances were believed to have been emergency circumstances, they will count as such. I am sure that the noble and learned Lord will clarify that, and I should be interested to hear the rationale behind including those words. I look forward to his response. I beg to move.
The amendments in this group once again seek to test the Government’s thinking behind amendments made to the Bill in another place. I welcome the opportunity to explain why those changes were made.
Amendments Nos. 60, 65, 67 and 71 reverse technical changes made to Clause 6 to avoid needless repetition of the same phrase. Multiple references to,
“circumstances that are believed to be emergency circumstances”
were removed from the clause and replaced with subsection (8), which provides that every reference to “emergency circumstances” within the clause includes a reference to,
“circumstances that are believed to be emergency circumstances”.
The amendments would therefore make no substantive change to the Bill.
Amendment No. 68 proposes a limitation on the application of the emergency services exemption to NHS bodies in response to concern expressed in another place about the width of the exemption as initially drafted. In particular, it was felt that the exemption could be interpreted to extend to NHS bodies in a very wide range of circumstances; for example, it could apply to the treatment of any patient in immediate danger, whether at the scene of an accident or on a hospital ward.
That was not the Government’s intention, so we made changes to the clause, which will be debated in detail in relation to later amendments. In brief, we tightened Clause 6 so that the only treatment decisions that can be covered by the exemption are prioritisation decisions taken in an emergency. So, for example, decisions regarding the order in which patients receive medical attention in an emergency would be exempt. Such decisions are a core element of how NHS personnel manage their responses to an emergency, and we do not think that it would be in the public interest for the threat of criminal liability to distort the way such decisions are made. No other treatment decisions would be exempt, however.
The amendment tabled by the noble Lord, Lord Hunt of Wirral, offers a different route to restricting the application of the exemption to the NHS. It does so by providing that medical treatment cannot benefit from the exemption if it is administered within any kind of healthcare facility.
While I see some attractions in this approach, I also think that it potentially leads to some difficult and possibly arbitrary distinctions in terms of what should qualify as a healthcare facility and where the precincts of the healthcare facility would end. For example, is a chiropody service, situated miles away from a casualty department and with no advanced resuscitation equipment, included within the definition of a healthcare facility? Is a hospital car park included?
I am not sure whether it would always be clear to providers of healthcare services where the limits of this exemption would lie. Furthermore, we can envisage situations in which emergency circumstances could occur within the precincts of a healthcare facility where the exemption ought to apply. For example, if there were a viral pandemic, hospital staff may need to prioritise responses to those affected. Such a response should not be within the scope merely because it occurs in a hospital.
It is for this reason that I prefer the Government’s approach. By making it clear that treatment decisions are not exempt except where they are prioritisation decisions taken in order to manage an emergency, we provide clarity for the emergency services and avoid the risk of defensive practices, which uncertainty might encourage. I hope that the noble Lord will withdraw his amendment.
62: Clause 6 , page 5, line 42, at end insert “, or
(ii) made with the Secretary of State or with the Welsh Ministers;”
The noble and learned Lord said: I have already outlined the circumstances in which the exemption provided by Clause 6 is extended to non-NHS providers of ambulance and transport services when responding to emergency circumstances. In brief, where a relevant trust has arranged for another body to carry out an emergency response on its behalf, we do not think that criminal liability should attach to one body but not the other. To allow that might risk reducing the availability of such alternative forms of transport to NHS trusts, which would not ultimately be in the public interest.
The three technical government amendments in the group will ensure that the range of potential commissioners of ambulance and transport services to act in lieu of NHS providers is complete.
Amendment No. 62 adds the Secretary of State and the Welsh Ministers to the range of potential commissioners of these services. Under Section 23(1) of the National Health Service Act 1977, the Secretary of State can arrange with any person or body for them to provide, or assist in providing, any service in that Act. A similar provision is made for Welsh Ministers under Section 10 of the National Health Service (Wales) Act 2006. It would be rare for ambulance or transport services to be commissioned in this way, but if they were, they would be in a position comparable with the services provided or commissioned directly by an NHS body and so should be covered by the same exemption.
Amendment No. 70 corrects the omission of strategic health authorities from the definition of a “relevant NHS body”. These authorities, established under Section 8 of the National Health Service Act 1977, do not provide ambulance services directly, but they have the power to commission ambulance and transport services. They should therefore be treated in the same way as the other relevant NHS bodies. The amendment also restructures the paragraphs so that bodies in England and Wales are treated separately, and makes some alterations to the order in which bodies are listed.
I regret the errors in earlier drafts of Amendments Nos. 62 and 70, which did not list Welsh bodies correctly. In particular, we omitted a reference to Welsh Ministers and included a reference to health authorities in Wales that have now been abolished. I do hope this did not cause noble Lords any confusion. I beg to move.
I start by offering my congratulations to the noble and learned Lord, who is speaking on behalf of the Home Office, on revising the government amendments tabled to correct the references to Welsh Ministers and Welsh health authorities that have been abolished. After all those years of devolution, it is a matter for congratulation that the department should have caught up with those points.
As I understand it, the amendments are consistent with the Bill and seem to make some sense. However, they still give rise to the question whether a complete exemption, applying to the grossest negligence imaginable, is really acceptable. Is it simply that the noble and learned Lord and his officials have spotted yet another loophole in their drafting, and that that is what they are trying to put right?
We have no amendments concerning Scotland and Northern Ireland because the Bill as it stands is correct in relation to those jurisdictions.
With leave, I shall respond to the points raised by the noble Lord, Lord Henley. It is simply a matter of having identified the omission of a reference to the Welsh Ministers and a reference to health authorities in Wales. There is nothing particular beyond that error having been identified, an error which, as I say, is regretted.
On Question, amendment agreed to.
63: Clause 6, page 5, line 44, leave out from “arrangements” to end of line 45 and insert “of the kind mentioned in paragraph (f)”
On Question, amendment agreed to.
64: Clause 6, page 6, line 1, leave out subsections (3) and (4)
The noble Lord said: In moving Amendment No. 64 I shall speak also to Amendment No. 69. Yet again, these are amendments tabled to discover what the Government intended in bringing forward amendments on Report in another place. I understand that those amendments were added after the debate in Committee on the emergency services provisions in the Bill and it is unfortunate that again the Government did not give themselves enough time to explain the considerable redrafting of the clause.
The amendments have, I believe, improved the clause by identifying where exemptions do and do not apply and I am pleased that the Government have taken on board the comments of my honourable friend in another place, the shadow Attorney-General, Mr Dominic Grieve, who pointed out the potential for confusion within hospitals in both accident and emergency departments and treatment departments. All I seek in moving the amendment is to have an assurance from the Minister that there will not now be such confusion. I beg to move.
The amendments in this group seek to undo changes made by the Government to Clause 6 in response to concerns expressed in another place about the potential width of the emergency services exemption. Once again I welcome the opportunity to explain why those changes were made.
During debate in the other place, we were persuaded that there was a risk that the exemption as initially drafted could be interpreted to extend to NHS bodies in a very wide range of circumstances, such as when treating a patient with a life-threatening illness. That is not what we intended. Hospitals can be prosecuted for corporate manslaughter under existing law and we see no reason to remove that liability. We therefore amended Clause 6 so that it places tight restrictions on the sorts of treatment decisions that can be covered by the exemption.
The first limb of Clause 6(3) makes it clear that the emergency services exemption does not extend to medical treatment. So, for example, if a paramedic fatally administered the wrong drug to a patient at the scene of an accident and this error was attributable to gross management failures within the NHS trust in the training of paramedics, that situation would be covered by the offence. In fact, that was always our intention. We did not think that the management of an emergency included fatal errors in treatment, but we were persuaded that there was some doubt about that and that there was a potential loophole which could bring in a wide range of treatment decisions.
The second limb of Clause 6(3) makes clear that decisions about carrying out medical treatment, with the sole exception of prioritisation decisions in an emergency, are also covered by the exemption. That seems to us to have the right effect. One of the key ways in which NHS personnel respond to an emergency is by prioritising their responses to patients according to many factors, including the number of casualties, the nature and degree of each patient’s injury, the likelihood of survival and the number of personnel available on the scene. Those decisions should be exempt, but treatment decisions would not otherwise be covered by the exemption.
We have already debated the noble Lord’s approach to solving this problem. The reason that I think our approach is preferable is that it is much clearer where the limits of the exemption lie. It avoids the need to apply the exemption according to the location of the treatment, which could lead to some arbitrary results, and instead makes it clear that prioritisation decisions made in an emergency should be exempt, but that all other medical treatment decisions should be covered by the offence wherever they take place. I hope that, in the light of that explanation, the noble Lord may be inclined to withdraw his amendment.
70: Clause 6 , page 6, line 26, leave out paragraph (a) and insert—
“( ) a Strategic Health Authority, Primary Care Trust, NHS trust, Special Health Authority or NHS foundation trust in England; ( ) a Local Health Board, NHS trust or Special Health Authority in Wales;”
On Question, amendment agreed to.
[Amendment No. 71 not moved.]
Clause 6, as amended, agreed to.
Clause 7 [Child-protection and probation functions]:
72: Clause 7 , page 6, line 42, leave out subsections (1) and (2) and insert—
“(1) Subsection (2) below shall apply where—
(a) it is established that a local authority or other public authority owed a relevant duty of care to a person, (b) the duty of care does not fall within section 2(1)(a) or (b) and is owed in respect of the exercise by it of functions conferred by or under— (i) the Children Act 1989 (c. 41), (ii) Part 2 of the Children (Scotland) Act 1995 (c. 36), or (iii) the Children (Northern Ireland) Order 1995 (S.I. 1995/775 (N.I. 2)), so far as relating to the protection of children from harm, and (c) it falls to the jury to decide whether there was a gross breach of the duty of care. (2) When determining whether there was a gross breach of the duty of care, the jury must consider any of following factors which are shown to have affected the exercise by the organisation of its functions—
(a) other relevant duties to which the organisation was subject, including statutory duties and duties of care under the law of negligence, (b) resource constraints, and (c) public interest considerations.”
The noble Lord said: In moving Amendment No. 72, I should like to speak also to Amendment No. 76. Amendment No. 72 would remove the blanket exemption for local authorities and other public authorities whose gross negligence in the care of children leads to a child’s death. The intention of the amendment is to replace the exemption with a requirement for a jury to consider the conflicting considerations which an organisation has to consider if it is under resource constraints. The reason that these amendments are so important is because we are addressing real concerns that are felt strongly by the public, based as they are on some distressing events. I feel that we are speaking up for the public here, as we must.
Specifically, the immunity for child protection afforded in Clause 7 covers deaths arising from gross negligence in the performance of functions to protect children from harm. In particular, the case of Victoria Climbié, which was mentioned at Second Reading, illustrates the kind of situation in which a prosecution would be appropriate, but which would be prevented by Clause 7 as drafted. In the year 2000, Victoria Climbié was tortured to death by her great aunt. When Victoria died, she had 128 separate injuries on her body, which included cigarette burns, scars where she had been hit with a bike chain and hammer blows to her toes. She was also forced to sleep in a bin-liner in the bath at the home in Tottenham. Victoria was seen by dozens of social workers, nurses, doctors and police officers before she died, but all failed to spot and stop the abuse as she was slowly tortured to death.
The public inquiry into the case headed by the noble Lord, Lord Laming, concluded that the failings by the agencies involved were a disgrace. As I read the results at the time, one social worker had the blame very much apportioned to her, but five senior managers either kept their jobs, were promoted or went on to other positions. Our amendment acknowledges that those charged with responsibility for the care of children are often faced with very difficult situations, so it is not intended to prosecute individuals who, with the benefit of hindsight, may have reached the wrong conclusion with the result that a child dies. It would, however, make it possible for a jury to convict an organisation where it has been shown that its conduct has fallen far below what could reasonably be expected in the particular context.
Making that determination will require the jury to take account of the specific circumstances, issues and dilemmas faced by the organisation. There are many other examples. We have a grave duty to respond to tremendous public dismay, distress and disbelief that such events as I have described and others could occur in our society. Referring to that particular incident, although there are many others, I beg to move.
I do not intend to say much on the amendment, other than to offer my congratulations to the noble Lord, Lord Cotter, on moving it so well and setting out the arguments for it, especially following the Victoria Climbié case and what happened afterwards in the local authority concerned. At this stage, I do not know what arguments the noble Lord, Lord Bassam, will put forward. I have a sneaking suspicion that at the top of his briefing note—we all remember how they used to be drafted—is the word “resist” to remind him that that is what he must do. I will certainly be fascinated to hear what arguments he put forward in response to the noble Lord and it may be best if we heard from him at this stage.
I am grateful to the noble Lord, Lord Cotter, for his comments, which I am sure were heartfelt. They take us back to the difficult question of when government and public bodies should be accountable in the criminal courts for the way in which they carry out their activities.
Perhaps I should declare a sort of past interest. I trained as a social worker and worked as a social worker for a short while. During my time working for the local authority, we had to deal with cases that were not as appalling as the Climbié case, but we had to make difficult choices and faced dilemmas with which social workers struggle at all times to try to reconcile in order to fulfil their duty of care to those entrusted to the care of the local authority. So I have some appreciation of the difficulties involved in that case and in caring for children in the local authority context.
Clause 7 deals with the exercise of two challenging public functions: child protection and probation. Those functions are clearly different but they are linked in so far as they relate to the protection of the public from harm. The noble Lords, Lord Lee and Lord Razzall, tabled an amendment to which the noble Lord, Lord Cotter, spoke, which seeks to remove the limited exemption given to organisations carrying out those functions and bring them within the offence, subject to a number of considerations. Before turning to that amendment, I would first like to say something about why we think that the exemptions are required.
Clause 7 makes it clear that the exercise of a limited range of statutory functions is not covered by the offence. That does not affect the liability of local authorities or probation boards to provide safe systems of work for their employees; nor does it affect their responsibilities as occupiers of premises. Rather, the exemption is tightly drawn to focus specifically on the arrangements for discharging a limited range of particular public functions.
Let us first consider those relating to child protection. I understand that in another place, the limb of the clause dealing with child protection was considered in some detail. It was suggested by honourable Members in the Opposition that a distinction might be drawn between decisions about taking a child into care, which ought to be exempt, and the provision of services to children, which ought to be covered by the offence.
We thought that there was merit in that suggestion and so tightened the child protection limb of the exemption so that it is now limited to a small number of statutory functions relating to decisions made to safeguard the welfare of children, carried out under Parts 4 and 5 of the Children Act 1989.
Part 4 of the 1989 Act concerns care and supervision orders. Such orders can be made by a court only if it is satisfied that the child concerned is suffering or is likely to suffer significant harm. The court must then place a child under the care or supervision of a local authority. Part 5 concerns, among other things, the powers of public authorities—local authorities and the police—to remove a child from their home in case of emergency.
Clause 7 makes it clear that those functions are not covered by the offence, but there is in fact uncertainty as to whether a duty of care would exist in those situations in the first instance. The courts have had real difficulty deciding the duties of care owed by local authorities in respect of child welfare decisions. They have found that it may well be inappropriate to subject a local authority to a duty of care in respect of decisions relating to taking children into care.
To that extent, Clause 7 merely clarifies that the offence will not apply, rather than providing for a substantive exemption where the offence would otherwise have effect. That reflects the position of a number of the clauses dealing with the public services in that they operate in circumstances where duties of care are frequently not owed and their main function is therefore to provide clarity and draw bright lines around the scope of the offence.
Local authority functions in relation to children are not otherwise exempt from the offence, except where those are matters of public policy or exclusively public functions covered by the general exemption in Clause 3. The effect of that is that where a child is in the care of, or is receiving services from, a local authority, that local authority has a special responsibility to ensure that its services and those providing them do not harm the child or its family. It is not our intention to create barriers to criminal prosecution if serious management failures in the provision of services directly cause a child’s death. It is our view that Clause 7 achieves that. Having listened to the noble Lord, Lord Cotter, I think that that was part of what he was seeking.
I turn to probation. The exemption for the Probation Service covers three areas of activity: the monitoring of compliance with community orders; the supervision of people released from prison on licence; and the provision of accommodation in approved premises. As has been said, the clause extends no exemption to responsibilities owed to employees or in respect of the occupation of premises. It therefore only affects any wider duties owed in respect of those in approved accommodation. In all those areas, the Probation Service is managing very challenging public relationships. The emphasis is on protecting the public and the management of risk. As with the other public services, this involves the difficult balancing of many diverse interests. When the service gets things wrong, there should be a thorough and open investigation and the service should learn from those mistakes. But we think that criminal prosecution is not an appropriate way of achieving that highly proper and laudable objective.
High-profile cases have involved offences, including murder, committed by offenders under the supervision of probation services. By its nature, the Probation Service deals with some very high risk—potentially very dangerous—offenders. The service has a responsibility to protect the public from those offenders, but we do not think that it should itself be criminally liable for their actions. That would place a heavy onus on the Probation Service and potentially distort the very difficult decisions that it must take. The Probation Service is in any case unlikely to owe a duty of care to the victim of an offender’s action. To that extent, as with the child protection exemption, an important part of the provision is to give clarity to the probation services, so that they are in no doubt about where criminal liabilities lie.
I have explained the Government’s thinking behind the exemptions. I turn now to the amendments which seek to remove the exemptions for child protection and probation services. They would make the organisations currently covered by this exemption liable for the offence where they owe a duty of care, subject to a number of considerations such as the existence of other duties, resource constraints and public interest. We discussed a very similar amendment in relation to the emergency services exemption, and the noble and learned Lord, Lord Davidson, explained very clearly the context for preferring the drafting in the Bill, which we think should also apply here.
As we have made clear, it is uncertain whether a duty of care would be owed in child protection decisions in the first instance, so Clause 7 merely clarifies to local authorities the situations in which the offence will not apply. Similar arguments can be applied to exemption for the Probation Service. The amendment would therefore not substantially alter the scope of the offence, but it would remove that necessary clarity. This would create uncertainty about the scope of the offence in areas where this could easily lead to damaging risk-averse practices being adopted. That would not be a happy consequence in this important legislation. We have therefore framed a narrow exemption of specific statutory functions on the basis that this offers the child protection and probation services clarity about where their liabilities should lie. I hope that that explanation satisfies the noble Lord. I am very grateful to him for the way in which he moved his amendment.
I thank the Minister for his response. I also thank the noble Lord, Lord Henley, for his support for the amendment, and congratulate him on his foresight that the Government would resist it. The Minister has spoken to defend the Government’s stance, and his response has included stating that criminal prosecution is not seen to be appropriate. I feel it will be necessary for us to study in detail what he has had to say with a view to returning to this issue on Report. Notwithstanding whatever is said, these issues remain highly important, and I am sure that many others outside this House will feel the same. The terrible events of the Victoria Climbié case and of other cases could occur again. I only express the hope that the fact that we have addressed the child protection issue today will at least continue to alert people to their responsibilities in the future. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 73 not moved.]
74: Clause 7 , page 7, line 1, leave out “Parts 4 and 5 of”
The noble Lord said: I can be fairly brief on Amendments Nos. 74 and 75, which address amendments added by the Government on Report in another place. Perhaps I may I say on behalf of the whole Committee how much we wish to see the noble Baroness, Lady Scotland, returning to her duties as soon as possible. No doubt the noble Lord, Lord Bassam, feels much the same.
The noble Baroness will have to take on other Home Office Bills, and no doubt the great legislative mill in the Home Office will continue to grind them out in a way that we will keep her and the noble Lord, Lord Bassam, fully occupied.
The noble Baroness sent me a very useful letter, which I think was copied to all those who took part at Second Reading. She touched on these matters, stating that the government amendments will provide the exemption only on decisions about whether a child should be taken into the care or supervision of a local authority rather than applying it more widely to the provision of services to children and families.
All I really wish the Minister to confirm is that, as his colleague in another place stated, the amendment brought forward in another place on Report will ensure that certain potential scenarios will not be exempted; for example, where checks had not been carried out on foster parents and it was later discovered that they had committed offences on children in the past and had then killed a child placed in their care by the local authority. Will he confirm that such a gross failure on the part of the local authority could be captured?
I maintain that where there are gross negligence failures in management within a local authority or a public body which result in the death of a child, they should be held responsible through criminal trial. There can be nothing more criminal than the gross neglect of such a child’s needs. However, I acknowledge the difficulties within the childcare system. Therefore, I await the Minister’s response with interest. I beg to move.
We have had some useful detail on exemptions in this area. I shall try to speak as briefly as I can, but I take the point that the noble Lord, Lord Henley, made. He is absolutely right; this is part of a package of amendments that did not perhaps get the discussion that it deserved.
In another place the Government tightened the child protection exemption so that it exempts a small number of statutory functions relating to decisions made to safeguard the welfare of children. Only local authority and police functions carried out under Parts 4 and 5 of the Children Act 1989, and the equivalent orders in Northern Ireland, are now covered by that exemption. I believe that I touched on that earlier. These parts of the Act now cover a narrow range of decisions relating to the welfare of a child and in most circumstances the local authority would not owe a duty of care in respect of such decisions. The purpose of this exemption is to make it clear that such decisions are not within the scope of the offence. To leave that in doubt could encourage local authorities to be over-cautious, with the possibility that they would seek to remove children from their families unnecessarily. We do not think that would be in the interests of children or families. It would also be very much at odds with the Children Act, which places a statutory duty on local authorities to promote the upbringing of children by their families.
But local authority functions in relation to children are not otherwise exempt from the offence except where these are matters of public policy or exclusively public functions covered by the general exemption in Clause 3. So, if a local authority provides services to a child—for example, by providing accommodation or arranging foster care—a serious management failure in the provision of those services which led to and caused the death of a child would be within the scope of the offence. The same would also be true of contracted-out services. If a local authority did not have proper quality assurance systems in place for commissioning others to provide services on its behalf, or did not take action if it knew, or ought to have known, that a child placed, for example, in a privately owned children’s home was at risk of serious harm, again there would be no exemption from potential criminal responsibility.
We think that this exemption strikes the right balance. The task of dealing with children at risk is extraordinarily difficult. Deciding the best interests of a child requires a careful balancing of many factors. We would not want such decisions to be distorted by the fear of investigation or prosecution. So we think it is necessary that a limited range of functions are outside this offence. But where a child is in the care of, or receiving services from, the local authority, that local authority must do everything it can to ensure that its services and those providing them do not cause harm to the child or its family. It is not our purpose to prevent prosecution of serious management failures in the provision of services that directly cause a child’s death. I hope that such circumstances would be extremely rare and not ones that we had to contemplate frequently. It certainly is not the case now. I hope that the noble Lord is satisfied with that explanation, which fleshes out a little more the explanations that were given on the range of exemptions.
As I said, I think there are difficulties here, and certainly following the response of the noble Lord to the earlier amendment moved by the noble Lord, Lord Cotter, and to this amendment, we shall look carefully at those responses because this is something we shall want to return to at the Report stage in a fuller House when others might want to be involved. With that in mind, for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 75 and 76 not moved.]
Clause 7 agreed to.
76A: After Clause 7, insert the following new Clause—
A duty of care owed by a person only in his capacity as a trustee shall not constitute a relevant duty of care.”
The noble Lord said: This amendment reflects a concern I have expressed since our first meeting with the noble Baroness, Lady Scotland, the day before we began our consideration in Grand Committee. I have heard no reference at all to this issue and it continues to concern me greatly. I should declare an interest as the chairman of two trusts, although I do not think that either of them has any impact here.
The Bill is completely silent on the question of the responsibility or obligations of trustees. This may seem to let trustees off the hook, but, having been prompted yesterday, I have to admit that while I am an amateur in the matter of law, I hope that I am a professional in the matter of running companies, having served as chairman of 10 public companies over the past 20 years. In that time I have come to understand that the responsibilities of a director evolve upwards on to the trustees of a charity that owns the corporate entity on which that director serves. If that is the case, then the trustees are caught by that inference for anything which is amiss in the conduct of a corporation on the part of the directors. They share in the responsibility, which could become a buck-passer’s charter for a board if it allows that responsibility to devolve to trustees. That could be seriously detrimental to a number of interests within our community.
Let me give some examples of this. In many cases charitable trusts own what might be called “dangerous assets”. They own mountains or ski slopes, or sailing ships that are used for training of young people. These are areas in which there is a considerable risk that injury or death can occur. But the charities themselves in most cases work through the ownership of a corporate entity, which administers the assets vested in the trust. Those corporate entities have board members who are paid salaries to run the business professionally. The trustees are effectively the shareholders of the ultimate beneficiaries of the trust, working on their behalf to see that the assets are properly administered for them, but they do not directly manage those assets. I can see a situation here where a great injustice will be done to trustees. They are already an endangered species and good ones are very hard to get today. People are unwilling to step forward and offer their services. Trustees could be held accountable for the liabilities of serious damage claims that arise in a way which is unfair in a situation where the corporate entity had maladministered the assets to the point where a death had occurred. If that were to happen, there would be two levels of injustice, one on the trustee himself for being so persecuted, and the second because the corporation would not itself be the party held to account in terms of being fined or liable to pay compensation and so forth.
If this is a correct analysis of the situation, so that the trustees have to accept ultimate responsibility for the corporate directors, we will find that there is a dearth of people who are prepared to serve in the vital role of trustee throughout our leading charities, leading to a great loss of expertise and skills. Trustees are in the main unpaid people, usually with considerable business and commercial experience who are at the end of their careers, and they will not be prepared to put themselves into situations as risky as this.
Accordingly, I ask for these words to be included as a means of clarifying once and for all that trustees will not be held accountable for corporate manslaughter and that the liability will remain where the name of the Bill implies that it should; at the corporate level. I beg to move.
I suspect there is probably quite a short answer to the noble Lord’s point. I am grateful to him for having made it. It takes me back to some long debates on charity law that we had in this very Room last year and the year before during consideration of the Charities Bill. The question of trustees arose then. I am sure the noble Lord has a point about ensuring that we have an ample supply of quality trustees into the future, because those trustees do a very valuable job, and no one should assume that it is easy to find them. I know that from my own experience doing charitable work.
Where a charity works through a company, it is the company, not the trust, that could be prosecuted. As the trust is not a corporate body, it will not be covered by the offence. Neither does the Bill affect the position of individuals. That may have escaped the noble Lord, although I am not saying that it has. This is solely about corporate prosecutions. Individuals will be no more liable than they currently are under the law, so the deterrent that is rightly of concern here should not come into play because the body corporate, not individual trustees, will be caught by the offence. That important distinction may have caused the noble Lord some understandable concern. I hope that that answer, simple as it is, provides some clarity and assists him.
I am grateful for that response. In the spirit of that response, will the Minister consider including some clarifying statement to make that point clear, because the very fact that there is no reference here is causing misunderstanding? I know of one major bank that is issuing instructions to all the trusts that it controls to beware exactly the hazard that I have described. It will be very detrimental.
The noble Lord, Lord James, has made a very interesting point. I am not sure whether we should be too complacent—perhaps complacent is not the word. We should recognise that many people will be responsible, although they have absolutely no commercial interest whatever, and certainly no financial interest, in what they are doing. I declare my interest, as I have done several times, as chairman of Stowe School. I am also a trustee, in some respects, of various trusts. Stowe School is a company limited by guarantee. Neither I nor any of the other governors receive any emoluments, and others in this Room and certainly in this House will be very similarly placed. Indeed, the noble and learned Lord, Lord Lloyd, was a governor—I forget the exact term—of Eton at some time. He and I, as people with important responsibilities, were certainly taking on potential responsibilities towards the limited company or otherwise that organised the school. You do not get paid for it, but you do take responsibility. Yes, the corporation would be found guilty in a corporate manslaughter case, but you would feel very much involved and very ashamed if corporate manslaughter had occurred.
Sometimes one may be a trustee and sometimes one may not. In some respects I was very comforted to hear the noble and learned Lord, Lord Lloyd, say that the trustee would not be responsible. But I should have thought that the trustee might well feel obliged to be careful to see that those who actually managed the operation in question did so in a thoroughly responsible way that did not give rise to corporate manslaughter. I do not want there to be any feeling that somehow because you are a trustee you do not have any responsibilities. As regards the exact legal position of the trustee as opposed to that of the director of the company limited by guarantee, I confess that even to a fairly experienced lawyer such as myself the distinctions seem more theoretical than practical. That is my understanding of the position.
The Government are placing a great deal of responsibility on a great many people who obtain no financial remuneration whatever. I suspect that the provision will apply to trustees of charities which run commercial operations. The Royal Society for the Protection of Birds charity runs the most enormous commercial operation. In so far as it runs that commercial operation, I believe that it could in theory be potentially liable under the Bill for the measure that we are discussing. I do not know whether the Minister can throw further light on the matter. My speech was not very illuminating but serves to say at least, “Don’t think that you are not responsible just because you are not paid”.
There is not a great deal to add. The comments of the noble and learned Lords, Lord Lyell and Lord Lloyd of Berwick, were very helpful. I understand where the noble Lord, Lord James, is coming from. On his point of including a measure in the Bill, it is worth the noble Lord turning his attention to Clause 16, which has the bold heading, “No individual liability”. Clause 16(1) states:
“An individual cannot be guilty of aiding, abetting, counselling or procuring the commission of an offence of corporate manslaughter”.
That appears in the Bill. However, as the noble and learned Lord, Lord Lyell, rightly said, that does not mean that those involved in a position such as that of a trustee do not have an overall responsibility for ensuring that an offence is not committed. Clearly, they have a role to play, but it is ultimately the corporate body which is guilty, not the individuals. Therefore, the scenario that the noble Lord, Lord James, envisages should not apply. We should all play our part to encourage people to continue to come forward and undertake the valuable work that trustees do in charitable organisations and trusts, even those which are profit making, or perhaps especially those which are profit making as they tend to have a rather larger range of activities.
Does the Minister agree with me that this amendment is extremely valuable in one sense, although I agree very largely with the substance of what the noble and learned Lord, Lord Lyell, said? It is extremely useful in the sense that it directs attention to an issue which has been before the Committee before, that a duty of care may arise not only from the law of tort—as I am in the presence of distinguished Scottish lawyers, I should also perhaps say reparation; I hope that is right—but also from other sources. Trustee duties and trustee-like duties—which is the history of directors and various other persons, with which I shall not bore the Committee—arise largely from equity. It is one of the curiosities of our law that although law and equity are now administered together by the judges in the same court at the same time, nevertheless the obligations that flow from an equitable base have never been thoroughly put together with those that derive from the common law.
There is a duty of care owed by a trustee, but personally I do not think that they need be too worried by the Bill as it stands, even if the amendments were moved that would admit aiding and abetting. But of course there are a lot of sources for duties of care apart from the law of tort. If any of those duties were relevant, it would be very curious if they were excluded by the Bill when someone is operating in a normal commercial way and owes duties from a number of historical sources. It is a historical oddity to regard the law of negligence in a layman’s sense as derived only from the English common law or even the Scottish common law of tort or reparation.
I have no doubt that the noble Lord will want to think about that. It is of great value that this amendment sends our minds to that general issue in the Bill, which I am sure we will want to look at again on Report.
I am grateful to the noble Lord, Lord Wedderburn, for his helpful comments. Will the Minister look briefly at what I regard as the most extraordinary wording in all these papers, which is in the allegedly helpful Explanatory Notes? Paragraph 54 on page 14 refers to Clause 16, which is headed, “No individual liability”? Paragraph 54 seems to set out to confirm that there is no individual liability, yet arrives in mid stream with a statement to the effect that anybody aiding and abetting may be guilty, and that:
“This is known as secondary liability”.
That is a formula for complete confusion.
I am not keen to extend this debate much further because I am not sure that there is a great deal of merit in doing that. It is worth devoting time and attention to the comments of the noble Lord, Lord Wedderburn. I shall study what he said with interest. I am sure that he is about right.
On the point made by the noble Lord, Lord James, on the Explanatory Notes, I believe that they are clear in most regards. Paragraph 54 is descriptive, but it further states:
“Clause 16 expressly excludes secondary liability for the new offence”.
The paragraph makes that provision clear. Therefore, I am not sure that the noble Lord’s observation is correct. However, the paragraph comprises a description of the Bill as it arrived from another place. It is designed to be as helpful as possible. It does not go into absolute and finite detail but, as I read it, it is fairly clear. Others may be confused, but I am not.
78: Clause 8 , page 7, line 30, leave out “attitudes,”
The noble Lord said: In moving Amendment No. 78 I wish to speak also to Amendment No. 78A, which stands in the name of my noble friend Lord James of Blackheath.
Amendment No. 78 would delete the word “attitudes” from the factors that the jury must cover when considering evidence in a case. It is a simple drafting amendment but it seeks to tease out a potentially deeper problem.
Currently, the jury must,
“consider the extent to which the evidence”—
in a corporate manslaughter case—
“shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged”,
a gross failure to carry out a duty of care. First, “attitudes” does not give a jury any more to look at than is already covered in the other factors listed. I go further and say that there are circumstances where that word possibly could be pernicious. Corporate manslaughter cases are obviously going to be highly emotional and can involve a huge loss of life, so there is a real need for the jury to be objective in its judgment of a case. While attitudes may have been the reason for bad policies and systems, and even more so for not meeting what is considered in a company to be accepted practice—the acceptance of which denotes its attitude—the consideration of attitudes as a first principle is not sufficiently objective.
My noble friend will speak to his Amendment No. 78A in due course, which adds “motives”, and I look forward to hearing his rationale. To me it seems to go against the grain of our amendment and I do not think I will be able to support him. I hope the Minister will consider the points made on Amendment No. 78 and I look forward to hearing his response. I beg to move.
I apologise for two out of three. I have been critical of the guidelines for juries since we first came to this debate on the grounds that they breach one of the cardinal principles laid down by the great historian Burckhardt, that it is necessary for anyone in possession of the facts to understand them only in the context of the spirit of the circumstances in which they took place. I do not believe that the definitions of guidelines to be offered to juries will do anything to recreate the special circumstances that will have dictated what led to the criminal offence being alleged at the time of the jury’s consideration.
I have already commented that there are some potentially quite sinister motives that could significantly colour a jury’s attitude to the question of guilt. I have mentioned particularly the avoidance of liability under a liquidated damages clause and the need to keep a company solvent by avoiding a penalty payment. To me that would seem to be a very significant fact. I do not think it is an issue of attitude, but a completely financially-motivated objective. Further, we should not even think that this is an issue which is divorced from the interests of individual directors. If you know that your company is going to go bankrupt if you meet a liability, you will lose your salary, your expectation of bonuses and whatever you might have invested in the company. You could have a very strong personal incentive for effectively commissioning an illegal act here. Motive is inseparable from an assessment of guilt in this case, and I propose the inclusion of “motive”. I do not think it conflicts with the elimination of “attitude”.
I ask the Minister to think very carefully about the word “attitude”. My noble friend Lord Henley has a point when he says that it might be more prejudicial than probative, which is something that courts are extremely careful to consider. I ask the Minister to reflect very carefully on this. I am rather cautious about the addition of the word “motive”. Again, I will be interested to hear what the Minister thinks on reflection.
Despite what the noble Lord, Lord James, says, Clause 8 is designed to assist jurors in assessing whether a breach was gross. Under the current law of gross negligence manslaughter, juries are asked whether, having regard to the risk of death involved, the defendant’s conduct was so bad in all the circumstances that it should be characterised as gross negligence and therefore as a crime. This test has attracted some criticism as having a degree of circularity and not giving much assistance to juries in determining whether a breach should be considered as gross. With an offence based on a failure to take proper care for the safety of another person, it will always be difficult to describe exactly how such a failure will be manifest. However, we think that we can provide some further clarity on the test. This will help jurors and, in fairness, give potential defendants guidance on what it is that they must do to avoid liability.
Clauses 8(1) and (2) require jurors to consider whether there were any failures to comply with health and safety legislation related to the breach and, if so, how serious they were and how much of a risk of death they posed. This will explicitly put the alleged breach in the context of the organisation’s obligations under health and safety legislation. So any health and safety failures related to how the activity in question was managed would be relevant, including, for example, high-level failures to assess risks, as required under the Management of Health and Safety at Work Regulations 1999, and specific requirements for carrying out the activity, such as wearing appropriate protective clothing. Jurors will consider how much of a risk of death the failures posed. Therefore, it will not be an abstract question of whether the organisation should have been doing something, but, in the circumstances, how much of a risk of death was posed by that failure.
Clause 8(3), with which Amendments Nos. 78 and 78A deal, points jurors to whether the organisation had a corporate culture that encouraged or led to the tolerance of the health and safety breach. In adding this concept, I confess that we have borrowed largely from the Australian concept of corporate culture and are following the recommendation of the pre-legislative scrutiny committee. We believe that by directing juries to consider whether the evidence shows a corporate culture existed that encouraged or tolerated health and safety failures, juries will be aided in judging whether the breach was truly corporate. The provision will also reassure organisations that promote good health and safety practices, but will act as a warning to organisations that have paper systems in place but which in practice disregard them.
I recognise that Amendment No. 78, tabled by the noble Lords, Lord Hunt and Lord Henley, is intended to address the concern that organisations cannot control the attitude of every member of staff. However, I offer the reassurance that the attitude of individual members of staff would be considered in the overall context of the organisation’s approach to health and safety. The concept is intended to emphasise the corporate nature of the offending, rather than the reverse. The concept of attitudes in the organisation is relevant to the question whether there was a corporate culture that allowed the gross breach to occur. It is the responsibility of organisations to ensure that staff know that safety is important and carry out their duties with that very much in mind.
A pertinent example comes from the remarks of the chair of the US Chemical Safety Board in connection with the explosion in the BP oil refinery. This week on Radio 4, she said that in the company there had been a,
“mentality of not repairing things ... and cost-cutting that had been indicated as a cause for much of their safety problems”.
Similarly, on the sinking of the “Herald of Free Enterprise”, Lord Justice Sheen said in his report that the organisation was,
“infected with the disease of sloppiness”.
It is important that juries take that sort of attitude into account when considering whether the breach of the duty of care by the organisation had been gross.
The noble Lord, Lord James, suggested that it was desirable to make motive another consideration for the jury. We would be concerned that the jury might over-emphasise the need to find one. We are not convinced that a motive, for example, to save money is relevant to whether there had been a breach of a duty of care. An organisation may, through utter disregard, fail to consider what actions need to be taken for an activity to be carried out safely. Interestingly, in the draft Bill we included a profit motive in the list of factors for juries to consider. This was heavily criticised by the pre-legislative scrutiny committee. At that point, the Government were persuaded that the Bill should not refer to motives. One of the key reasons was that the public sector would rarely be motivated by profits. Conversely, it could be said that commercial organisations are only motivated by profit. I therefore come down very much on the side of the noble Lord, Lord Henley, and the noble and learned Lord, Lord Lyell, on the subject of motive. Their summation is probably right. I certainly understand the debate, and, as I said at an earlier stage, this was, in a slightly different form, given careful consideration. I hope that I have reassured the noble Lord, Lord Henley, and I trust that I have answered the point made by the noble Lord, Lord James.
I thank the noble Lord for that response. I am not sure that we can take the matter much further. He took us very carefully through most of Clause 8, although he did not underline the fact that subsection (4) states:
“This section does not prevent the jury from having regard to any other matters they consider relevant”.
I suspect that whether we put in or take out “attitudes” and whether we leave in or take out “motives” makes very little difference. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 78A not moved.]
79: Clause 8 , page 7, line 34, at end insert—
“( ) have regard to whether the organisation had appointed one of its directors as a dedicated health and safety director.”
The noble Lord said: In view of the comments made by the noble Lord, Lord Wedderburn, on the Financial Times, I have to declare an interest as one who writes a monthly column for that very fine paper and has done so for the past six years. As I hope to continue to do so, I could be at serious risk if I did not come out in support of the paper. So I put that on the record.
Clause 8 relates to the factors for the jury to consider when deliberating whether there has been a gross breach. Through the Bill, we hope to make a contribution to changing the attitude to health and safety in the body corporate. No one can be happy with the statistics for 2005-06, in which 212 workers and 384 members of the public were killed following a workplace incident. Our contention in the amendment is that the need to designate one director to be responsible for health and safety issues would help to focus the board of directors and senior management on health and safety.
No one is suggesting that this individual could or should be held solely responsible for health and safety. Clearly, that would be unreasonable and unfair. Much could depend, say, on the backing of the board and chief executive, and on the necessary resources being made available to the named individual. However, the designation of such an individual might well be viewed in a positive and favourable light by the jury, as well as having an obvious practical benefit. I am very pleased that the Association of Personal Injury Lawyers supports the designation of a named individual. I beg to move.
This is an eminently sensible amendment. I have no hesitation in supporting it. It would require a jury to take into account whether an organisation charged with corporate manslaughter had taken its health and safety responsibilities sufficiently seriously to have appointed someone at board level to oversee them directly.
The Bill is as much about prevention as about cure, so this kind of amendment could well be beneficial. I therefore support the words of the noble Lord, Lord Lee.
We have already had some general discussion about how we see this clause working. Subsection (3) reinforces the fact that the breach was organisational. Amendments Nos. 79 and 79A both deal with what juries should consider in assessing the corporate nature of the offending. Both in essence—
The Minister probably thought he had had enough of me for one afternoon. Amendment No. 79A is a reflection of my continuing concern on two counts arising from the debate over the past three sittings. First, I remain concerned that we still have not clearly, to my satisfaction, pinned down the right level of responsibility that should apply in a considerably wide range of cases. That remains a big issue for me. Secondly, I am concerned that there is a lack of clarity in the Bill about whether there is mitigation as a result of the incompetence of a lower-level employee who has caused injury to himself or to others by failing to follow laid-down rules.
I suggested this wording as a means of clarifying once and for all, either way, whether that mitigation is a viable argument on challenge. The example I gave several days ago of death on a race course arising from allowing a fence to be jumped when it involved riding straight into a setting sun would involve the groundsmen, the clerk, the chief executive and the chairman of the course, and, beyond them, the British Horseracing Authority. There is no clarity in any of our discussions about which level would be held accountable in that case for a death that has occurred. I seek only clarity here. I am not nailing my colours to the mast and stating that it is or is not mitigation; I merely seek clarity on how the Act would apply in operational terms.
I shall try to provide some clarity. I will not repeat what I started to say. In essence, we are asking a jury to think about the role that senior management have played in the breach. I think that picks up on the point made by the noble Lord, Lord James, but we shall see. To some extent, Amendment No. 79 could be seen as helpful. It is certainly the Government’s view that health and safety should be managed from the boardroom down, and the Health and Safety Commission recommends that boards appoint one of their number to be the health and safety director. Whether or not an organisation has appointed a health and safety director could be indicative of the organisation’s overall approach to health and safety matters.
However, there are two reasons why we should be reluctant to amend the Bill in this way. First, Clause 8(4) makes it explicit that jurors may have regard to any other factors that they consider relevant, which is a point that the noble Lord, Lord Henley, alerted us to earlier. This is important, as it would not be possible to list all the factors that might be relevant to a gross breach of a duty of care. Of course, it follows the current law where jurors consider all the circumstances of the breach. So whether or not the organisation had appointed a director responsible for health and safety could form part of the jury’s consideration, because it could be indicative, without the need to have this in the Bill.
Secondly, and perhaps more importantly, there is a risk that if an organisation had appointed a director for health and safety but that this was essentially lip service to health and safety, a defendant could point to that very fact and discourage jurors from finding a gross breach. The defence could probably argue, “Well, look, we appointed our director. It is their responsibility. It tells you that the culture in the organisation is right, so we do not think that it would be right for us to be convicted”. It would be unwise to run that risk, and I invite the noble Lord to think about that very carefully.
The amendment spoken to by the noble Lord, Lord James, would point juries to consider the extent to which junior employees were acting negligently or outside the instructions of senior management. Juries will already be able to consider that, but this amendment would further reassure organisations that corporate manslaughter charges would not be based on the failures of individuals who were relatively junior in the organisation. Although we agree that organisations should not be found guilty in such circumstances, we believe that subsection (3) already makes this sufficiently clear, in particular when considered alongside Clause 1.
Noble Lords will recall that Clause 1 ensures that senior management must have played a substantial role in the gross breach in the duty of care. The noble Lord, Lord James, may tell me that that does not provide him with sufficient clarity, and we may have to try again. I hope that the explanation that I have provided, and the Bill, do not prevent jurors taking into account the additional factors raised by the noble Lords, Lord Lee and Lord James, in seeking clarity. There are real dangers in these amendments and I have made those fairly clear. I invite the noble Lord to withdraw his amendment.
Does the Minster agree that the greatest enemy to the effective operation of this Bill would be inconsistency in the treatment of cases, which would be taken to have created different levels of mitigation or responsibility for boards? There must be a clear line that consistently guides the challenge to one level. I am seeking a better clarification of where that level is.
I would ask the Minister to go on reflecting on this. I note his comment that the health and safety guidance suggests that you do appoint a director, and it might be worthwhile to highlight that in the Bill. The real question about the amendment proposed by my noble friend Lord James is probably whether the senior management had done their best to ensure that the lower echelons of the organisation had taken the trouble to avoid the kind of mistake which had taken place. If the mistake has taken place at a lower level, as it often will have done, as shown in some of the railway cases, the question arises whether, first, the senior management had arranged a proper system and, secondly, whether they had monitored it.
The Minister’s answer is very helpful, but I am going to tease it for one moment, because part of his argument might have gone so far as to simply say, “The jury shall have regard to all the circumstances”, and that would have been sufficient. When you start talking about considering a number of circumstances, it is worth considering the balance of the matter. The amendment bears further reflection.
Of course the amendments bear further reflection; they always do. We try to make sure that is the case. The best I can say to the noble Lord, Lord James, is this. We must bear in mind that each case will have to be judged on its individual merits. You cannot always compare one case with another, though clearly there can be common themes across cases. I suppose it will be important, although the noble Lord has not said it in these terms, that there is guidance in relation to this. He is right that we must make sure that guidance is really clear so that there is a good, common understanding of how the law will work. I am grateful to the noble and learned Lord, Lord Lyell, for his tease because he is right. One has to take all the circumstances into account, and we have provided for that in framing the legislation. I am grateful for his further observations.
Does the Minister agree that if the message from this Bill were to be that every organisation must appoint one of its directors or senior personnel as a dedicated health and safety director, and every organisation in fact were to follow that lead, it really would be a tremendous achievement? I do not know whether the Government have some other plan for making sure that this advice is followed. It is sadly the case that not many organisations have appointed one of their directors as a dedicated health and safety director. I agree with the noble Lord, Lord Lee, that if that were to happen, it would send a very clear signal. Can the Minister not acquire a better form of Morse or semaphore and send out the very clear signal that the whole Committee would like him to send?
That is a nice invitation from the noble Lord. I go back to the point that I made earlier, that there is a danger in singling out just one element of guidance, which in a sense this amendment invites us to do. It asks that every organisation should have a director who is responsible for health and safety. That is fine as it stands, but as I pointed out earlier it runs the risk of producing a tick-box mentality where people say, “Yes, we’ve got one of those. Problem solved. We can forget about it”. There is a downside, and I invite noble Lords to think about that risk.
I understand that some further reflection is being undertaken about the guidance relating to health and safety issues, so in that context it may well be an issue which requires further thought in any event, although we are talking about issues of negligence here. However, it is an important point, and I have registered it. I do not think it is appropriate to put it in the Bill in the way suggested for the reasons that I have set out, but that is not to say that the issue is not important. Obviously it is important, and we want to encourage organisations to adopt a robust approach to health and safety issues so that the instances where an organisation has to be tried for corporate manslaughter are greatly reduced. If that is the case, the legislation will have been successful, and people will recognise that.
Before the noble Lord who moved the amendment winds up the debate, I ask the Minister whether, in referring to a director, he means a main board director if it is a listed company, particularly given that many boards are moving towards having fewer executive directors on the main board. Secondly, does the Minister really mean a “dedicated” health and safety director, or does he mean a nominated health and safety director? The word “dedicated” suggests to me that that would be a director’s sole task. It might be unrealistic to expect many large plcs to have a director serving on the main board who deals with nothing but health and safety. These are merely questions for clarification.
The noble Viscount makes a very fair point. I accept that “dedicated” is probably not the correct term, and I would prefer “nominated”. So far as whether it should be a main board director, I think it should certainly be a senior director, whether on the main board or a director of a subsidiary just below the main board; one could debate that. However, a nominated senior director would be advantageous.
I am grateful for the support of the noble Lord, Lord Hunt, and that of the noble and learned Lord, Lord Lyell. I suspect that we are now coming to the end of our third day of the Committee stage, during which we have had a friendly and constructive debate, so I do not want to choose too heavy a word to describe the Minister’s response to my amendment. Perhaps I should just say that I thought his reply was somewhat thin. I cannot see how it is disadvantageous to the change in culture and climate that we are all about in this Bill to seek to nominate an individual. If I may draw an analogy, the argument that the Government seem to be putting forward is that once a company has appointed a finance director, then no other member of the board or senior individual within the firm or corporate body needs to take any particular interest in its financial affairs because they would all be managed by that particular individual. His arguments are therefore somewhat on the thin side. However, I am sure that we will return to this issue on Report. In the circumstances, I shall withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 79A not moved.]
Clause 8 agreed to.