House of Lords
Monday, 5 February 2007.
The House met at half-past two: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.
Health: Hepatitis B
My Lords, we have one of the lowest prevalence rates of hepatitis B infection worldwide. Therefore, screening of the general population is not justified. Blood, tissue, organ and gamete donors are screened for hepatitis B. Screening is also offered to all pregnant women, so that babies of infected women can be protected. Hepatitis B testing is also offered to individuals at increased risk of infection.
My Lords, I thank the Minister for that Answer. What criteria are used to determine which screening tests should be introduced and whether they are matched by results—whether they prove to be successful? Is he concerned about the report in the paper that young women no longer want to face cervical smears? Is that a fact or is it just a scare story?
My Lords, clearly, there will be a number of criteria and considerations but it is essential that screening is proportionate and that there is deemed to be benefit by introducing screening and testing. An independent committee provides continuous advice to the Government. On cervical screening, we clearly share the concerns expressed about why there is a fall in the number of young women taking up an invitation to be screened. I understand that the NHS cancer screening programme is currently exploring the reasons why women do not intend to do so. That will be fed into the advisory committee on cervical screening. We are as concerned as the noble Baroness about that.
My Lords, I hope that the NHS is not being wasteful. We are doing everything we can to improve its overall performance. I think that the noble Lord is referring to prostate cancer screening, which I know is of great interest. The Government's position on that is that we are committed to introducing a national screening programme for prostate cancer if and when screening and treatment techniques are sufficiently well developed. My understanding is that at present there is no evidence anywhere in the world that screening for prostate cancer would reduce mortality. At the end of the day, that must be the key consideration.
My Lords, what are the Government thinking of doing about hepatitis C as well as hepatitis B, given that its prevalence is expected to double in the next 10 years and given that the UK is the only country in the world with an upward trend in liver diseases at the moment?
My Lords, hepatitis C is of course a matter of concern. I understand that, based on an estimated general population prevalence, about 200,000 patients have a chronic infection in England. We keep the matter under review; we have expert advisory committees; we will be advised by them. We are certainly not complacent.
My Lords, many of these matters are the subject of discussion with the devolved Administrations but, in this case, the Government are advised by the National Screening Committee. The clear advice at the moment is that there is simply no evidence that would warrant the development of the kind of national screening programme that some people argue for. That will continue to be the position. We will continue to be advised by the expert committees.
My Lords, the position on newborn babies is this: we are working with local primary care trusts to ensure that all women receiving antenatal care are offered antenatal screening for hepatitis B. In particular, this is for infected mothers. We do not think that a national screening test for all mothers is justified. It should be focused particularly on infected mothers. The programmes that have been instituted seem to be successful. We cannot be complacent, but the figures from September 2006 in relation to infected mothers show that coverage of three doses of vaccine in children aged one has reached 75 per cent. We are not complacent. Some PCTs with infected mothers have reached 95 per cent. That is encouraging, but clearly we can do more.
My Lords, may I ask the Minister whether you get the evidence that is required unless you have done an experiment on an infected person which shows a blank? Then, perhaps, it is a lack of evidence. Is that what has happened and is that what he is referring to? It is difficult to understand.
My Lords, I am not entirely sure that I follow that, either. I am in danger of treading in deep waters. The Government have to be advised by the evidence that is available about whether a particular screening test would be clinically effective and cost effective. Where it is shown to be both and we have received the advice from the relevant independent body, the Government will consider introducing screening. That has happened in a number of programme areas but, as I have already indicated, when it comes to prostate cancer, the evidence simply is not there to support a national screening programme.
Waste Management: Recycling
My Lords, in 2005-06, an estimated 6.8 million tonnes of household waste collected by local authorities in England was recycled. The small proportion of this waste that did not meet the standard for recycling was sent for energy recovery or landfill, depending on the availability and cost of local facilities. Waste is a devolved issue, so figures for the whole of the UK are not available.
My Lords, I am most grateful to the Minister for that helpful reply. Is he aware of the reports that 2.2 million tonnes of recyclable materials were exported from the UK to the Far East and China in the past 12 months and that a large proportion of those materials ended up not recycled but in unregulated landfill sites? Can he comment on the truth of those reports, and what action do Her Majesty’s Government intend to take to prevent such exports?
My Lords, the answer is not that different from the one that I gave a fortnight ago. It is illegal to export waste outside the UK other than for recycling and recovery. You cannot export waste from the UK or from the EU for landfill. It is as simple as that. It is illegal. It is up to the authorities and organisations concerned to police this. The Environment Agency polices the system and I understand that some prosecutions are pending. Regarding the reference by the noble Earl to 2.2 million tonnes, I do not have a figure on that. Essentially, we now have a good record on waste recovery in this country and are doing more recycling than ever before, but sending material abroad for landfill is illegal.
My Lords, are the Government aware of how important it is to recycle aluminium cans because aluminium can be recycled infinitely? It is a more economical process than bauxite mining. Therefore, I hope that the Government are putting great emphasis on the importance of collecting and recycling aluminium.
My Lords, depositories for recycling aluminium cans have appeared around this building in the past couple of years. There is more recycling than there has been previously. The noble Baroness is quite right to say that aluminium can be recycled infinitely—although we will never know whether that is the case because we will not be around. The energy saving is massive when compared with the amount of energy used in converting bauxite into aluminium.
My Lords, many millions of people in this country are now setting aside and separating waste for recycling. Would not the worst possible thing be if scare stories that a lot of this material was not being recycled for whatever reason gained credence? Therefore, would it not be a very good idea if each local authority that collects waste for recycling issued from time to time a clear statement to the residents in their area as to where the waste goes and what it is used for?
My Lords, that is an excellent suggestion, which local authorities concerned with best practice would be well advised to adopt. They should not only tell their residents but do what a local recycling area that I have used is doing. Wingmoor Farm at Bishop’s Cleeve is a household civic amenity award winner and recycles more than 60 per cent of what arrives at the site. On each bin or container the public are told what will happen to what they put in the bin. Giving people such information allows them to make a connection between what they are doing and the end product. It is a very useful suggestion.
My Lords, given the almost universal perception that the quantity of packaging of goods sold in many areas has grown over the past few years, can the Minister assure us that enough of it is recycled? Is he happy with the results so far? Can more be done to ensure the availability of products with less packaging, which is very difficult to get into, particularly for older people?
My Lords, it is not always older people who have trouble getting into packaging. The noble Baroness is quite right; massive programmes are under way with industry to cut the amount of packaging waste, both on food and other products. We are recovering more industrial waste than ever before. The waste recycling action programme, which is partly funded by my department, works with industry to cut down the amount of packaging waste and to recycle waste better.
My Lords, on the subject of packaging, could the officials responsible for sending out the Official Report ensure that it is not contained in a material that must be separated from the report and placed in a separate container because it is not paper? Surely, in this place, we ought to be giving a lead regarding the sensible use of coverings that can be recycled.
My Lords, has the Minister seen some of the documentaries about what is happening to our waste in China? Rivers and land are being polluted and people’s health is being affected. Have Her Majesty's Government done anything to ask the Chinese Government to protect their population, including very young children, who scavenge from our waste?
My Lords, I have not seen any of the programmes, although I have read notes about them. People from the Environment Agency and from some local authorities have been to China. The Chinese Government are as concerned about these deficiencies in the system as we are, because it concerns the health of their own people. It is illegal to export waste for landfill and work is ongoing with the Chinese authorities and the Environment Agency. As I said, some prosecutions are pending on this.
My Lords, this country used at one time to recycle 98 per cent of its vehicle batteries, which was one of the best records in Europe. Regrettably that situation has considerably deteriorated, with hundreds of thousands of batteries going to landfill or, too often, fly-tipped. At the same time, nothing visible is happening to ensure that the smaller but very convenient batteries used around our houses are recycled. Do the Government have a satisfactory explanation for that?
My Lords, the footnote in question, relating to planning policy guidance 3, was an example of a large site where it would not necessarily be appropriate to build to the edge of the boundary, but it was not an indication that airfields were exempt from development. Planning policy statement 3 continues the same approach and makes it clear that there is no presumption that previously developed land is necessarily suitable for housing development or that the whole of the curtilage should be developed.
My Lords, I thank the Minister for her less than interesting Answer, which rather dodges the whole question. If the footnote was good enough for PPG3, why is it not good enough for PPS3? Is it the Government’s intention to make the greenfield areas of airfields and hospitals more vulnerable to development by housing?
No, my Lords. As an ex-historian, I would never dispute the value of footnotes, but I assure the noble Lord that PPS3 strengthens the case. In PPS3 we are saying that PPG3 did not exempt airfields from development, although I can see that this was perhaps a misunderstanding made by people whom the noble Lord represents. We are making a new addition to the text. There is no presumption that previously developed land is necessarily suitable for housing development or that the curtilage should be developed. That protects airfields in exactly the same way as it protects other sites. It is important that we have suitable and sustainable development, which applies as much to abandoned or derelict airfields as to any other site.
My Lords, does my noble friend agree with the recent report from the Town and Country Planning Association that the best way to protect the countryside and support much needed new housing growth in many parts of the country is to continue to promote new settlements—I declare an interest as chair of English Partnerships—but to promote new settlements on previously developed land and brownfield land, and by much better use of surplus government land?
My Lords, I am very happy for the noble Lord to answer the question.
I welcome the participation of my noble friend in this House because of her extremely important experience in English Partnerships. The TCPA report is a very timely addition to the debate on how to put brownfield land to the best possible use. In our new planning policy statement on housing, we make it absolutely clear that we prioritise brownfield land. But that does not involve brownfield land at any cost; it involves brownfield land that is planned and prioritised in a way that has evaded us today because it will determine the difference between derelict land, vacant land or whatever. Therefore, we will have a planning and housing policy which is much more appropriate to the needs of the populations in our country.
My Lords, there is some confusion here, and I hope that either the noble Baroness could put it straight or that the Government will make an announcement. We all support the development of brownfield sites—there is no problem with that—but there is a fear that greenfield civil aviation sites might be developed, which is not what they want; they want to keep their sites. The policy that has been announced merely designates the aim of having more brownfield sites than there are now. The fear in the aviation industry is that these sites might end up being developed; they are often in rural areas and are not very suitable for development. The Government need to clarify that they do not really want to build on these sites, apart from the building that is required for use as runways.
My Lords, I am sure the noble Lord knows the CAA Strategic Review of General Aviation inside out and he will recognise that within it is a clear statement that while our planning system does not act as a disincentive or barrier to development, it does not encourage it either. His comments force me to say that airfields or former airfields are treated like any other site; there is no presumption of development. In fact, the statistics show that we have 142 airfields in the general aviation category, which is about the same number as that which we have had for some time. I can find no evidence of loss of airfields or case law to indicate that they are being prejudicially developed. The point is that airfields are likely to be considered as previously developed land if there is a permanent structure on the land associated with use or, for example, hardstanding in the form of runways. Every site has to be judged on its merits, as would be done with every other site.
My Lords, I have no evidence that any more building is taking place on city gardens than there ever has been. Local authorities have exactly the same powers as they have always had to resist such development. Some local authorities—I shall cite just four: Reigate and Banstead, Wyre Forest, Brentwood and Wolverhampton—have made specific reference in their local development plans to the need to protect back gardens. Planning policy statement 3 states the necessity for new buildings to reflect people’s needs for gardens, play spaces and family homes. We are making a much stronger statement about design and the need for open and green spaces than we were able to do before.
Children Act 2004
My Lords, the Government are committed to reviewing the practical consequences of the changes introduced by Section 58 of the Children Act 2004 and to seek parents’ views. This will take place during the year ahead.
My Lords, I thank the Minister for his reply, but I hope that the Government will stop making excuses. Is he aware that the view of the UN committee responsible for monitoring the implementation of the UN Convention on the Rights of the Child, a view which has been published since the 2004 Act, is that all corporal punishment of children within the family should be abolished? Therefore Section 58 is both unclear and unhelpful. Can he give us an assurance that this authoritative advice, along with that of the Joint Committee on Human Rights on the human rights aspect of this issue, will be taken into account during the consideration of the review?
My Lords, I can give an assurance that we will take account of all the elements set out by the noble Baroness. However, I should point out that this is not a question of excuses on the part of the Government. We are carrying out the will of Parliament as set out in the Children Act 2004. As the noble Baroness knows, Section 58 of that Act began as an amendment to the Bill moved by her noble friend Lord Lester of Herne Hill, and was agreed by this House on a free vote of 226 to 91. So there is no question of excuses, the Government are carrying out the will of Parliament in this regard.
My Lords, this is a sensitive issue, but there is a world of difference between the perpetrators of violence against children and the vast majority of parents who struggle to do what is right for their children, often in difficult and challenging circumstances. Does the Minister not agree that the criminalisation of smacking would take up a great deal of time and resources that could be put to better use in protecting children who are in real danger?
My Lords, I simply note that when the Children Act 2004 was passing through this House, it was the noble Baroness, Lady Walmsley, who said:
“It is important to make it clear that the public interest will not be served by prosecuting caring parents for an occasional quick smack”.—[Official Report, 30/3/04; col. 1222.]
The noble Lord, Lord Lester, in moving what is now Section 58 of that Act, said:
“The question for the House is not whether parental smacking is undesirable, just as the use of violent language, screaming and swearing at a child are undesirable and a failure of parental authority, but whether all parental smacking should constitute a criminal offence, even where it does not cause physical or mental harm”.—[Official Report, 5/5/04; col. 525.]
That issue remains the same, and I note the noble Baroness’s views on it.
My Lords, does my noble friend not agree that, in this highly emotionally charged area of family and social life, clarity of what the law is and intends should be absolutely paramount, and that among many of those carrying responsibility for the implementation of policy, and indeed the implementation of law, there is at present an anxiety that, for ordinary people in ordinary family situations, the law is anything but clear-cut?
Again, my Lords, I simply rest on the will of Parliament, which enacted Section 58. In moving that provision, the noble Lord, Lord Lester, who shares many of the views of my noble friends on these issues, said it was,
“a proportionate response to the pressing social need to protect children from all forms of physical or mental violence, injury or abuse”.—[Official Report, 5/5/04; col. 527.]
I hope it has produced much greater clarity in this area than was present.
My Lords, following the question already asked on human rights issues, is it not rather strange that we seem to be allowing an element of violence against children that would be quite unacceptable if it were between two adults? If I strike an adult in the street, he or she is likely to get extremely angry and in fact bring some kind of case against me. If I strike a child in the street, the same is not the case.
My Lords, I fully understand the point the noble Baroness is making, but I say again that these issues were debated at length in the discussions that led to the incorporation of Section 58 into the 2004 Act, and Parliament’s will on this matter could not have been clearer.
My Lords, there is an impressive respect for Parliament in the Minister’s reply, which I think we will all appreciate. Does he not agree that the idea behind this part of the Act is very important, but that education and persuasion change parental behaviour, not putting people before a court?
My Lords, physical violence against children in custody is regulated by laws other than the Children Act 2004. While I accept that it is an issue we need to pay careful attention to, the provision I quoted is specifically in respect of parents and parental authority over their children.
My Lords, my noble friend Lady Walmsley mentioned the United Nations Convention on the Rights of the Child. We have recently heard that during the past few months 17 year-old soldiers have been placed in active combat. Will the Minister please explain that?
My Lords, in response to something the Minister said, is he aware that 16 other European countries already have a total ban on the physical punishment of children; that four more have already declared the intent to do so; and that in none of those countries where this has been a clear law for many years are the prisons full of caring parents who occasionally lose it?
Parliamentary Constituencies (Amendment) Bill [HL]
My Lords, I beg to introduce a Bill to reduce the number of parliamentary constituencies, amend the rules governing the number of electors in each constituency, and for connected purposes. I beg to move that this Bill be now read a first time.
Moved accordingly, and, on Question, Bill read a first time, and ordered to be printed.
Welfare Reform Bill
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an instruction to the Grand Committee to which the Welfare Reform Bill has been committed that it consider the Bill in the following order:
Clauses 2 to 21,
Clauses 22 to 27,
Clauses 29 to 39,
Clauses 40 to 57,
Clauses 58 to 61,
Clauses 62 to 65,
Clauses 66 to 69.—(Lord McKenzie of Luton.)
On Question, Motion agreed to.
Mental Health Bill [HL]
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 2 to 21,
Clauses 22 to 26,
Schedules 3 and 4,
Clauses 27 to 33,
Clauses 34 to 39,
Schedules 6 to 8,
Clauses 40 to 42,
Clauses 43 and 44,
Clauses 45 to 48.—(Lord Hunt of Kings Heath.)
On Question, Motion agreed to.
Forced Marriages (Civil Protection) Bill [HL]
Concessionary Bus Travel Bill [HL]
Read a third time.
Clause 1 [The national concession]:
1: Clause 1, page 1, line 14, after “vehicle” insert “or community transport vehicle where a suitable public service is not available”
The noble Lord said: My Lords, we have previously discussed the exclusion of community transport from the Bill. I have chosen once again to present this amendment due to the importance of community transport to some of society’s most vulnerable people.
Drawing on my experience as leader of Essex County Council, I can tell your Lordships that many of our residents, even in places like Essex, live in rural locations, which necessitates the provision of community transport as the most efficient method of providing a convenient and effective service, particularly to those in the most remote settings. The alternative is to commission bus services to those areas that, due to the spread of the population there, would transport only a minimal number of passengers. Not only is that economically inefficient, it is irresponsible, as carbon emissions per person on such a journey would be very high. As an advocate of efficient and sustainable public services, I find the notion of empty buses touring the countryside unpalatable. It was suggested in our previous debate that community transport would stop the use of some rural buses. I am not advocating that; there are times when community transport is the most suitable way to serve rural areas.
The people who live in remote areas, particularly older people, would often be those who would benefit most from the concessionary fares scheme. Excluding community transport from the scheme demonstrates the paradoxical nature of the Bill. There is the intention to enable older and disabled people to participate more fully in their communities; however, that good intention is overshadowed by allocation of funding going only to those who enjoy regular bus services.
At our previous debate, the Minister’s response to this suggestion—and I am sure it will be the same today—was that local authorities can expand the provision of the scheme at their discretion. However, local authority leaders need the money to be able to do that, as we will be discussing later.
My authority spends around £75 million on transport of all kinds. To get best value out of that means joining various uses, such as transport for schoolchildren being available for people going to disabled centres, elderly people, and so on. Anyone who knows anything about local area agreements in local authorities knows that the money is pooled. To get the best value out of it you would need the sort of transport I am describing, not bus services. Therefore, the people whom I am talking about would not benefit from this legislation.
I still hope that the Minister can see some way in which the Government could bring community transport into this area, if not now later on, as it becomes more necessary to look at varied methods of transport. The Community Transport Association found that only a minority of authorities provided reimbursement to community transport schemes, and those that did so usually only reimbursed half, rather than the full cost. I strongly argue that this Bill could discriminate against rural communities and against the disabled and older people in those communities. I hope that even at this late stage the Minister could reconsider this matter. I beg to move.
My Lords, I support the noble Lord, Lord Hanningfield, on Amendment No. 1. I will speak to Amendments Nos. 2, 3, 7 and 8, which are grouped with Amendment No. 1. Amendment No. 2 deals with the extension of the transport concession to a companion whose assistance a disabled person may need to travel on public transport, and Amendment No. 3 deals with the definition of mental disability.
Amendment No. 2 would entitle a companion to travel free of charge where a disabled person needs their assistance to be able to travel on public transport. Amendment No. 3 seeks to introduce a more straightforward definition of mental disability by reference to the Mental Health Act 1983. On Report, I said that I thought more streamlined amendments might be brought forward to deal with the definition of mental disability in a neater way, and Amendment No. 3 is one of those. Amendments Nos. 7 and 8 parallel Amendments Nos. 2 and 3 with respect to the London scheme.
I do not propose to detain your Lordships overlong with these amendments. They stand together in a group that seeks to extend the scope of the Bill in a number of ways. We say that they are marginal extensions, but the Minister has made it clear that he does not agree. He may concede that the extensions are marginal when set against the total extension of concessionary travel introduced by this Bill, but at all events he has made it very clear that the Bill already does a considerable amount and it simply is not possible to push the envelope any further at this stage. I respect that view. He has been very fair. We have had a full debate, and he has explained his position fully and carefully. I thank him for his very open and accessible approach and his willingness to engage in dialogue on the amendments.
The Bill already achieves quite a lot; I believe the Minister said it was going to cost an extra £1 billion. I know that he is not unsympathetic to the points of principle that we are raising, and that it is simply a question of resources at this time. I know that he will continue to reflect on the matters that we have raised and will undertake a review to see whether it might be possible to do more at a later stage. In particular, Age Concern would like to see the Government producing a report within one year on a concessionary solution for people who do not have bus services in their area or who, for one reason or another, are unable to use bus services. Help the Aged has also recently published a study on local bus services and travel concessions, which I commend to the Minister. If he could tell us that he would be prepared to look at those reports, reflect on them, and see how the matter might be taken further at some later stage, that would be a very helpful conclusion to this debate.
My Lords, I am grateful to both noble Lords for raising these important issues, which we considered at earlier stages of the Bill. As I have explained, the Bill is about expanding the geographical scope of concessionary bus travel, not about extending the concession to other groups of people or other modes, as envisaged by these amendments.
As the noble Lord, Lord Hanningfield, was generous enough to acknowledge, the Transport Act 1985 provides local authorities with considerable flexibility to offer more than the statutory concession to their residents. There are numerous examples of councils offering concessions to additional groups of people and companions of disabled people and, as we discussed at other stages, concessions on community transport services. I understand that the noble Lord, Lord Hanningfield, was emphasising the money aspect. We shall have a chance to discuss that later this afternoon but, at this stage, I indicate that his amendments would cost money.
The Bill does not stop local authorities continuing to use their discretionary powers to provide enhancements to the proposed national minimum, taking account of their local circumstances. The Government have sought to provide local authorities with more freedom and flexibility in choosing how they use their resources so as to best reflect their local priorities. That approach has been supported by local government.
As I indicated on Report, at present we are not in a position to commit further funding to concessionary travel. As the noble Lord, Lord Low, indicated, a very sizeable sum has been allocated for the introduction of the main proposition behind the Bill. Therefore, I am sure that noble Lords will agree that we have already done a great deal to improve the well-being of older and disabled people, who are among the most vulnerable in society.
I hope that noble Lords will forgive me for repeating that from April 2008, as the noble Lord, Lord Low, generously acknowledged, the Government will be providing around £1 billion of funding each year for concessionary travel in England—a major public spending commitment of which we are rightly proud. The extension from the local to the national entitlement alone involves substantial new money of up to £250 million.
Although the costs associated with these amendments are not likely to be hundreds of millions of pounds a year, they are significant. This is, of course, money that would have to be found from other areas. On Report, I provided the department’s initial estimates of the annual cost of the extensions envisaged by the amendments—around an extra £10 million a year for carers, approximately £50 million for people with mental impairments and at least £25 million for community transport. Those costs are purely indicative and could be much higher, depending on the eligibility definitions, which are far from clear at present, the degree of take-up, the extra concessionary travel which may well be generated, the switch from other modes, travel behaviour and the amount of additional capacity required. The existence of all those inter-related factors, which at this stage we can only estimate, makes the issue of costs very difficult, but they are not insubstantial, particularly against the background of the money that has already been devoted to the Bill.
We are not ruling out such extensions in the future, although noble Lords will recognise that I am not in a position to make commitments now—less so now that, as from today, I have moved from this brief to the Treasury. In any case, our concerns are not confined to issues of resources. As explained in Committee and on Report, these amendments raise a number of complex practical problems.
I remain concerned about the potential implications of Amendment No. 1 for the community transport sector, as I emphasised during our previous discussions. Introducing a full waiver of the fare for a large number of people would represent a significant shift for community transport in this country. We have had no assurances that the community transport sector could meet the extra demand generated from such a change, certainly in the short term. If we accepted Amendment No. 1, we would run the risk of disappointing many vulnerable people who might not be able to access the services that they would have the right to expect. Such a change would also place additional administrative burdens on the community transport sector, which is of course voluntary.
Not all community transport operators may actually want to be included in a mandatory scheme. We hear that some operators are concerned about the extra administrative, accounting and auditing requirements that would result from inclusion. That may discourage volunteers from donating their time to help to run these very valuable services. We also hear that some are worried by the potential loss of autonomy, the loss of the voluntary ethos and the potential push that that will give to commercialisation. It is only proper that all operators are given a full opportunity to comment on these proposals as they may have profound implications for the voluntary sector.
We would also need to think very carefully about the potential impact of such an extension on current rural bus services. Marginal routes would almost certainly be affected adversely if free travel were available on all community transport. The noble Lord, Lord Bradshaw, made that point in his contribution on Report. In the wider work that the department is carrying out on bus policy, following the Putting Passengers First document published in December last year, we have been and will continue to engage with those representing community transport interests. We very much value their input.
I understand from the noble Lord, Lord Low, that over the coming months stakeholder groups may be doing more work on the issues raised in his amendments concerning the definition of disability. As I have indicated to him, we would of course be interested to see that work. I hope that it will look at the practical and administrative issues that I have mentioned, such as definitions, the problem of the mitigation of fraud, and the fair assessment of those who are eligible. We know, for example, that there is sensitivity around the use of the words “carer”, “companion” or “personal assistant”. We will be happy to discuss those matters in more detail once the national bus concession has been in place for a year or so.
We have also noted the concerns, expressed eloquently by noble Lords on behalf of stakeholder groups, about the interpretation of the Secretary of State’s guidance to local authorities on eligibility of disabled people for concessionary travel. The department keeps that guidance under constant review. Indeed, we reissued it just over a year ago in November 2005. Shortly, we shall be meeting with the concessionary fares stakeholder group, which consists of about 20 different organisations representing the interests of older and disabled people. The guidance on the definition of disability is something we can discuss with them as part of the implementation of the national concession, as the noble Lord, Lord Low, was pressing me to do. We are particularly interested to understand whether there are genuine issues on ambiguity of interpretation of the current definitions. We are more than happy to discuss these matters in more detail with stakeholders and to discuss any work they may have undertaken, once the new national concession is up and running.
I am pleased that we have had the opportunity to discuss these important issues on the Floor of the House and in private discussions to which the noble Lord, Lord Low, has made an outstanding contribution. I thank noble Lords for their contributions. However, at this stage, I cannot accept the amendments, which although well intentioned are premature and I do not believe they represent the best way forward. I hope that noble Lords feel assured that we will keep the issues under close review; and we are prepared to meet interested parties on them. I hope that noble Lords will feel able not to press their amendments and that the noble Lord, Lord Hanningfield, feels able to withdraw Amendment No. 1.
My Lords, I thank the Minister for that response. I am still disappointed with it. Towards the end, he used the word “premature”, which I do not accept. As we are discussing this legislation, the new local government Bill is starting its passage through Parliament in the other place. The local area agreement, on which the Government are putting so much emphasis, means cross-cutting services and transport is already being subsumed. As leader of Essex County Council, I am worried about that. We are not going to spend any more; we just want better value for the £75 million. I am not suggesting more money to the Government, but better value from the £1 billion we will spend on concessionary transport. That means cross-cutting and looking across services. Although the Minister said “premature”, I would not be surprised if we were back here discussing how we get better concessionary travel through cross-cutting services, supporting various parts of the community with transport in various ways, in a year or so. It is not just one service. That is the Government’s own policy, looking across services and how we provide them, as well as local government working with the health authorities. That is where concessionary transport comes in.
The Minister talked of pressure being put on voluntary services, but the Government’s LAA agenda involves the voluntary sector in this. As leader of a county council, I am busy working with and supporting the voluntary sector, to ensure that it plays its full part in developing the Government’s policy. I wish the Government would be more joined up, as we are trying to be in local authorities. In supporting vulnerable people through travel, this legislation could well be out of date in two or three years.
My name is on the amendments of the noble Lord, Lord Low of Dalston, which I obviously support. I shall allow him to respond for himself in a moment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
2: After Clause 1, insert the following new clause-
“ROLE OF THE COUNCIL
Omit sections 2 to 5 of LSA 2000 (main duties and powers).”
The noble Lord said: My Lords, I join the noble Lord, Lord Hanningfield, in thanking the Minister for his characteristically full and helpful response. I, too, was a little disappointed at the timescale he signalled. His suggestion was that when the national concession had been in place for about a year, the stakeholders might take an initiative. Although I recognise that it will take some time to carry out a review of all the issues we have talked about and to meet the Minister’s points, I hope that it will be possible to start a little earlier. Perhaps it will be possible for the Minister and his department to take the initiative in calling the stakeholders together. I shall be happy to indicate to the Minister who the most prominent stakeholders might be; I have already mentioned a couple.
The Minister has his work cut out for him in piloting this Bill through Parliament and getting the national concession extension in place. I obviously do not expect the Minister and his department to take any initiative tomorrow, but would hope that before a year was out, maybe in the next six to nine months, he might be able to call the stakeholders together to indicate the matters that need to be addressed. I am sure that the stakeholders are working on it as we speak. Taking that action so that stakeholders and officials can get down to tackling the issues jointly, and we do not have to wait for the extension to be in place for a whole year before tackling the ancillary issues, will be an extremely helpful move. I beg to move.
My Lords, I had hoped to anticipate any comment on Amendments Nos. 2 and 3 in my reply to Amendment No. 1, because the amendments were grouped together. I assure the noble Lord that I stand by what I said; my department would be eager to meet with the appropriate groups as policy evolves in this area. We already have a meeting scheduled, and we want to stay in contact. The Bill is the start, not the end, of policy. It is an important start, and there are significant costs attached. We recognise that groups of disabled people and their representatives will want to press us further in this area, and we will be happy to meet them once the Bill is under way.
4: Clause 1, page 2, line 20, at end insert “, and
(c) that is compliant with the ITSO standard, as detailed under Crown copyright in 2004.”
The noble Lord said: My Lords, we have already debated the proposed national smart card scheme at length, and there is cross-party consensus that such a scheme is imperative. On Report, there was a dispute about whether the legislation should formalise the intention to implement the scheme using the ITSO standard to ensure uniformity across the country. The Minister assured me that the Government are committed to introducing a national smart card and have taken steps to achieve that goal. However, he was reluctant to amend the Bill to formalise that intention. As it stands, there is provision for the specification of the permit in regulations, which the Minister suggested could permit an ITSO-compliant smart card. However, the provision remains ambiguous: the ITSO standard is not robustly specified, so the Government would be able to change the specification if they wished. I accept that that is unlikely, but local authorities, which will be responsible for delivering the scheme, would welcome the clarity created by this amendment. This debate has featured heavily throughout the passage of the Bill, and I hope that the Minister will be willing to act on the reasoned and extensive argument he has heard regarding the amendment. I beg to move.
My Lords, I support the amendment. I would have added my name to it, but I was not here to do so. From the beginning of the Bill’s passage, we argued that the ITSO standard is important as a token to show that we are moving towards compatibility between smart cards. The last thing we want is companies introducing smart cards that are not compatible and having to bring them together. I hope the Minister can give us concrete reassurances that the Government are not going to allow a free-for-all to develop. We hope he will commit to ITSO-compliant smart cards.
My Lords, I have a slight feeling of déjà vu as we address ourselves to this amendment. It is difficult for me to see what further assurances I can give noble Lords about the Government’s firm commitment to smart ticketing in compliance with the ITSO standard. The amendment is clearly motivated by the laudable aim of ensuring the faster and wider spread of smart ticketing, which we discussed in some detail in Committee and on Report.
We are entirely supportive of that aim. Indeed, the department has already done a great deal to promote the use of smart ticketing. We are committed to the use of smart cards in the transport area and I reassure noble Lords that we are committed to the ITSO standard, which we see as vital to ensure the interoperability of smart cards across the country. However, I do not accept that it is appropriate to make amendments in the Bill in respect of this issue. Clause 1(5) provides for the specification of the permit in regulations, and those regulations could specify that the permit be an ITSO-compliant smart card. Under the Bill’s current provisions, the Secretary of State can ensure that permits issued by local authorities both outside and within London are in a form he stipulates. That can cover a unified appearance and ITSO compliance.
I cannot accept the amendment. We firmly believe that technical matters such as this have no place in the Bill. They are better suited to regulations, and that is where we intend fully to address them. Moreover, a number of technical and practical issues need to be fully considered before we can specify these necessary requirements in legislation.
Let us consider for a moment what would happen if, in a few years, the ITSO standard is renamed. We would have to amend primary legislation at that point. Surely, that is not what the noble Lord intends.
The Department for Transport has a task group—consisting of representatives from all tiers of local government and from bus operators—to advise on the practicalities of implementation and the specification of the pass. They meet fortnightly—indeed, they are meeting in two days’ time—and we value the expertise they contribute.
I hope that the noble Lord recognises therefore, and acknowledges, the efforts that the department and others put in to move forward swiftly on the form of the pass, which he regards as desirable, and so of course do we. It is imperative, however, that we have a workable scheme in place for April 2008, so that an eligible person can use their pass anywhere in England. Subject to this requirement, which must be the Government’s priority, I am happy to reiterate our goal of having ITSO-compatible smart ticketing spread as far, and as fast, as possible. With that in mind, I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, I thank the Minister for that answer. There is no difference of policy between us; we all want to see this happen. We on these Benches just want to make certain it happens, and are trying to devise ways through the legislation to ensure that. I accept that ITSO might rename itself, and that it might be difficult to have a piece of legislation which specifies ITSO if its name is changed in a couple of years’ time.
I accept what the Minister says. We shall watch very carefully the regulations as they are published. We shall also carefully watch and question the development of the scheme over the next few months. We all want the end result out of this, and it is imperative that the Government push on with it. The Minister has given several assurances, which we wanted to hear again today. We shall follow this issue with some vigilance. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Reimbursement of operators]:
5: Clause 3, page 3, line 32, at end insert—
“(4) Amend section 150 of the 2000 Act (procedure for reimbursement arrangements determined by authority) as follows.
(5) In subsection (4)—
(a) for “subsection (3)” substitute “subsection (3)(a)”; (b) for “28 days” substitute “56 days”. (6) After subsection (4) insert—
“(4A) An application under subsection (3)(b) shall be made by notice in writing given not later than 28 days after the date on which the arrangements, or the variations, come into operation.””
The noble Lord said: My Lords, this returns to a subject we discussed both in Grand Committee and on Report, where we drew attention to the fact that the appeal period after a scheme is implemented is too short for an operator to make a meaningful appeal on the basis of any information which he might have to hand. We have sought, through discussion—for which I thank the Minister—to draft an amendment. Amendments Nos. 5 and 9 provide the longer period of 56 days for that appeal to take place. I am sure that as a result there will be fewer appeals and less bureaucracy and I think that the bus industry will be very satisfied that this is a step in the right direction. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Bradshaw, for his careful consideration of my comments and, indeed, objections, to his amendment at Report stage. I am very pleased that he has returned with an amendment with which I have a great deal more sympathy.
As the noble Lord explained, his new amendments focus purely on extending the deadline within which bus operators can appeal to the Secretary of State over the levels of reimbursement set by local authorities. This is currently 28 days; his amendment would extend it to 56 days in England in respect of appeals against reimbursement of the national concession under the Transport Act 2000 and in respect of appeals against reimbursement of concessionary schemes under the Transport Act 1985. As both sets of appeals are, in practice, often made jointly by operators, the noble Lord’s proposed changes to the 1985 Act would help to facilitate this practice. I undertook on Report to consider the issue further. We had a useful discussion last week and I am satisfied that we can look upon the noble Lord’s amendments a great deal more favourably.
I recognise that bus operators will welcome the additional period of time within which they will be able to lodge appeals. We hope that the extra time will offer scope for the full gathering of high-quality data so that any appeals which operators feel compelled to make are firmly grounded in empirical evidence. With a reduction in the possible incentive for lodging speculative appeals, it may even be that this change will result in a reduction. That can only be welcomed by local authorities. It will reduce some of the uncertainty that they might otherwise face.
Around a quarter of appeals made in this financial year were withdrawn or agreed locally in the weeks after submission. As I explained in Committee, choosing not to set a deadline for the submission of appeals was unacceptable. Fifty-six days is a reasonable proposition. Of course, even with this extension, we will still expect bus operators to start their consideration of reimbursement arrangements as soon as local authorities publish their concessionary travel schemes at least four months before the start of each financial year.
I am grateful to the noble Lord, Lord Bradshaw, for his constructive approach in taking on board my earlier concerns. I am glad that we have reached a consensus on the best way forward and I am happy to accept his amendment.
On Question, amendment agreed to.
6: After Clause 3, insert the following new Clause—
“Reimbursement of travel concession authorities
Where a travel concession authority has responsibility for the administration of the national concession including the reimbursement of operators as defined under section 3(2), the Secretary of State shall reimburse the authority the full costs of doing so, including capital and set-up costs.”
The noble Lord said: My Lords, we now come to a slightly difficult point. The Government have willed the end that elderly people and others will have concessions but they have not willed the means to the local authorities which have to pay the bus operators for the concessions that people enjoy.
I have been talking to bus operators and local authorities in the past few days. We are in a situation where some authorities have large concession bills and are struggling to pay for them, and other local authorities are getting too much money. It is probably the case that the Government have made sufficient money available, but the method of distribution through the rate support grant can cause difficulties for concession authorities receiving the money. I shall not wax lyrical, but the rate support grant is a crude method of dividing up the available resource between the local authorities concerned. This relates to many things, but the number of elderly persons using buses is probably not one of them.
In any case, it comes into conflict with the Government’s policy relating to the floors and ceilings which are applied to local authorities when the rate support grant settlement is made and when they set their council tax. We are aware that local authorities—the noble Lord, Lord Hanningfield, will speak for himself, I am sure—have a responsibility to pay for things but that other rules prevent them from receiving any money.
We are firmly in favour of the Bill. We believe in the travel concessions that have been granted. We are not quarrelling with the end; we are quarrelling with the means that the Government have chosen. It is essential before more money is pumped in at one end that the method of distribution at the other is faced up to. As the Bill progresses on its parliamentary course, the Government must take careful notice and table some amendments that will make it work. There is a real problem: a real problem for pensioners and a real problem for local authorities. It is the Government's responsibility to come forward with a proper mechanism to fund the scheme. I beg to move.
My Lords, my name is attached to the amendment. We have had a discussion about the financing of the Bill, which, as the noble Lord, Lord Bradshaw, said, we all support. The first time that we had that discussion, I got the same look that I usually get from Ministers when I refer to the fact that the Government say that they have put money in for something but that some people do not get it because of how the system works. With 15 counties and other authorities on the floor, one gets only a certain amount of grant whatever legislation is passed. That can go on for three years or so.
That is totally unfair, because if we want to implement legislation, it is not right if the Government announce it and announce supposedly new money for it but no one gets it. A mechanism must be found if the Bill is to work that gets the money that the Government say that they are giving to local authorities to implement the legislation. I think that my noble friend Lord Bruce-Lockhart may be commenting from the LGA perspective in a moment. I very much support the measure, but ways must be found to make certain that the money gets to where the spending is. That is the point of the amendment.
My Lords, as chairman of the Local Government Association, I seek clarification from the noble Lord, Lord Davies. We very much support the Bill and the concessionary fares scheme. We believe that it is beneficial and desirable. It was effectively administered by local authorities in the change from half to full fare in April 2006 and we look forward to the 2008 national scheme.
There is an issue of payment and the issue of principle. In introducing a free concessionary fare scheme, we assume—I feel sure—that the Government were not saying simply that it would be free as you get on the bus but you pay the extra through your council tax. However, in places such as Tewkesbury, a 9 per cent increase in council tax above the cap is being talked about because of the pressure of payment on concessionary fares. We are also seeing the pressure in places such as Newcastle.
The first point of principle was that adopted by the Deputy Prime Minister and the local government Minister in his Statement to the other place in November 2005, when he introduced the “new burdens” mechanism. That stated clearly that spending departments would pay the full cost of new legislation. First, can we have a recommitment from the Minister to that principle of what the Government called the new burdens policy? Secondly, we assume that that covers both the revenue cost and the capital start-up cost.
We then come to the point introduced by the noble Lord, Lord Bradshaw, and my noble friend Lord Hanningfield about distribution. That is not easy and we are not seeing consistency across the country. Because we cannot judge demand and do not know what the inflation costs of the bus fares will be—at the moment, they are rising at about 10 per cent a year—we believe that in the first instance, perhaps in the first two years, the best mechanism is simply a reimbursement scheme; the automatic repayment to local authorities on costs that are verified by their independent external auditors. That would be fair. After two years, when we understand the distribution and the demand across the country, we could change back to a block-grant scheme. Will the Minister confirm who will administer this? I think that the Bill still leaves room for this to be administered either nationally or regionally and locally because of the Government’s commitment to devolving. Will the Minister confirm that it will be administered locally?
Finally, some very effective working groups have been set up between the Local Government Association and the Department for Transport, and the Local Government Association has pressed for the mechanisms and the procedures to be known soon. We did ask early in 2007 whether we could know those so we could get on and plan for the new scheme, to which, as I say, we very much look forward.
My Lords, it is with delight that I return to this subject, not least with the noble Lord, Lord Bruce-Lockhart also present, as if reinforcements were necessary after our debates on the preceding stages of the Bill. I do not have the level of expertise in local government of all three noble Lords who have spoken in this debate, but start by reiterating what I said on Report. Of course I agree with the sentiment that local authorities should be adequately funded by central government for the reasonable and additional costs to them of administering this mandatory concession. It is government policy to ensure that the net additional costs of new burdens that they place on local authorities are fully funded. That is why, when the Budget announcement on the concessionary fares was made, the Chancellor was emphatic about the costs that were involved and predicted those costs for a number of years. He indicated that this was a proper burden on the national Exchequer.
The Government are providing up to an extra £250 million of funding per year for the improved concessions that the Bill introduces. This includes a contingency over and above what we currently estimate the actual financial impact of the new concession to be. This is in addition to the £350 million in 2006-07 and the £367.5 million in 2007-08 that we have provided to cover the extra costs of free local bus travel. I hear what the noble Lord, Lord Bruce-Lockhart, says about bus fare inflation, but I remain confident that the overall level of funding will be sufficient.
As I have said on a number of occasions, from April next year the Government will provide around £1 billion a year to fund concessionary travel. That will be recognised as an obligation that the Government have clearly undertaken. I think that many in local authorities agree that this funding is sufficient in aggregate. The issue is therefore not how much we have provided and whether we have provided enough, because we believe we have. The issue addressed by the amendment is distribution. We think that the cake is big enough. How do we slice it up to be fair?
I note that the amendment has dropped the previous call for the full costs to be funded through a direct annual grant. Noble Lords will recognise why I objected to that, and I appealed to their perspective on local authority finance when I thought that they should withdraw that proposal. Nevertheless, the amendment would require the adoption of a specific grant for funding the mandatory concession by default. There is no other way of implementing the amendment.
As I explained on Report, such an approach goes against government policy. We have been supported by local government in moving away from specific grants and in providing local authorities with freedom and flexibility in how they use their funding. If, as the amendment proposes, central government were forced to fund the full cost of schemes run by local authorities—and I emphasise to the noble Lord, Lord Bruce-Lockhart, that the local dimension is emphatically envisaged for this policy—whether those costs were reasonable or not, where would the local authorities’ incentive be to negotiate cost-effective schemes with operators and to manage overall costs effectively? They would be the negotiators. The Government would be the payer. The implications of offering a full indemnity for costs, which is what this amendment does, would be profound.
The existing arrangements contain checks and balances to ensure that public funds are spent wisely: an incentive for local authorities to reimburse cost-effectively by a fair amount and a right of appeal for any operator who believes he has been disadvantaged. This amendment would mean that claims will be made for all costs, whether or not they are reasonable or could have been mitigated. The Secretary of State might also be faced with claims for remote consequential costs such as those costs to an authority of defending operator appeals or the costs of poorly negotiated service contracts that are poor value for money. Noble Lords constantly emphasise their roles in regard to highly responsible local authorities. Therefore, they are surely not supporting an amendment which might lead to such recklessness and a lack of accountability?
The system we have now may not be perfect—I almost said “is not perfect” but that is too categoric—but it is fair to the taxpayer and operator alike. It is important that we get a good deal for the taxpayer. Giving an unconditional commitment to fund full costs, with no reference to such costs being reasonable, and with the removal of any incentive for efficient negotiation, does not provide that.
On Report, noble Lords pressed for reassurance that the Government recognise local authorities’ concerns with the funding distribution for the national concession and are doing something about it. Well, we are. I take on board the point that the noble Lord, Lord Bruce-Lockhart, made. I would not be able to speak so assertively from this Box if I did not know that effective action is being taken.
I reiterate that the Department for Transport, the Department for Communities and Local Government and Her Majesty’s Treasury are looking at options for distributing funding for provision of the statutory concession. It is in all our interests to try to ensure that this distribution matches as closely as possible where the costs actually fall. This includes proper consideration of those authorities that have not featured in the debate today but did in our earlier considerations. Those honeypot authorities referred to in Grand Committee and on Report are where special factors obtain.
The various options are also being discussed with the Department for Transport’s concessionary fares working group, which includes representatives from all tiers of local government—districts, counties, unitaries and PTEs—and operators. The group meets monthly and is making a valuable contribution to the department's work in considering implementation arrangements for the national concession. We welcome the expertise that its members bring to the table.
In addition, the Department for Communities and Local Government's settlement working group will shortly be starting discussions with local authorities on the grant settlement for the next three years. Consideration of funding the new concession will be taken forward within this proper forum. Statutory consultation will take place over the summer, not in one or two years' time. As noble Lords will see, we are consulting extremely widely on this issue on an ongoing basis and we understand its importance for local authorities. We are confident that the extra funding we have earmarked is sufficient to cover the total extra costs to local authorities. We are also sensitive to set-up costs, which were emphasised by the noble Lord, Lord Bruce-Lockhart, and the department is carefully considering this in dialogue with the concessionary fares working group.
Funding is of course important. We do not, however, believe that the best way forward is to address it in the Bill. Surely it is better to allow the department’s, and the Government’s, extensive consideration and consultation on funding to run its course properly rather than binding the Secretary of State’s hands in primary legislation. Time is of the essence in order to hit the 2008 deadline.
Finally, the drafting suggested would seem to include an obligation on the Secretary of State to refund local authorities in Wales for reimbursement provided to operators providing concessions in Wales. Since concessionary travel is a devolved issue, it would not be appropriate for us to legislate in this area. I am sure that the noble Lord, Lord Roberts, on the Liberal Democrat Benches will recognise the importance of this point. This may not have been the intention of his colleagues, but it makes the amendment unworkable and therefore even more unacceptable.
We of course recognise the concerns that noble Lords have raised on numerous occasions with regard to the Bill. Equally, I would hope that they recognise that we are doing the necessary work to address their concerns. With this in mind, and with the noble Lord having recognised the generosity with which I responded to his previous amendment, I hope that he will show similar generosity and withdraw his amendment.
My Lords, we have heard from the Minister. No local authority is seeking an indemnity against other costs which arise. We seek simply to pay the bus fares of concessionary fare passengers in the future. There are ways out of that. A national fare could be set, as the National Assembly for Wales has done. Each local authority issues the bus passes, but they issue against a national fare. We have put down this amendment because the Government have not come forward with satisfactory funding arrangements. I have sat upstairs in the Public Bill Office trying to find ways to amend this legislation. We have used our best endeavours and have put down something which tells the Government that this is unfinished work. As I said previously, the Government have legislated for the ends without legislating properly for the means of delivery.
In the circumstances, I believe that the amendment should be in the Bill so that when it goes to another place it will remain a thorn in the Government’s side and will constantly remind them that they have not properly finished the business. Therefore, the amendment should stand, so that the Commons has time for other thoughts. I am sure that the concessionary fares working group is working hard and that discussions are going on with the Treasury. We want action, which is why I wish to test the opinion of the House.
Clause 4 [The national concession: journeys beginning on London bus network]:
[Amendment No. 7 not moved.]
Clause 7 [Requirements as to uniformity]:
[Amendment No. 8 not moved.]
Schedule 2 [Minor and consequential amendments]:
[Amendment No. 9 not moved.]
An amendment (privilege) made.
Corporate Manslaughter and Corporate Homicide Bill
Clause 1 [The offence]:
1: Clause 1 , page 1, line 11, leave out from “force” to end of line 13 and insert—
“( ) a partnership, or a trade union or employers’ association, that is an employer.”
The noble and learned Lord said: My Lords, in the absence of my noble friend Lady Scotland, I am pleased to be joining the consideration of the Bill. I am pleased that the first time I rise is to move an amendment that responds positively to concerns which have been put by a number of noble Lords and is supported by the Official Opposition—at least, the noble Lord, Lord Hunt, has added his name to it. I do not think that I will be in quite that position later.
The amendment deals with the extension of the offence to unincorporated bodies. The Bill that was introduced in the other place focused on the question of corporate liability for corporate bodies. The mischief that the reform seeks to address is the difficulty that has arisen in practice, under the identification principle, of prosecuting large corporate bodies for very serious management failure. To deal with that, the new offence defines a liability for management failure, which is not dependent on the guilt of a particular individual. The problem of finding a person to be liable for this is sidestepped in the case of a corporate body, because liability can be attached to the corporate body itself, distinct from any specific individual.
The circumstances are somewhat different with unincorporated bodies. These exist as a group of members or individuals, with no separate legal personality. The question of attributing liability to the body does not arise because there is no body as such. So there are some differences between the position of corporate bodies and unincorporated associations. However, we recognise that the offence goes deeper than simply setting out the legal liability of the corporate body. It is primarily designed to offer accountability where the way in which an activity has been managed or organised has been grossly deficient but no individual can be identified as responsible for that failure. Those are circumstances that can exist whether an organisation is incorporated or not, and we recognise the concern about extending the offence to such organisations.
The amendment extends the offence to partnerships, trade unions and employers’ associations. I freely acknowledge that we are still taking a cautious approach to the extension. As it happens, unincorporated bodies are not currently liable to be prosecuted for gross negligence manslaughter; they include a wide range of smaller and informal groups, including those in the voluntary and charitable sectors. Those smaller organisations are less likely to have access to advice about the implications of the new offence and they may act in a way that is risk averse to it. We would not want to see that extending the offence had the unfortunate effect of discouraging organisations from undertaking worthwhile activities. On the other hand, the concern is that a lacuna in the law will be left if larger organisations are excluded from the offence.
We have sought to meet this balance by extending the offence in the first instance to a defined range of unincorporated bodies such as partnerships and bodies that already have a quasi-corporate status under statute—trade unions and employers’ associations. That will extend the offence to a range of organisations closely associated with work and business activities which already have an identity as an organisation if not a corporate personality. The amendment also proposes that those sorts of organisation would be covered only if they are themselves employers. That does not mean that they are only covered in respect of duties to employees: they will be responsible under all the relevant duties under Clause 2. But organisations that do not employ staff will not be covered. Noble Lords may think that that has two benefits. First, it will inevitably focus on larger organisations rather than very small ones. Secondly, it will reflect the existing legal position because under the Health and Safety at Work etc. Act 1974 unincorporated bodies will owe general duties to staff and the public. This would not be imposing a new duty on those who are not subject to some duty already.
It was then thought right to allow for the possibility that further bodies might be included in the future. That is the purpose behind Amendment No. 51, which provides a power to extend the offence to further categories of organisation by secondary legislation subject to the affirmative procedure.
I draw noble Lords’ attention to the fact that the Delegated Powers and Regulatory Reform Committee published a report today that expresses concern about the extent of this power. That gives rise to a difficulty. The Government have thought it sensible to start with a clearly defined range of organisations which frequently share many of the characteristics of corporate bodies. That is intended to be coupled with a relatively straightforward way of extending the offence in the future, if that seems to be appropriate. Comments from noble Lords and other quarters have supported the idea of extending the offence, so we are going with the grain in seeking to do that.
The Delegated Powers and Regulatory Reform Committee suggested that we ought to identify the sort of body that the offence might extend to rather than leaving the power general. That is not straightforward. It is not at all obvious to us what sort of bodies the offence might be extended to that would not be included in any form of formulation that we put forward. When one looks at the possibility of defining the sorts of bodies that might be covered, particularly in line with comments that have been made so far, one would probably end up with something that was no narrower than the general power proposed at the moment.
Recognising that the committee wanted a justification for why there should be a power, that is what I have been seeking to put before your Lordships. Put shortly, in practical terms, there does not seem to be a great deal to choose from at the end of the day between the power proposed in Amendment No. 51 and one that seeks to set out more clearly the categories of body, but that is a matter for your Lordships, of course.
Other amendments in this group are also consequential on extending the offence to unincorporated bodies. Amendment No. 41 ensures that there is no loophole in the offence because partnerships do not themselves owe a duty of care. It also makes provision for partnerships to be treated in a manner similar to corporate bodies when being prosecuted for the offence. The opportunity has also been taken to put a number of definitions that are used in various parts of the Bill in a single interpretation clause. That is set out in Amendment No. 52. Consequential amendments remove the various single definitions.
In summary, the Government hope that in putting forward Amendment No. 1 we have addressed a concern expressed by many that the Bill should extend to a wider range of organisations. The Government have accepted that argument but believe that caution is still needed in how that is progressed. That is why the amendments are put forward on the basis that they are. I beg to move.
My Lords, I very much welcome the Government’s U-turn on this whole question of unincorporated bodies. I have added my name to Amendment No. 1 because it is precisely what I sought to persuade the Government about in Committee. However, the Bill has been in existence for a very long time. I rather share the view of the Delegated Powers and Regulatory Reform Committee that:
“We also note that this bill originated from Law Commission recommendations, was subject to pre-legislative scrutiny and has almost completed its passage through both Houses. The more important the delegation, the closer and more careful scrutiny it needs. We have considerable difficulty with such an extension of the bill being delivered by a Report stage amendment tabled at a late stage, not least because we ourselves have not had adequate time to consider the matter”.
I hope that the noble and learned Lord the Attorney-General will learn lessons from this episode. It is very important indeed, particularly when a Bill of this complexity reaches this place, to make sure that we have adequate notice of the amendments. I remain uneasy about Amendment No. 51.
The noble and learned Lord has in effect said to the House that he is not sure that the Government can do this any other way. However, he owes it to the committee and to this House to spend a little more time thinking about ways in which this power could be circumscribed in a little more detail. With that proviso, I very much welcome what he said. However, he needs to take on board and consider more carefully the committee’s recommendations.
My Lords, I join in with the remarks of the noble Lord, Lord Hunt. This topic caused significant concern when we debated it in the Moses Room. We are extremely pleased that, even at this late stage, the Government have moved to meet the concerns that these Benches and the Conservatives touched on.
I also share the noble Lord’s views about Amendment No. 51. As the Minister indicated, a significant difficulty arises when an amendment tabled this late elicits a report from the Delegated Powers and Regulatory Reform Committee, which says in substance that it has not had the opportunity to consider the matter properly.
I hope that the Minister accepts that these Benches have no wish to divide the House on Amendment No. 51 at this stage, particularly as its substance is exactly what we argued for in Committee. Therefore, it would be a foolish move. As the noble Lord, Lord Hunt, indicated, between now and Third Reading the Government could determine whether they could table an amendment to meet the concerns of the Delegated Powers and Regulatory Reform Committee to enable us to re-examine the matter at Third Reading. That would perhaps be an exception to the normal principle that the Government and the House authorities are trying to ensure; that we do not vote on Third Reading. As the noble Lord, Lord Hunt, indicated, this Bill has been subject to extraordinary scrutiny, and we now have these amendments being tabled at a very late stage, so perhaps this could be an exception and we could consider it on Third Reading.
My Lords, I have one comment to make. The noble and learned Lord knows as well as I do that there is no law that an unincorporated association must be small. If I may say so, it is wrong to criticise the Government for taking a very sensible path in Amendment No. 51. For example, the Government could have representations from a trade union or other body that its employees were working in a dangerous enterprise run by an unincorporated association, as it could be—“unincorporated” does not include only the clubs with which noble Lords and the Opposition normally associate it. It could be large, and the Government might then have to consider whether the Bill should apply equally to such an enterprise as to many others. It seems to me that Amendment No. 51 is essential to the Government’s compromise position on this question.
My Lords, first, I am grateful for the general welcome that the amendment has received. One stands here on behalf of the Government in the usual position; if you do something that others want, you are criticised for having left it too late or for having made a U-turn. We have listened, and we have come forward with an amendment. The important point is that the principles of the amendment are accepted and are welcome to the House. Of course, I take on board what the noble Lord, Lord Hunt, said, about lessons being learnt, and I will make sure that his comments are passed on to the Bill Ministers.
On Amendment No. 51, I am grateful to the noble Lord, Lord Wedderburn, for his support. He is absolutely right; we have got to move forward. I take the point, and the noble Lord is right to say, that what has probably happened here is that the committee felt that it has not had enough time to reach a final view on this. I propose to the House that when we come to it, I will move Amendment No. 51 as it stands, on the basis that the Government will consider this further between now and Third Reading. If it seems appropriate to table a further amendment defining in some further way the category of bodies, we would table such an amendment. Obviously, I am not guaranteeing that such an amendment would be tabled, but it certainly would be considered.
On Question, amendment agreed to.
Schedule 1 [List of government departments etc]:
2: Schedule 1 , page 15, line 34, at end insert—
“National School of Government”
On Question, amendment agreed to.
Clause 2 [Meaning of “relevant duty of care”]:
3: Clause 2 , page 2, line 34, at end insert—
“(d) a duty owed to anyone held in custody.”
The noble Lord said: My Lords, the purpose of the amendment is very simple; it is to rectify a glaring deficiency in what otherwise has been a generally welcome Bill, by including,
“a duty owed to anyone held in custody”.
I do not intend to repeat all that was said on Second Reading or in Grand Committee. I rest my case on the stark difference that there is between the rule of law and the provisions of the Bill as they stand on the one hand, and on the other hand the two sets of perverse reasoning put forward by the Government on why neither the rule of law nor the provisions of their own Bill should be applicable to those responsible for the duty owed to anyone in custody.
I am not a lawyer; but two elements of the rule of law seem to me to apply here. First, there is equality before the law, which means that every official, from the Prime Minister down to a constable or a prison officer, is under the same responsibility for every act done without legal justification. Secondly, there is equal protection under the law. The protection that you receive from the criminal law should not depend on whose carelessness puts your life at risk—a public body or a private company—or what they were doing at the time. Also, there is the provision of Article 2 in Section 1 of the European Convention on Human Rights, which states that everyone’s life should be protected by law.
Before Committee, the noble Baroness, Lady Scotland, who sadly is still not with us, in briefing a number of us said that the Government had been very brave and courageous in breaching Crown immunity in this Bill. Anyone reading it for the first time could be forgiven for presuming that this breach applied to the duty of custody, because the Home Office, and therefore its constituent parts, is included in the government departments listed in Schedule 1. Clause 1(1) states:
“An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised … causes a person’s death, and … amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”.
Subsection (3) expands on that, saying:
“An organisation is guilty of an offence … only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to”.
Paragraph 47 of the regulatory impact assessment states:
“The new offence will also apply to a range of government departments and other Crown bodies ... However, the Government recognises the importance of such bodies being clearly accountable for senior management failures that lead to death. The Bill therefore applies the offence to the Crown, and sets out a mechanism for bringing prosecutions against Crown bodies”.
Paragraph 51 of the RIA states that,
“the offence creates no new regulatory requirements, being based on the common law duty of care, and is closely linked to health and safety duties with which Crown bodies must already comply”.
Taken at face value, it seems to me that my amendments are entirely in line with the purpose and content of the Bill, which, as the Government have stated, applies to failures of management and the duty of care when it is owed by government departments and other Crown bodies, both of which are subject to the rule of law that applies to everyone in the country without exception.
However, it would appear that that is not to be. In her briefing, the Minister said that the Government’s bravery and courage did not extend to the inclusion of custody, which was a step too far for government, for reasons that were spelt out in the debates in another place, the Explanatory Notes and the words of the noble and learned Lord the Advocate-General for Scotland and the noble Lord, Lord Bassam, at Second Reading and in Grand Committee. But neither of those reasons seems to stand up to scrutiny.
In Committee, the noble Lord, Lord Bassam, said that the offence of corporate manslaughter,
“should not apply to deaths in custody because the unique set of factors contributing to the safe running of prisons involves too many matters of core government decision-making and public interest to render them appropriate for judicial, as opposed to parliamentary, scrutiny. There are already established mechanisms for investigating the causes of deaths in custody … prisons must act within the constraints of the resources available and balance the needs of all prisoners in making … decisions. The Bill … is about the management of health and safety”.—[Official Report, 15/1/07; cols. GC 196-98.]
But my amendments, then and now, are nothing to do with either core government decision-making or resources. They are entirely to do with the clauses of the Bill that I have already quoted; namely, the performance of management and the duty of care. We live in a pretty curious world where public sector management has to be good or where the owed duty of care applied is subject to core government decision-making based on resource constraints.
Responding to that reasoning, the noble and learned Lord, Lord Lyell of Markyate, said in Grand Committee that the Minister,
“has confused or obfuscated the position. It was not a decision of public policy that there should be an incompetent system in Feltham”—
leading to the death of one Zahid Mubarek—
“or that senior officials … should run a young offender institution in a way that put young offenders at risk of their lives. That is not a matter of public policy, but a matter of bad management and of bad supervision by the Home Office ... The Minister has evaded the real issue that is causing concern to the Committee”.—[Official Report, 15/1/07; cols. GC 199-200.]
The other reasons put forward are that deaths in custody are already subject to public inquiry, inquests, internal inquiries and those conducted by the Prisons and Probation Ombudsman, but those do not stand up to detailed scrutiny either. In view of their track record on this matter, I am surprised that the Government dare to mention public inquiries in their support, because throughout their life successive Home Secretaries and senior officials, such as directors-general of the Prison Service, have resolutely and consistently opposed every application for a public inquiry into a death in custody. The only inquiry that has taken place, into the murder of Zahid Mubarek at Feltham in 2000, followed the determination of the family over four years, despite many rebuffs, and finally the direction of this House.
The Government make frequent reference to their wish to rebalance the criminal justice system—whatever that means—in favour of the victim. To whom do the Government owe more responsibility and explanation than a victim who has lost a loved one who was in their care? I have always taken the line that someone with nothing to hide has nothing to fear from disclosure and everything to gain from having events such as deaths in custody opened up to public scrutiny. Therefore, one can conclude only that someone who opposes a public inquiry does so because he has something to hide. When that person is the Home Secretary, who is responsible for the safety and well-being of all those in his custody and care, one is entitled to wonder at his motivation. That is why I am concerned at his reported attitude to this Bill: that he will pull it if this House decides to vote for my amendment.
I was going to quote at length, but I shall not do so in every detail. Last week’s issue of the newspaper Inside Time—the national monthly newspaper for prisoners—contains an article by Mr Peter Quinn, a former prison governor and co-author of an official report to identify those members of staff at Wormwood Scrubs prison who are responsible for assaulting prisoners and to determine whether disciplinary action can be taken against any of them. He writes:
“We could not recommend this, since the Prison Service's own rules require such action to be taken as soon as possible after the misbehaviour comes to light. On each occasion this had been many years previously. By the time of the review some 40 potential witnesses had resigned, retired, emigrated or died. Some were in prison as a result of assaults”.
So to suggest that these things should follow years after an event does not seem to be very sensible. Mr Quinn also said:
“It was also evident that there were staff who were totally opposed to the corrupt elements of the regime, but that they were vulnerable to vilification by colleagues and experienced lack of support from their superiors. We were invited to make further recommendations and this is why we proposed a public or official inquiry, under a person of standing, to discover how parts of the prison had degenerated into the sadistic mess it became”.
That is not a disgruntled prisoner or a penal reformer speaking but a former prison governor talking about his own service. The Government claim that internal inquiries, such as he was commenting on, that never see the light of day or never result in any disciplinary action in cases where both failure of management or duty of care are proven justify exclusion from the Bill. The third justification—inquest—does not apply either because inquests only go into the causes of death.
It should not be necessary in a civilised society for decency and humanity to have to be imposed by threat, but I venture to suggest that had there been a risk that a charge of corporate manslaughter would have been brought against them, managers at all levels would have taken a great deal more care over the detailed exercise of their responsibilities in the cases of Christopher Edwards, Zahid Mubarek, Sarah Campbell, Joseph Scholes, Paul Day, Gareth Myatt and, I dare say, many others who might still be alive if that care had been properly exercised.
Two distinguished members of the Labour Party in another place, Mr Andrew Dismore, chairman of the Joint Committee on Human Rights, and Mr John Denham, chairman of the Home Affairs Select Committee, have expressed their dissatisfaction that the Government have not cancelled their desire to exclude deaths in custody from the Bill and, separately, have expressed the hope that this House will vote against that exclusion. Nothing I have seen or heard from the Government so far has convinced me that there is any justification in the exclusion. I look forward to hearing whether Ministers have anything further to offer than the unconvincing reasoning put forward so far. This House has both a duty and an opportunity to prevent something which would not make me proud were I part of it. The Prison Service’s statement of purpose says that it has a duty to treat those committed to its care with humanity. I hope that, in agreeing with these amendments, the House will uphold that purpose and the rule of law, demonstrating that we deserve to be called a civilised nation. I beg to move.
My Lords, I warmly support this amendment, moved so comprehensively and convincingly by the noble Lord, Lord Ramsbotham. The state has particular responsibility to those for whom it is immediately and directly responsible. If one is introducing legislation with far-reaching ramifications, one carries the nation behind that legislation much more convincingly if the Government and those in authority say that they will lead by example, making themselves second to none in their commitment to those principles. To say that everybody else must apply this law but they want exemption in their own sphere of responsibility is not a convincing position from which to win the positive support of the nation as a whole.
In moving his amendment, the noble Lord referred to the statement by Andrew Dismore, the chairman of the Joint Committee on Human Rights in the other place. I am a member of that committee; indeed, it is meeting at this very moment, taking evidence from Ministers on asylum policy. With the encouragement of my colleagues, I absented myself to be here for this debate. If the House will forgive me, rather than trying to regurgitate the committee’s sentiments in my own inadequate language, I shall draw the House’s attention to what the Joint Committee on Human Rights has said on this matter.
In our original report on the Bill, we said, starting at paragraph 1.38:
“We welcome the express application of the new offence to a range of Crown bodies and the express disapplication of Crown immunity from prosecution. Both of these, in principle, are capable of enhancing the compatibility of the UK's law on corporate manslaughter with the positive requirements of Article 2 ECHR …We note, however, that the combined effect of other provisions in the Bill restricting the definition or the scope of application of the offence is substantially to restore the legal or de facto immunity from prosecution enjoyed by many public bodies under the present law”.
We gave our conclusions in heavy type:
“In our view the effect of these provisions is to give rise to a serious risk that the UK will be found to be in breach of Article 2 ECHR in the particular circumstances of a future case where the case-law of the Court requires that there be recourse to the criminal law. In particular, the effect of these provisions in the Bill is to preclude the possibility of prosecution for corporate manslaughter in precisely those contexts in which the positive obligation in Article 2 is at its strongest, and may require, in a particular case, that criminal prosecutions be brought: the use of lethal force by the police or army; deaths in custody; deaths of vulnerable children who should be in care, to name just a few examples. This would mean, in situations where responsibility for the death lay with the public body for a management failure, rather than any identifiable individual, recourse to the criminal law would not be possible”.
We put forward more supporting arguments, but I draw the attention of the House to paragraph 1.47:
“In our view, the restrictions on both the scope of the new offence and its applicability are likely to lead, in a sufficiently serious case, to the UK being found to be in breach of its positive obligation under Article 2 ECHR to put in place an efficient and effective system of judicial remedies including, in certain circumstances, recourse to the criminal law”.
That was our first report. We wrote to the Minister about our concerns—we always try to take a reasonable approach if we can—and we were given the courtesy of a very full reply. It would be an abuse of time to quote all the correspondence, but in Legislative Scrutiny: First Progress Report, Second Report of Session 2006-07 we referred to what had happened. We drew attention to the fact that in their response the Government offered three justifications for excluding deaths in custody and in other public sector contexts from the scope of the Bill.
First, we noted that the Government,
“argues that the decisions taken by public bodies when exercising public functions have a public policy dimension, involving matters such as the allocation of public resources, which are matters more appropriate for an elected Government to decide than for criminal courts”.
Our comment on that was unequivocal:
“In our view, while we agree that courts should only have a very limited role in decisions about the allocation of public resources, this reason cannot justify a sweeping exclusion from the new criminal offence of any decision taken by a public body in the performance of a public function”.
Secondly, we noted that:
“the Government argues that public bodies are subject to wider forms of accountability, including accountability to Parliament, accountability under the Human Rights Act 1998, accountability through public inquiries and the existence of specific watchdogs such as the Independent Police Complaints Commission”.
Our conclusion, which was also printed in heavy print, was that:
“In our view, however, those wider forms of accountability have proved inadequate in the past to prevent deaths caused by gross management failures in public bodies, and in any event they cannot have the same deterrent effect as the possibility of criminal prosecution and conviction. The purpose of the offence is to protect lives by preventing violations of the right to life, and the European Court of Human Rights in its Article 2 case-law has repeatedly stressed the importance of the deterrent effect of the criminal law in protecting life”.
The Government put forward a third explanation. We noted that,
“the Government seeks to justify the exclusions on the ground that criminal investigations are costly and disruptive and it would not be in the public interest to impose a resources burden on the Crown”.
I hope we will not be taken as having been dismissive, but we wrote, again in heavy type:
“In our view this concern with cost and resources belittles the importance of what is at stake: the right to life”.
The Joint Committee is representative of both Houses and all parties, and it gave a lot of time to this matter. The strength of the chairman’s comments in the other place is an indication of how the committee felt. Paragraph 2.13 of the report stated:
“Having considered the Government’s arguments, we therefore remain of the view expressed in our earlier report, that the exclusion from the scope of the new offence of deaths in custody and other deaths caused by gross management failure in the public sector where no individual can be proved to be responsible is likely to lead to the UK being found to be in breach of its positive obligation to protect life under Article 2 ECHR”.
The whole House should be extremely grateful to the noble Lord, Lord Ramsbotham, for bringing all his experience, commitment and professionalism to bear on this matter. Having moved the amendment so clearly, I hope that he will receive full support from all parts of the House.
My Lords, this issue should not be a test of one’s political beliefs. A powerful and convincing case has been put forward by the noble Lord, Lord Ramsbotham, supported by my noble friend Lord Judd. The rule of law should be at the heart of what we think about, rather than being directly confronted by this Bill.
This morning I read in the newspaper of the Government’s determination to oppose this amendment. I hope sincerely that that is wrong. I hope also that my noble and learned friend will agree to consider the amendment again and return later with an amendment which embraces what this one seeks to achieve. It gives me no pleasure to oppose the Government, whom I invariably support. But on this occasion why quarrel with an opinion voiced by members of another place and members here of all parties who are deeply troubled by what the Government hope to achieve? I hope that the Government will be frustrated on this occasion.
The noble Lord has put forward a compelling and convincing argument. I hope therefore that my noble and learned friend will understand that this issue deeply troubles many of us, and will agree to the proposition I have advanced. It does not, as I have said, give me any pleasure to do this, but on this occasion I think that I am compelled to do so.
My Lords, I speak to Amendments Nos. 3, 5, 11, 13 and 21 with which I am linked. These Benches very much support the sentiments expressed by the noble Lords, Lord Ramsbotham and Lord Judd.
In our free society, any organisation which effectively has near total control over an individual—be it the police, the Prison Service or a local authority—has a great responsibility to that individual and should be responsible under law for their behaviour. Where deaths occur they have to be thoroughly investigated and, if appropriate, charges brought. This corporate manslaughter Bill should apply to deaths in custody. It does the police no favours to exclude them from the provisions of this Bill.
Currently, relations between the police and many in our society are tender. In today’s media the most reverend Primate the Archbishop of York is quoted as warning that Britain is in danger of
“coming close to a police state”.
While I believe that statement is much exaggerated, the fact that it has been made at all is evidence of the extreme sensitivity of police/public relationships. It is our contention that protecting the police from action under the Bill can only add to mistrust, cynicism and suspicion.
I am surprised that the light, sensitive touch that the Home Secretary normally displays seems to have deserted him on this occasion. We have not taken kindly to the hints that if we continue to press the amendment we risk the whole Bill. Deaths during custodial sentences have not only united the principal opposition parties but also many Cross-Benchers, so ably led by the noble Lord, Lord Ramsbotham. In addition, organisations such as Inquest, Justice, Liberty and the Prison Reform Trust stand four-square with us.
So far, I have heard no speech from the government Benches—excluding those from Ministers—either at Second Reading or in Committee which support the Government’s position. Indeed, we have heard a speech indicating very much the opposite from the noble Lord, Lord Clinton-Davis. As the Bill stands, without the amendment it is not fit for purpose.
My Lords, I am sorry to disappoint the noble Lord, Lord Lee of Trafford, but I support the Government and the proposition they are putting forward. I have been undecided about whether or not it is right to lift Crown immunity in any case and, once one accepts its lifting, where the line is to be drawn. In Grand Committee, we heard powerful speeches from the noble Lords, Lord Hunt of Wirral and Lord Ramsbotham, in support of amendments which have now been brought forward in a slightly different form.
Perhaps I may share some of my concerns with the House. First—I suspect some people may think this is an old-fashioned and quaint view—I have a conceptual difficulty with the idea of the state prosecuting itself, or, at least, one arm of the state prosecuting another arm of the state. I appreciate that we get over that by dividing lines drawn in the sand, as it were, but it does lead to some absurdities. For example, if the amendments were accepted, in Scotland, assuming the evidence supported it, a death in a prison would be prosecuted against the Scottish Executive. In English terms, they would be the defendant; in our terms, the accused organisation. The Lord Advocate is constitutionally responsible for the investigation of all deaths in Scotland; the Lord Advocate is also a member of the Scottish Executive. So, in effect, the Lord Advocate would be taking a decision to prosecute an organisation of which she is a leading member.
In Scotland, the Crown Office and Procurator Fiscal Service is listed in Schedule 1, and yet that body, essentially, would be responsible not only for the prosecution but for the investigation of the offence. I dare say similar issues would arise in England. I notice that the Attorney-General’s Office and the CPS are also listed in Schedule 1.
Before I come on to my real concerns, perhaps I may mention the report of the Joint Committee, to which my noble friend Lord Judd referred. There is a difference between making an argument and making a judgment. The committee makes the argument under reference to Article 2 very well indeed. I accept fully that an argument can be made under reference to Article 2 that we ought to extend the Bill to include deaths in custody. Nor, of course, can one rule out the possibility that as the case law of the European Court of Human Rights develops and as the European convention, which is a living instrument, develops, we might at some stage have to consider extending the Act. But I do not accept the judgment stated at paragraph 2.13 of the first progress report of the committee that,
“the exclusion from the scope of the new offence of deaths in custody ... is likely to lead to the UK being found to be in breach of its positive obligation to protect life under Article 2 ECHR”.
With the greatest respect to the committee, that overstates the position. I believe that what the European Court of Human Rights would expect from the United Kingdom is a full and thorough investigation, possibly an independent inquiry held in public, and the prosecution of any individual found to have committed criminal offences. I do not accept that the European Court of Human Rights would expect the prosecution of one arm of the member state.
My Lords, I do not know of a case that would point to the conclusion made by the Joint Committee. I fully accept that the argument is there to be made.
However, my real concern is with the interaction between public policy and the duties of public authorities. I illustrate my concern by reference to a Scottish case, the case of Napier against Scottish Ministers. It dealt with slopping-out in Scottish prisons. In Scotland, we were somewhat behind England and Wales in providing sanitary facilities in cells. That resulted in prisoners being doubled up in cells with no sanitary facilities and, in effect, during times of lock-up, being forced either to ring for release from the cell or, more often, to urinate or defecate in front of their cellmate.
The matter was raised by Mr Napier against Scottish Ministers based on alleged breaches of Articles 3 and 8 of the European Convention on Human Rights but also based on the common law of negligence—delict in Scotland, tort in England. In the course of that case in the Court of Session, the issue of £13 million, which it was said had been taken from the Prison Service budget, was raised. I should say that Mr Napier had been incarcerated in C Hall in Barlinnie in 2001. I do not think that he was a stranger to that establishment.
In any event, in paragraph 88 of its opinion, the court stated:
“Two particular facts demonstrate that the respondents could easily have installed integral sanitation in the cells in C Hall before 2001. The first of these was the decision of the respondents, made in December 1999, to claw £13 million back from the Scottish Prison Service budget. There was a well-established practice in Government of allowing departments to carry budget surpluses forward into subsequent years. These surpluses might build up over a number of years. The discretion always existed for these funds to be redirected to other areas within the responsibilities of that Ministry, or indeed for them to be redirected to other Ministries. The Minister of Justice later explained”—
I think that this was in an affidavit—
“what had happened in relation to the £13 million in these terms: ‘That £13 million has been spent on other priorities in the Justice Department, such as a drug enforcement agency, tackling domestic violence, and establishing a witness support scheme for all of Scotland's sheriff courts. These are proper priorities. Government is about making choices; those other choices that we have made.’ The decision was made not to use those available funds to solve the slopping out problem”.
It is true that £13 million was taken from the end-of-year flexibility of the Prison Service. The decision was taken by the then Minister for Justice, Jim Wallace. To be fair to him, he would say that he was not aware that the likely consequence would be a slowing-up of the refurbishment programme. I should also say that Mr Wallace is a decent, humane individual who feels strongly about conditions in prisons. He also feels strongly about drugs and the misery that they cause, domestic violence and the support that is given to witnesses. However, before we decide where we are going to apportion legal blame, where do we in the court of public opinion assign blame for what happened? We could blame the Minister, or we could blame the party—my own party, the Labour Party—that proposed a drugs enforcement agency. We could blame the electorate for having voted for it, or we could say simply that these were proper priorities that were being set by government. The point is that the decisions were being taken in the context of public resources and their assignment.
Much was made in Grand Committee of the report on Zahid Mubarek. Although I had heard about him, I had not looked at the report. I went away and did so. I cannot claim to have read it all, or to be familiar with all its terms, but a couple of things struck me as I went through it. The first was that the Prison Service has co-operated very fully with the inquiry and was praised for doing so. In passing, I wonder whether it would have done so had it been facing prosecution, but there we go.
Paragraph 40.11 of the report relates to Mr Clifford, the governor who came in in, I believe, March or April 1999, and says that,
“it would be wrong to judge Mr Clifford’s tenure at Feltham simply by results. The core problems – too few staff, too many prisoners, too little investment and a supposedly militant local branch of the POA – were problems which he inherited, and could not be changed overnight. So too was the forthcoming diversion of resources for the successful separation of Feltham A and Feltham B”.
In the report’s final conclusion, Mr Justice Keith said:
“There are many lessons to be learned from Feltham’s decline, but the most important is that population pressures and understaffing can combine to undermine the decency agenda and compromise the Prison Service’s ability to run prisons efficiently. When that happens, it is important for the Prison Service to tell ministers that, and they should listen very carefully to what the Prison Service has to say. The Prison Service will no doubt continue to strive to do the best it can with the resources it has. But if those resources are simply not enough, and the prison population continues to increase, ministers must find the extra money to enable the Prison Service to deliver a proper regime for the prisoners it is required to hold. If more resources are needed to ensure that our prisons are truly representative of the civilised society which we aspire to be, nothing less will do”.
I listened with great care to what the noble Lord, Lord Ramsbotham, said about this being not about resources but all about management. On the basis of the above remarks, I simply cannot agree. The management of Feltham, and indeed of other institutions, is always made in the context of public obligations and the resources that are available.
I would have a lot more sympathy with these amendments if, as a corollary to them, the Prison Service was entitled to charge the state a realistic price for keeping prisoners in custody, if it were to have a free hand to determine the level of security in which it kept individuals and could refuse to take a prisoner or a particular type of prisoner. That would put it on the same footing as the private sector, which is controlled by costs, while the public sector is controlled by a host of other factors including resources, investment, and the statutory and common law obligations that are imposed on the Prison Service and others.
In considering these amendments, we also have to look to ourselves. The prison population in England and Wales, and in Scotland, is far too high. We do not have the number of places to accommodate all prisoners in the kind of conditions in which we, in a decent society, would like to see them. We have to look to the number of laws that we pass and the kind of custodial sentences passed by the courts and to consider the amendments in that context. However, it is simply unfair, in my respectful submission, to pass the buck to a management that does not have the resources, the investment and everything else that is required. The great distinction between the sectors is that while the only control in the private sector is one of cost, in the public sector, there are other obligations.
My Lords, the noble Lord, Lord Ramsbotham, has set out a very powerful case. The amendment to bring deaths in police and prison custody within the ambit of the Corporate Manslaughter and Corporate Homicide Bill deserves strong support from your Lordships’ House. The amendments would not, of course, mean that all or most deaths in custody would result in a prosecution for corporate manslaughter. We are not talking about a blanket provision. That would apply only when, exceptionally, there had been a gross breach of a relevant duty of care. However, if that was the case, in those circumstances, a prosecution for corporate manslaughter should enable the courts to hold that serious management failures, a point rightly stressed by the noble Lord, Lord Ramsbotham, had occurred resulting in an individual’s death.
In their 2005 consultation paper, Corporate Manslaughter: The Government’s Draft Bill for Reform, the Government argued that deaths in custody should be exempted from the scope of the Bill on the grounds that,
“organisational failings in these areas are more appropriately matters for wider forms of public and democratic accountability”.
They argued that deaths in prisons are,
“subject to rigorous independent investigations through public inquests before juries and through independent reports capable of ranging widely over management issues and publishable post inquest”.
This is nonsense. There are still grieving parents who have no answer to how many vulnerable youngsters have died. I have taken up case after case in your Lordships’ House. I would simply recommend that people look at the case studies that have been produced by inquests to back up this statement.
However, the Independent Police Complaints Commission effectively answered that argument in its comments on the consultation paper. It stated:
“The consultation paper suggests that the reason for not applying corporate manslaughter to public functions is that this would conflict with existing accountability mechanisms”.
That point was repeatedly stressed by the noble and learned Lord, Lord Boyd. The IPCC continued:
“In fact, it would complement them. All deaths following police contact have to be referred to the IPCC, and some of these will be independently investigated. If the evidence from such an investigation showed the most appropriate way forward was a corporate manslaughter prosecution, it would cause serious public concerns about the effectiveness of public accountability if this was not an option”.
The commission pointed out that at present, in a case of serious systematic failure resulting in death,
“there could be a disproportionality whereby a death occurs and the only sanctions available are minor disciplinary sanctions against individual officers”.
This is a wholly unsatisfactory position, which the amendments would remedy.
Unless these amendments are passed, a private company running a business could be liable to a charge of corporate manslaughter, but a public service charged with the care of particularly vulnerable people behind locked doors and high walls would not. This is an indefensible situation—indeed, because of the particularly vulnerable position of prisoners, we should take special care to protect their lives. Even more indefensibly, a private company running a prison would not be liable to prosecution for corporate manslaughter, although a private company running any other kind of business would be liable to such a charge.
The House of Commons Home Affairs Committee and the Work and Pensions Committee concluded in their joint report on the draft corporate manslaughter Bill that,
“there is no principled justification for excluding deaths in prisons or policy custody from the ambit of the offence … where deaths in prisons and policy custody occur, they should be properly investigated and the relevant bodies held accountable before the courts where appropriate for an offence of corporate manslaughter”.
Perhaps I may remind the Minister of the analogy with previous race relations legislation whereby functions of criminal justice agencies, and police and immigration officers, were excluded. It took the death of Stephen Lawrence and a proper inquiry to make the Government pass the Race Relations (Amendment) Act, which brought these agencies within the jurisdiction of that legislation. Let us not make a similar mistake.
My Lords, I support the amendment. I shall be brief because all the points that I would have wished to make have already been made. It is said that one litmus test of any society is the way in which it treats those which it holds in custody. As I understand it, in any civilised society, “custody” applies to anyone who is detained by any servant of the Crown. I speak as a police officer for more than 30 years. I see no reason whatever to exclude the police from the effects of this Bill. We can be proud of the police service in this country, but that is not to say that mistakes do not happen from time to time or that at times; rare though it may be, things go wrong.
So why create doubt in the minds of those within the services and among those who look inwards at it? I believe that if we were to support this amendment it would send all the right signals internally and externally. Indeed, to exclude it would send, quite obviously, all the wrong signals. I said that I would be brief, but the point needs to be made that I support the amendment that has been so fully and expertly put to this House by the noble Lord, Lord Ramsbotham.
My Lords, I regret that I was unable to be in your Lordships’ House at Second Reading, for which I apologise. The death of the wife of a close friend had to take precedence over my attendance. However, I wish briefly to make a couple of points about deaths in custody. On reading the Official Report of the Second Reading and the Committee stage, if one did not know better, one could be forgiven for thinking that a death in police custody would not be investigated thoroughly, nor would there be any recommendations for action to be taken either in the criminal court or under police discipline regulations. That is not so.
In Committee, the noble Lord, Lord Bassam, rightly pointed out that police are not and must not be above the law. I certainly agree, and I would wager that every police officer in the country would agree that the police are not above the law. Indeed, that reflects a comment of the late Lord Denning. I cannot remember the exact words and I do not attempt to imitate his lovely Hampshire accent, but he said something like:
“Be they ever so great, they are not above the law”.
I am sure that the noble and learned Lord will correct me if I am wrong in that, but Lord Denning said it and we believe it.
Should there be a death in police custody, it is immediately reported not only to the coroner but also to the Independent Police Complaints Commission. The commission ensures that a thorough and independent investigation is carried out and may well recommend that someone it deems responsible for the death should stand before a court of law. If there are side issues of discipline, not infrequently it will recommend that a disciplinary charge be brought. Having been the president of a number of disciplinary hearings, I can assure noble Lords that they do not hand out minor punishments. Dismissal from the service or a requirement to resign immediately is not uncommon if there have been grave breaches of discipline. My fear is that this amendment may well make the police risk-averse and that the Act will have the opposite effect to that intended. If the amendment is passed, more deaths will be caused rather than fewer.
I understand fully the sentiments behind the amendment and I can see how they must apply, certainly in the testimony of the noble Lord, Lord Ramsbotham, on the case of Mubarek, the young detainee in Feltham young offenders’ institution. That would have persuaded me that the Bill should go through with this amendment, but there are so many risks attendant on it. Any death in police custody is properly investigated, and officers may stand before a criminal court. I do not think that the amendment is necessary, and I fear that it will make the police risk-averse.
Let me give a brief example of risk-averseness. On 22 December 1974, a long time ago now, a bomb was thrown through the window of 17 Wilton Street here in Westminster. It was then the home of Edward Heath. A marked police car was patrolling nearby, but the officers in that car did not know about the bomb. They saw a Ford Cortina motor car with a driver and two passengers acting suspiciously by driving through red traffic lights and the passengers looking about them. When they apparently noticed the police car, the Cortina picked up speed. The police car did the same because the officers suspected that the car had been stolen or was being used in a crime. However, because a force order had been issued to the effect that high-speed chases were not to be indulged in without permission of the then chief inspector in the police control room, the officers did not want to cause any danger to other people or to themselves, or to lose their jobs if they disobeyed that order, so they abandoned the chase.
A year later, when three suspects who had given themselves up in the Balcombe Street siege were being interrogated, one of them, when asked what happened that day, said to me—I was on the investigation at the time—“We were chased”. The question was put to him, “What did you do?”. He said, “We went round the corner and abandoned the car”. One year later, five other people had died. The suspects were charged with the deaths of Ross McWhirter, Allan Quartermaine and a Dutch female travel courier, and with the maiming of many hundreds of other people. They were found guilty and sentenced. If only those officers had not been risk-averse, they may well have prevented a number of deaths and serious injuries. We should consider that.
During the previous stages of the Bill, the words “common sense” and “balanced” have been used. I ask us all to think carefully about a balanced approach to this issue. As it stands, the Bill will serve a very useful purpose, and will fill a lacuna in the law. I lost a valued colleague on the “Herald of Free Enterprise”. Having previously been a passenger on that ship myself, I can imagine the absolute horror and terror of those men, women and children as the boat turned over simply because the doors had not been closed. The “Piper Alpha” disaster, the death of Mubarek, the death of Sergeant Roberts in Iraq—one can see that this Bill might well cover all those cases, and indeed should. I fear that with the amendment, as I have already said, police will become too risk-averse. However, your Lordships could resolve another pressing problem by voting for the amendment; it would help reduce prison overcrowding. I think the clause should stand as it is.
My Lords, I had not intended to intervene in this debate, and so far have not done so in the course of the Bill, but the speech of my compatriot, the noble and learned Lord, Lord Boyd of Duncansby, prompts me to reflect briefly on some of the things he said, which certainly rang no bells with me. First, he said he had a conceptual difficulty with understanding how the public service could prosecute itself. He was answered inferentially by the noble Lord, Lord Imbert, who pointed out that in the event of a death being caused, it being apprehended that there was blame and an inquiry being held, it was perfectly possible to prosecute the police. The only question is whether that can be done by other, more ordered means than a prosecution that follows the exercise of executive discretion by the Home Secretary, or someone who has a clear political interest in the body for which he is nominally responsible.
The consideration that flows from that, however, is that, in my experience of more than 40 years in two Houses of Parliament, the wider remedy of a parliamentary inquiry into the circumstances of a particular case of death in custody will not give anyone a secure sense that the victims of gross mismanagement are in safe hands, so long as what is popularly called the “High Court” of Parliament exists. That has not been our experience as the years have gone by.
The second question arising from the noble and learned Lord’s speech—which I was surprised to hear, because I greatly admire him—was his reflection on the issue of Article 2 of the European Convention on Human Rights. He appeared to be casting doubt on the judgment of the Joint Committee of the two Houses of Parliament that Article 2 was at risk of being offended. He appeared also to be saying that he would prefer to wait until there was a judgment in the European Court of Human Rights making it clear beyond peradventure that this was the case. I am bound to say that I would prefer to rest my judgment on the apprehensions of our eminent committee.
Finally, when the noble and learned Lord went into his account of the Napier case in Scotland and talked about “slopping out”, it seemed to me that he had lost the plot. We are not talking here about mismanagement resulting in indignity to individual prisoners; we are talking about the loss of life, the right to life and standards that ought to be held in high regard by our public servants. Thank goodness that in this debate we have heard from policemen and others that those considerations can be sustained by the application to the public services, as to others, of the rule of law.
My Lords, I declare an interest as a partner in a national commercial firm of solicitors, Beachcroft LLP, and as president of the All-Party Group on Occupation Health and Safety.
I thank the noble Lord, Lord Ramsbotham, for his introduction. The clarity and passion with which he opened this debate were of the highest order. He has set an entirely appropriate tone, according the debate the gravitas it merits. I believe we are debating the most important possible set of amendments to the Bill; they cut right to the heart of the Bill’s appropriateness and viability, both as a functional piece of legislation and as a historic legal landmark, the end result of many years of preparation, debate and redrafting. As many of the speakers have pointed out, the essential question before us is whether or not the Prison Service and other public bodies detaining individuals in custody owe a clearly defined, legally enforceable corporate duty of care to those individuals. My response is: of course they do. They must; it is a duty of the highest order. Rather like the noble Lord, Lord Judd, I find it incredible that this Government could or would say otherwise.
Those are the fundamental principles at the core of this debate about extending the Bill to deaths in custody. I do not think I need go into the arguments the Government have adduced, as they have already been prefaced by a number of speakers. I await with great interest to see whether the noble and learned Lord the Attorney-General will go back to those old arguments or accede to what is clearly an overwhelming majority, in all parts of the House, that would like to see a more positive response from the Government.
The noble Lord, Lord Dholakia, pointed out some case studies. Ten unlawful-killing verdicts have been returned by inquest juries. The Government say that that is an appropriate means of accountability; rather, they add a formidable impetus to the creation of a corporate offence of manslaughter.
The Government have pointed to public inquiries as a method of accountability. Yet as the noble Lord, Lord Ramsbotham, said, they have consistently and resolutely refused to hold inquiries into the deaths in custody of Zahid Mubarek and Joseph Scholes and have resisted the attempts of both families to have a public inquiry held in the civil courts. I have been around long enough to know that there is a pattern to this. Parties in opposition tend to call for public inquiries, while parties in government regard them as an expensive and unnecessary nuisance—and so the wheel turns. But I hope that noble Lords appreciate that this debate has not been about partisan politics. As the noble Lord, Lord Clinton-Davis, reminded us, it is really about justice. The poverty of the substantive argument against extending the offence is again obvious when one hears reference to cost. As the noble Lord, Lord Dholakia, pointed out, we are dealing with a gross breach. The families of those who die in custody as a result of the grossly negligent behaviour of a public service do not seek financial compensation but want a legal acknowledgement of injustice and a well-founded hope that responsibility has been accepted and lessons learnt. The refusal of Ministers to countenance applying these principles to deaths in custody will, I am afraid, reinforce perceptions of a Government fearful of exposing their own activities to the same level of scrutiny they seek to apply to others. Where is the substance of the Government’s commitment to the rule of law? Physician, heal thyself.
I also hope that Ministers will not respond frivolously by quibbling about the amendment’s wording. They now have to face up to the essential, fundamental point of principle which is at stake. Third Reading still lies ahead, with all the attendant possibilities of getting the details right. I want the Government to be brave and look the big questions of life, death and justice fully in the eye. There can be no greater responsibility than the power to deprive an individual of his or her liberty. If that power is exercised by the state so negligently that it deprives its own citizens of life, then accountability should be clear, transparent and clearly effective on a case-by-case basis. For deaths in custody, this law is an obvious vehicle.
I have one more example. A case where inappropriate restraint techniques, principally those intended for restraining adults, are used in the restraint of juveniles in custody, with fatal consequences, would be a perfect illustration of a corporate offence. The idea that it would be adequately dealt with by voters at the next election is at once laughable and tragic, truly an insult to our intelligence. I should add, in view of the speeches of the noble Lords, Lord Imbert and Lord Dear, that the amendments are in no way inimical towards the police or the Prison Service, and they should not be perceived in that way—on the contrary. I do not agree with the noble and learned Lord, Lord Boyd of Duncansby, who until very recently had been Lord Advocate for six years. I understand where he is coming from, but it is not just a question of the state prosecuting the state. The noble Lord, Lord Maclennan of Rogart, has already answered that point.
I simply say this, particularly to the noble Lord, Lord Imbert: if the amendment is accepted by this House today, as I fervently hope it will be, staff in all those services will be able to hold their head up high. They will be able to demonstrate that they do not need any special treatment, they have nothing to hide, they are willing to be judged by the highest standards and are subject to the same disciplines as the rest of us. They are not above the law, as the noble Lord said.
If the message goes out from this place that the services need special dispensation and protection, it would do a great deal of damage to their reputation. We are talking about highly trained and professional people, and it is patronising and indefensible to suggest that they, of all people, must be clad in immunity, particularly when the Bill sets the bar for prosecutions so very high.
The choice before us today is clear: the noble Lord, Lord Ramsbotham, has outlined with great and devastating clarity the reasons for applying this offence to deaths in custody. As the noble Lord, Lord Judd, and my noble friend Lord Campbell of Alloway have said, failure to do so poses a potential contravention of Article 2. We must listen to our colleagues in that respect.
I urge other noble Lords to support the amendments. I do not want to tempt fate, but there has been a remarkable lack of support for the Government from their own Benches, apart from the noble and learned Lord, Lord Boyd of Duncansby. I detect the emergence, across the House and beyond it, of a consensus in support of the amendments. I would call it a consensus of the fair-minded that I encourage Ministers to join, even at this 11th hour. I hope that the noble and learned Lord the Attorney-General will be able to take some lessons from this debate and give the legislation the teeth it needs, opening up the Government to the application of this new offence, which is of their own making. Only by demonstrating that the Government fully accept their own responsibility, as custodian of those who have been deprived of their liberty, will Ministers create legislation of lasting value and credibility.
My Lords, I recognise the strength of feeling that has been expressed with complete sincerity by all those who have spoken, and I thank them. There was a lengthy debate on this in Committee and there has been a lengthy debate today on Report. I do not want to detain the House too long from doing what it plainly wants to do, if I detect its mood correctly, and expressing its view.
I agree with the noble Lord, Lord Hunt, that there is an issue of principle here. I should like to summarise the Government’s position. Ultimately, the issue of principle will come down to what position the other place—it has significantly supported the Bill and has not taken the view that the extension that the amendment of the noble Lord, Lord Ramsbotham, seeks should be included—will take. We will not know that unless and until it has another opportunity to consider this.
Before proceeding to a Division, which I think is inevitable, I should like to correct one or two misapprehensions. I do, with respect—I mean that; it is not a lawyer’s “with respect”, because I really respect the way the noble Lord, Lord Ramsbotham, put his point of view—believe that the arguments advanced by the Government to date and today have been dismissed too readily. I illustrate that by recognising that the debate is important and complex and that two very senior ex-police officers—the noble Lord, Lord Dear, from the West Midlands, and the noble Lord, Lord Imbert, former Commissioner of the Metropolitan Police—take different views on the amendment. Neither takes the view that the police should be above the law—nor do I or the Government, who do not believe that any should be above the law—but they take a different view about the validity, merits and justification of extending this particular offence in particular circumstances. It is not, with respect to the noble Lord, Lord Hunt, a question about whether it is accepted or rejected that a duty of care is owed by the state—by the Home Office, for that matter—to those who are in custody. Plainly, such a duty exists. The question is whether corporate responsibility in a criminal sense should be imposed on the Home Office or the police, and whether they should be in the dock on a criminal offence.
Nor is it a question of whether others should be subject to the law. The noble Lord, Lord Hunt, said that these individuals—the police, prison officers—do not expect to be told that they have to be protected specially by the law. Nobody is talking about that. They are subject to the law and if the responsibility for a death could be put at the door of an individual, that individual will find himself or herself prosecuted.
Nor is it a question of whether the Government take a different view on the importance of their responsibility towards those in custody or the tragedy or worse of those who die in custody. I certainly do not. One step that I took soon after taking this job was to personally review the cases of deaths in custody where prosecutions had not taken place to see what improvements could be made. But there is a real question of principle about whether corporate criminal responsibility should extend in particular ways.
My first point illustrates that, as the Bill stands, cases of deaths in custody as a whole are not outside its ambit. They are not. The Bill is clear that the responsibilities as occupiers of premises and to employees are relevant duties of care, and they are only excluded to the extent that there is a decision as to matters of public policy under Clause 3(1). Under Clause 3(2):
“Any … duty owed in respect of things done in the exercise of an exclusively public function is not a ‘relevant duty of care’ unless it falls within”,
those duties of occupiers or employers. What does that mean? I do not for a moment suggest that it means that some of the cases of deaths in custody that noble Lords have in mind would be covered, but others would be. For example, the offence will apply where deaths have arisen as a result of failure to have adequate fire precautions or to maintain cells in adequate conditions, of poor hygiene in workshops, or of failures in medical treatment. Those do not fall outside the Bill. I do not want to pretend that the issues in relation to restraint referred to by the noble Lord, Lord Hunt, and decisions about cell-sharing, police custody or arrest techniques or other areas that flow from public policy decisions would be included.
My second point—
My Lords, I hesitate to interrupt my noble and learned friend when he is moving on to his next point, but am I to understand therefore that his position is that, for matters to do with a systemic failure, the police are above the law? I have grave doubts about whether it is in the interests of the police service as a whole for there to be that appearance of being above the law—not when it is about the failure of an individual, but where there is a failure of the systems which have been instituted by that organisation.
My Lords, I am certainly not saying that anybody is above the law. I am describing the effect of the Bill in terms of criminal corporate responsibility—in what circumstances the Bill will impose it and in what circumstances it will not.
My second point concerns the other mechanisms that are available. They have been described in some detail. They exist in a way for public bodies but not private bodies. I will not go through them in detail again because they have been raised on previous occasions; certainly some are important. The Government have made strides towards strengthening the protection of prisoners, including strengthened external investigation of prisons through the Prisons and Probation Ombudsman, the creation of a forum for the sharing of lessons throughout Whitehall, and the establishment of successive suicide prevention programmes. The Chief Inspector of Prisons recognised the improvement of safety in custody in recent reports and I note, as she did, the continuing fall in the number of self-inflicted deaths in prisons, which must reflect the considerable efforts that have been made. All deaths in custody are subject to independent investigation by the Prisons and Probation Ombudsman and, so far as the police are concerned, by the Independent Police Complaints Commission, as the noble Lord, Lord Imbert, said.
My third point relates to the ECHR. I always respect the views of the Joint Committee—indeed, I was one of its inaugural members—but it does not necessarily have invincibility in its views. The key point to draw attention to in relation to the Joint Committee’s report is what it seeks to draw from a Turkish case, Öneryildiz v Turkey. I think that that was the case that the noble Lord, Lord Judd, had in mind. That case establishes for the first time that there may be circumstances in which the existence of criminal responsibility may be necessary to meet the Article 2 requirement. In my reading of that case, it does not say that it has to extend to an offence of corporate responsibility. I accept that we may need to have the availability of criminal responsibility for individuals, but to go beyond that remains, in the Government’s view, not shown in accordance with the legislation.
I have one other observation on the Joint Committee’s report. It recognised that the,
“courts should only have a very limited role in decisions about the allocation of public resources”.
The report went on to say that,
“this reason cannot justify a sweeping exclusion from the new criminal offence of any decision taken by a public body in the performance of a public function”.
That is not what the Bill said, because the Bill keeps intact these responsibilities as an occupier or as an employer.
I come finally to the issue of principle. Is there a justification for keeping public policy decisions separate from the jury at the Old Bailey? The view that the Government have taken is that such public policy decisions are ultimately not really appropriate for a criminal court to determine. They are appropriate for Parliament to consider and, from time to time, for public inquiries to consider. A view can appropriately be taken by the electorate, but decisions about whether resources should be applied to education, health or prisons are difficult policy decisions which, in the Government’s view, should not be determined by the courts. That is ultimately the point of principle which lies behind this amendment. Would amending the Bill in this way improve safety in prisons and in custody? Views differ on that issue. The noble Lord, Lord Imbert points to—
My Lords, I will give way to the noble Viscount after I have made this point. The noble Lord, Lord Imbert, points to the risk of people becoming risk-averse and applying resources in a particular way rather than other ways. Others take a different view.
My Lords, I should like to have another try at getting an answer to the question put a moment ago about systemic failure. The noble Lord, Lord Hunt, talked about improper restraint that is suitable for adults being used on young persons. As I understand it, if the Prison Service or the police service has given clear instructions about when it is appropriate to use such restraint and a warder or prison officer wilfully disregards those, he can and will be prosecuted for manslaughter. When the Prison Service or a police force has incompetently and wilfully failed to issue that guidance to its staff, why should those individuals and the body in question be immune from prosecution?
My Lords, in lifting immunity for the first time in certain circumstances to submit the Crown to criminal responsibility in these areas, the Government have sought to keep on one side one category of decision-making, which is exclusively in the public policy area, while recognising a government responsibility in the rest. I entirely understand that one wonders whether certain examples should be on one side rather than the other, but that is the ring-fence which this Bill seeks to achieve.
My Lords, I can sum up my question in few words. Although the noble and learned Lord rejects liability in the cases that have been put by the noble Viscount, if a brick falls off the prison which has been grossly negligently maintained, he says that there is liability under this Bill. It is such an extraordinary line that I hope that the noble and learned Lord will be prepared to take the amendments away and think about them.
My Lords, I do not think that option is being offered to me although I thank the noble Lord for his helpful intervention.
As I sought to draw to noble Lords’ attention in my first point, the issue is the duty owed by a public authority in respect of a decision on matters of public policy. Whether you allow a brick to fall off a prison is not a matter of public policy. I believe that the noble and learned Lord, Lord Lyell of Markyate, made a not dissimilar point.
It is plain that your Lordships wish to express the opinion of the House. That is entirely within your Lordships’ rights. We shall see what the result is. I thank the noble Lord, Lord Clinton-Davis, for inviting me to consider the matter further but it is not within my mandate.
My Lords, I thank all those who spoke about these amendments so powerfully and wisely. I am particularly glad that my noble and learned friend Lord Boyd and my noble friend Lord Imbert raised an opposite view to what has been expressed. Up till now that view has not been expressed at either Second Reading or in Committee. It is only right that it should be expressed. Anyone reading this debate is entitled to expect the broadest cover of all the many issues raised.
I do not wish to single out anyone in particular because I have been enormously impressed by all the speeches, but it would be improper of me not to thank the noble Lord, Lord Hunt, not only for his powerful remarks but for all that he has done to ensure that various briefings were provided in addition to those provided by the Government. It is a huge help to people who do not understand many of these issues to have them explained with such wisdom, clarity and good humour.
As noble Lords said, this is rightly an issue of principle and of great seriousness. As the noble Lord, Lord Dholakia, pointed out, none of us has suggested that every death in custody should automatically be followed by a charge under this Bill. Charges should follow gross breaches of management and the duty of care.
I was very grateful to the noble and learned Lord the Attorney-General for the way in which he covered various points, but I was disappointed that finally he returned to whether this amounted to questioning policy. This is not about policy; it is about good management. Good management does not depend on resources but rather on the whole ethos, structure and direction of management. That is what this is all about. That is what is contained in the Bill. Therefore, as the noble and learned Lord predicted, I wish to test the opinion of the House.
4: Clause 2 , page 2, line 34, at end insert—
“(e) a duty owed to members of the public who may be affected by the way in which the persons referred to in paragraph (a) perform their duties;”
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 9, 10, 12 and 20. The amendments extend the duty of care owed by public authorities, thereby ensuring that the offence would apply in a situation where the actions of a public body, even in the carrying-out of exclusively public functions, had been so grossly negligent as to cause the death of a member of the public.
I do not think that it is necessary for me to repeat the arguments that I made in Committee to the Minister, the noble Lord, Lord Bassam. The merit and the virtue in the amendments are clear. As JUSTICE said so clearly in its briefing:
“To create such an exception”—
that is the exception exempting public bodies and public functions from the offence—
“is to state that in those circumstances gross negligence causing death on the part of a corporation is lawful under the criminal law”.
The exemption of public bodies could amount to a breach of Article 2 of the European Convention on Human Rights and Article 13 concerning the obligation to provide an adequate and effective remedy in respect of breaches of the right to life, to which my noble friend Lord Hunt referred in the debate on Amendment No. 3.
I made it clear in Committee that I was deeply unsatisfied with the response that I got from the noble Lord, Lord Bassam, and his defence of the Government’s position. His primary point seemed to be that the Government had already made great inroads in rolling back Crown immunity, but then he rather hoisted himself with his own petard by saying that,
“as few of these organisations have Crown immunity as the law stands, they are already liable to … gross negligence manslaughter”.
The current exclusions from Crown immunity do not so much constitute a comprehensive provision for the application of the offence to public bodies, as the Minister claimed in Committee, as simply restate in the Bill what should already exist in law.
I am disappointed that the Government have not taken these amendments on board, even though they have recognised that establishing a duty of care towards the public is in the public interest. Again, I quote what the noble Lord said in Committee:
“The Government recognise the strong public interest in ensuring that government departments and other Crown bodies are clearly and openly accountable for management failings on their part”.—[Official Report, 11/1/07; cols. GC 120-21.]
The simple fact is that public authorities should set an example and be prepared to be accountable for that example. Where a public authority cannot even act within the wide parameters set out by the Bill, where its actions fall far beneath what can be expected of it, it is right that the families of victims of its negligence should be entitled to prosecute those responsible. I beg to move.
My Lords, first, I want to clarify how the Bill will operate. Having looked at what has been said before on this amendment and, to some extent, having listened to what the noble Lord has just said, I think that there may be a misunderstanding. As the Bill stands, the offence is not limited, in its application to public authorities, to employer and occupier duties. It is important to emphasise that the relevant exclusion here is Clause 3(2), which states:
“Any duty of care owed in respect of things done in the exercise of an exclusively public function”,
unless it is an employer or occupier liability issue.
What does “exclusively public function” mean? It does not mean whenever a public body is operating. That is not how the term is defined. It is defined in the Bill as,
“a function that falls within the prerogative of the Crown or is … exercisable only with authority conferred”,
by that prerogative or by or under a statutory provision. That certainly does not mean a public authority acting just with statutory powers; it refers to things that can be exercised only with statutory powers.
Let us take education as an example. Education is not an exclusively public function, even though it is carried out by many public authorities. Healthcare is not an exclusively public function, although it is carried out by many public authorities. Those things can be carried out by private bodies without statutory backing or in the exercise of the prerogative, so the exclusion would not apply in those cases. Members of the public who, sadly, suffer as a result of a public body carrying on that sort of activity would not be excluded from the protection of the Bill. The exemption is limited to cases where it is an exclusively public function. We discussed one such function in relation to the previous amendment: the holding of people in custody can be done only by virtue of statutory authority; it cannot be done otherwise. Carrying on military action can be carried out only either under the prerogative or by statutory authority. Those are the limits.
When public bodies carry on general commercial activities, for example, or activities such as healthcare or education, then, so long as a duty of care exists—I hope that no one is talking about trying to extend the existing duty of care as it stands in the law of negligence—the Bill as it stands will cover that. That is a very important difference compared with how the Bill has been seen. I give way to the noble and learned Lord.
My Lords, I am most grateful to the noble and learned Lord. I think that we are looking at the interrelationship between paragraphs (a), (b) and (c) of Clause 2(1) and Clause 3(2). Is the noble and learned Lord telling the House that, if a public authority is doing something in connection with the supply by the organisation of goods or services, the carrying on of construction or maintenance, the organisation of any activity on a commercial basis, or the keeping or organisation of any plant, vehicle or other thing, it is liable in respect of all those matters?
My Lords, yes it is. Clause 3(2) would exclude it only if what it was doing was done in the exercise of an exclusively public function, defined as,
“a function that falls within the prerogative of the Crown or is … exercisable only with authority conferred … by the exercise of that prerogative, or … by or under a statutory provision”.
To be entirely accurate—it is important to be so—the exclusion is also in Clause 3(1), which relates to a,
“duty of care owed … in respect of a decision as to matters of public policy”.
But the provision of goods or services, construction or maintenance operations, the carrying on of any other activity on a commercial basis, or the keeping of plant or vehicles and so on, or is not carried out in respect of a decision as to matters of public policy. So I believe—I am fortified by nods from the Box—that I am right in having answered the noble and learned Lord’s question in the way that I have.
My Lords, I believe that, in any event, soldiers would be employees covered by Clause 2(1)(a). I am not sure whether there is anything about the relationship of soldiers to the Army—we have one or two Members of the House who would have been able to tell us. Subject to that point, duties to employees would be covered. Even if it is the exercise of an exclusively public function, because it falls within Clause 2(1)(a) or (b), it would be covered.
My Lords, the noble and learned Lord did not convince me and I suspect he did not convince himself. I imagine that at the top of the notes, which have been prepared to assist him in taking the Bill through, there is that little word “resist” which we all remember. That is what he wants to do. In some of what he said I had the impression that if that were the case, there is no reason why he could not accept my amendment. I do not think he has answered the points we have made or the points made by my noble and learned friend Lord Lyell, to whom I am very grateful for his intervention. The best thing is to test the opinion of the House.
My Lords, I was part way through what I was saying when I answered the questions from the noble and learned Lord, Lord Lyell. I thought that the noble Lord, Lord Henley, was speaking to that point and he has assumed that I had completed what I wanted to say.
I am most certainly resisting the amendment. I was trying to point out that the basis on which the noble Lord was putting his amendment is fallacious. It is simply wrong because it does not take account of what the Bill says. Nor does it take account of the fact that what he seems to be proposing is that the Bill should extend the duties to members of the public that already exist in the law of negligence. Notably missing from what the noble Lord said was a single example of a case where he believes that the duty should be extended—where he believes that the Bill should be extended—which is not covered by the Bill at the moment. With great respect to the noble Lord, surely it is important to put that forward. The noble and learned Lord asked me about soldiers on Salisbury Plain. I have answered him and said that that is covered. What example can the noble Lord, Lord Henley, put forward that is not covered?
My Lords, I hope I am not out of order but I do not believe the noble and learned Lord answered me. He parried my thrust by saying that the soldiers would be covered because they are employees or perhaps because they lived in barracks and were covered by occupiers’ liability. Suppose a member of the public is killed as a result of some gross negligence in the supply of goods or the carrying on of any construction or any other activity; the noble and learned Lord was using as part of his argument the fact that the Bill is not as restricted as we thought, and that somehow, under paragraph (c)(i), (ii), (iii) and (iv), the Government are accepting much more liability than most of us thought. He has asked for some examples from the Opposition, but can he give some examples of the kind of circumstances in which public authorities are liable under paragraph (c)(i), (ii), (iii) and (iv) but are not under paragraphs (a) or (b)?
My Lords, I do not like to intervene in this way, but this is Report stage. Members should make only minor points of elucidation when asking a Minister a question. The noble and learned Lord the Attorney-General has been extremely generous in his responses. I ask the House to respect the usual conventions.
My Lords, I have every intention of respecting the usual conventions. I had thought that the noble and learned Lord had sat down, as he had. I was brought up to believe that once the Minister has spoken, it is time for the mover of the amendment to say a few words and tell the House what he intends to do. I have done that and I do it yet again. I wish to test the opinion of the House.
5: Clause 2, page 3, line 18, at end insert—
““custody” includes being held in prison, secure mental healthcare facilities, secure children’s homes, secure training centres, immigration removal centres, court cells and police cells, and being subject to supervision by court, prisoner and detainee escort services;”
On Question, amendment agreed to.
6: Clause 2, page 3, leave out lines 32 to 34
On Question, amendment agreed to.
7: After Clause 2, insert the following new Clause—
“Offence by member of senior management
(1) A member of senior management, responsible under section 1(3), shall be guilty of an offence if by his acts or omissions which amount to a gross breach of his duty, he contributes to a breach under section 1.
(2) A person guilty of an offence under this section is liable on conviction to—
(a) imprisonment for a term deemed appropriate by the court, or (b) a fine not exceeding the statutory maximum, or to both.”
The noble Baroness said: My Lords, I declare my interest as a former trade union official; my union is Amicus and I am a former member of the TUC general council.
As I explained in Grand Committee, the unions support the Bill and want to see it on the statute book but do not think that it goes far enough. Unless there are amendments, they do not think that it will be effective in improving health and safety at work. The briefing paper I received from the TUC makes the strong point that organisations do not kill people, but the action or inaction of people within them does. Directors and senior managers should be held to account for their actions or omissions. Nothing in the Bill would lead to the people making a decision resulting in a death being held liable. Both my union and the TUC believe that unless the Bill is amended to provide for individual responsibility and appropriate penalties there will be no changes in company culture to ensure that these accidents do not take place in future.
We had a good debate on this in Grand Committee, but I and my noble friends who supported me failed to get the Government to agree with us. We therefore said we would reconsider and have now done so, and come back with a slightly different wording based on the same concept. Since Grand Committee, however, it has become clear that the issue arouses a great deal of concern. My own union, Amicus, in its current journal, has expressed its disappointment that there has so far been a failure to allow for the imprisonment or heavy fines of individuals and companies found guilty of gross negligence leading to the death of employees. The article includes a photo of the gravestone of a union member said to have died tragically, a victim of corporate killing. The general secretary says that Amicus will continue to campaign for a change in legislation.
In the week following Grand Committee, an article appeared in the Times law section about the Baker report into the BP fire in Texas, in which 15 people were killed in 2005. It is headed:
“Will managers ever accept blame?”,
“At the heart of the problem…is that our society (and we probably mean Anglo-Saxon societies here) continues to shy away from making individuals accountable for corporate failure”.
The article quotes a lawyer, who says:
“The Enron case illustrates that if a senior executive is guilty of fraud then he faces a long term of imprisonment. But if his or her conduct leads to death then there is nothing more than a company fine”.
That was my point during the argument for my amendment in Grand Committee. The article further says:
“Many hopes had been invested in the creation of a crime of corporate manslaughter”,
but that the Bill,
“still does nothing much more than impose fines on the business”.
Another comment quoted in the article from a lawyer who has been actively involved in the area is that:
“Personal liability would focus the minds of directors and ensure that they placed the health and safety of workers and the public at the very top of their … agendas. That way, we might see a reduction in tragic but avoidable accidents”.
The article concludes,
“until that happens don’t hold out hopes for real change too soon”,
yet the Bill presents an opportunity for real change.
I urge the Minister to reconsider. The issue will not go away. Campaigns will continue; families who have lost members are already campaigning for changes in the law. We cannot wait until another disastrous industrial accident increases public pressure, as it surely will. We have the opportunity, with this Bill, to do something now. I urge my noble friend to take it. I beg to move.
My Lords, I support my noble friend on this amendment because it goes to the heart of the Bill. I must declare my interest in the union movement: I am a member of Amicus and the ex-president of two unions that are now part of Amicus, the ASTMS and MSF. In welcoming the Bill, we feel that it does not go far enough because as long as no one in a company is responsible, this problem will continue. My noble friend referred to the Baker report on the deaths that occurred in BP’s plant in the United States. BP’s aspirations include no accidents and no harm to people but, among many other things, the Baker report stated that:
“BP does not have a designated high-ranking leader for process safety dedicated to its refining business”.
That makes the case we are making very clear. Unless somebody is responsible and will have to face up to the consequences, these accidents will continue. Priority must be given to health and safety at high level, at boardroom level, and someone must be responsible for it. I believe that, my union believes that and, as my noble friend said, so do all those whose husbands, wives or other relatives have been subject to these disasters in large companies. I want to emphasise that the problem is with large companies. With small companies, it is easy to prove that somebody is liable. I hope that the amendment requiring companies to accept that somebody must be responsible at boardroom level will be accepted.
My Lords, I hope that the Government will not accept this amendment. We on these Benches cannot offer it any support. As we have made clear on a number of occasions, we support the general principle behind the Bill, which is the establishment of a corporate manslaughter offence, but to take it further and add layers to the existing offence of manslaughter would undermine the central principle of the Bill. For that reason, we hope that the Government will reject this amendment.
My Lords, I am grateful to the noble Baroness, Lady Turner, and the noble Lord, Lord Hoyle, for their enthusiasm for this amendment, even if I do not entirely agree with their thinking and the logic behind it. The amendment raises an issue that goes to the heart of the debate on the Bill. The question of whether the new offence should impose liability on individuals as well as on corporate bodies has been central in debates on the Bill. Noble Lords will know well that the Government’s position is that the offence should focus on corporate not individual liability, which means creating a new offence applicable to organisations and excluding secondary liability for the new offence on the part of individuals.
The case for making provision in the Bill for individual liability is fundamentally based on two arguments: first, that an individual must be held to account when there has been a death; and, secondly, that individual liability is needed to drive home the responsibility of senior managers, a point forcefully made by the noble Lord, Lord Hoyle. These are weighty arguments but, in summary, the Government do not believe that individual criminal liability can always be established, and consider that the question of director responsibility goes wider than the imposition of criminal offences. Therefore, I am not able to offer much comfort to the noble Baroness, Lady Turner, or the noble Lord, Lord Hoyle. However, I owe it to them to set out our thinking in more detail.
The genesis of the Bill lies in the difficulty the law has in establishing an effective form of accountability for manslaughter for corporate bodies. The controlling mind test in the existing law has worked in a small number of prosecutions of small companies, but it has not proved to be a successful basis for prosecuting more complex organisations where failures in the chain of management can rarely be laid at the door of specific individuals.
That is the problem the Bill seeks to address, and is why the Bill shifts the focus away from individuals and bases liability on gross failures in the management of systems and processes within an organisation. In the future, juries will be able to consider the overall picture of how an organisation’s activities were managed or organised, instead of having to focus on the actions of a single individual. That offers scope for a wider and more effective basis for holding organisations to account for failures in the way they were managed.
Having recognised that complex organisations cannot be convicted solely on the basis of the acts and omissions of senior managers, we think it is problematic to try to turn that situation on its head and say that senior managers ought to be identified to take responsibility for the organisational failure. The failure of the controlling mind test has shown that it does not reflect the reality of corporate decision-making and, as the Health and Safety Executive has attested, the majority of work-related deaths are due to systemic management failures, not to the actions of individuals.
In the case of the Hatfield crash, when sentencing Network Rail and Balfour Beatty for breaches of health and safety legislation, the judge felt moved to remark that:
“In the case of Balfour Beatty, I regard their failure as lying at the top of the scale. I have spent over 30 years of my professional life involved in cases concerning the duty of care, including many of the major transportation and other disasters of the late 1980s and the 1990s. I remind myself to guard against overreaction to this incident and I believe I have done so. But I have to say that I regard the failures of Balfour Beatty, set out above, as the worst example of sustained, industrial negligence in a high-risk industry I have seen”.
In the same circumstances, proceedings against individuals for manslaughter offences and under health and safety law resulted in dismissals by the judge or acquittals from the jury. That underlines the need to move to a new basis for judging corporate negligence that is not linked to individual criminal liability.
It also raises a significant question about what the offence proposed by the new amendment would add. It would impose liability where a senior manager contributes to the offence of corporate manslaughter by gross negligence. If it is indeed the case that a senior manager has acted grossly negligently and caused death, he can already be prosecuted for manslaughter. Lower down the scale, health and safety law provides sanctions against individuals whose conduct has contributed to health and safety failures.
My Lords, I was a commissioner at the time of the “Herald of Free Enterprise” disaster. As I understand it—and I will be corrected if I am wrong—there was no satisfactory inquiry into that episode. Would my noble friend therefore argue that the families of victims of that episode should not be compensated? Is it not right that there should be a criminal prosecution against the people who perpetrated that disaster?
My Lords, the issue of compensation is wider than the subject of the Bill. I do not think that that is the point. Whether the “Herald of Free Enterprise” case would have led to criminal prosecutions is a matter for some conjecture, although one should abstract one’s personal view from these issues.
What I was trying to say to my noble friends was that, on the lower order of issues relating to health and safety, the law provides for sanctions against individuals whose conduct has contributed to health and safety failures. The proposed new offence, with a test of gross negligence, would not add a significant new liability or deterrence to that already provided by the law.
The second argument advanced in favour of individual liability is the desire to see responsibilities taken seriously at a senior level. That is part of a wider debate about director-level engagement in health and safety management.
We recognise the importance of director leadership. Over the past 12 months, the Health and Safety Commission has examined in depth with its consultees, its stakeholders and others the issue of statutory duties on directors for health and safety management. It has not advised in favour of legislation, but intends to return to the matter when the implications of other reforms are clear—such as the effect of the Bill, recent company legislation and the action following Professor Macrory’s review of regulatory enforcement.
In the interim, the commission has asked the Health and Safety Executive to press ahead with producing new guidance on director responsibility, with the Institute of Directors playing a leading role, and with input from other business, the trades unions in particular, professional bodies, the Government and other stakeholders.
Just to remind ourselves: this Bill is designed to tackle a particular problem with corporate liability. We want to ensure that organisations will no longer be able to escape liability for their action because the law makes this contingent on individual guilt. Where individuals are personally responsible for a death, the law sets out a framework for holding them to account. We consider that it is the link between individual and corporate guilt that is inappropriate; and the primary purpose of the Bill is to address that problem.
The noble Lord, Lord Clinton-Davis, made a point about the “Herald of Free Enterprise”. I am reminded that there were criminal prosecutions against individuals and that there was a public inquiry. He is entirely within his rights to question the findings of that inquiry and to raise the points he did. I put that on the public record for accuracy.
My Lords, I thank my noble friend for that very comprehensive response to the amendment, but he repeated a great deal of what he had already told us in Grand Committee. This is a different sort of Bill; it does not provide for individual liability, and there is no intention by the Government that it should do so. I stress, as I have stressed before, that this will not be acceptable to many people—and I do not just mean the unions. This is a new offence and an entirely new Bill. It is new legislation and it gives an opportunity, as I said in my opening remarks, to deal with the issue of individual liability if the Government wish to do so.
There is public concern about this, and cases will arise where families will campaign. They have already begun to do so. The families of past victims have formed an organisation that has started to issue briefing papers and to campaign for a change in the legislation along the lines we have suggested.
As I said in my opening remarks, the unions will not be satisfied and will continue—although they accept the new legislation—to campaign for its improvement, as they see it, and for the introduction of an offence involving individual liability. They believe very strongly that without that provision there will not be a change in the culture of a number of companies. Indeed, as the article in the Times stressed, if you introduce the idea of individual responsibility it will change the culture of companies in the direction of better health and safety management. That is really what we are all about and want to achieve.
This issue will not go away; it will recur again and again. Let us hope that we do not have to wait for another accident with a death for more public pressure and then perhaps a further piece of legislation. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8: After Clause 2 , insert the following new Clause—
“Aiding and abetting etc
A member of senior management who is found to have aided, abetted, counselled or procured the commission of an offence of corporate manslaughter or corporate homicide shall be liable to imprisonment for a period not exceeding seven years.”
The noble Baroness said: My Lords, Amendment No. 8 is about secondary liability. It seeks to establish secondary liability for those who connive, conspire or collude in an act which results in death. This matter was recommended by the Joint Select Committee and it was discussed in Grand Committee. I am still unclear why the Government felt unable to accept the recommendation of the Select Committee.
It was suggested during the course of the debate that individual directors could be prosecuted for the common law offence of gross negligence leading to manslaughter under the Health and Safety at Work etc. Act. It then transpired that during the past 10 years there had been only seven successful prosecutions and that all of them occurred in small companies.
I therefore return to the issue on Report. There seemed to be considerable support for this in Committee. It is widely believed that a provision of this kind in legislation would have a significant deterrent effect. I therefore hope that since Grand Committee the Minister has been able to consider the powerful arguments made in favour of this by a number of noble Lords, in particular my noble friend Lord Wedderburn and the noble and learned Lord, Lord Lloyd, who declared that he could see,
“no reason why secondary liability should be excluded”.—[Official Report, 15/01/07; col. GC 211.]
Of course, in order for this to be effective, we cannot have Clause 16 in the Bill and we have therefore tabled an amendment to leave it out. I beg to move.
My Lords, it is beyond reason to imagine that the board could not have considered a rapid turnaround. The “Herald of Free Enterprise” and similar ships would have followed the instructions of the board to the letter. That instruction undoubtedly was that the quicker the turnaround the better because it meant more profits; it meant a whole lot of things that the board would have thought were very desirable. That policy was undoubtedly against the public interest. Therefore, I conclude that senior management must have considered that policy. The crew would have followed those instructions. If they had not, they would have been fired. So, I ask my noble friend to consider with favour what this amendment seeks to address.
It may be, of course, that there are issues which the amendment fails to address, but I shall not go into that. However it is worded, the impression given by my noble friend is absolutely right. There can be no doubt that at the highest possible level this issue was considered. I therefore believe that my noble friend the Minister owes the House the duty of addressing these important issues.
My Lords, I support my noble friend’s amendment, to which has been added my name and the name of the noble Lord, Lord Wedderburn. There was a great deal of support for the amendment in Committee. It was felt that the only way to bring the seriousness of the matter home to senior management was that if a death occurred, anyone found guilty of corporate manslaughter should be liable to a period of imprisonment. This seemed to strike a chord with people across the Committee. I know my noble friend the Minister has had time to reflect on this and I hope the Government will support the amendment.
My Lords, we have all missed the presence of the noble Baroness, Lady Scotland, throughout this process. At the outset of the debate in Grand Committee, I passed to her a copy of the test cases which I wished to use as examples of how the Bill might apply in practice. She honoured me with a reply, for which I am deeply grateful, in which she made specific reference to one of those cases. Her reply is worth reading because it underlines the confusions that even the noble Baroness herself can see in this, which could lead in time to the Bill being regarded as an unjust arrangement in the eyes of the public.
In her reply, the noble Baroness referred to my example F, the case I postulated of a racecourse with a fence which is known to be particularly dangerous if horses jump into a setting sun and, therefore, as a regular practice it is “dolled off”. But on one occasion, it is not dolled off and the fatality of a jockey occurs. In regard to example F, the noble Baroness said that,
“the Clerk of the Course may owe a duty of care to jockeys, but his personal duty of care could not give rise to a corporate manslaughter prosecution—the duty of care must be owed by an organisation to the deceased. Similarly, the duties of the board”—
of the racecourse—
“to the jockeys cannot give rise to a corporate manslaughter charge, but the duties owed by the organisation which they run could. In practice, there may be an overlap between personal duties owed and those owed by the organisation. Individual duties of care may give rise to questions of manslaughter under the current law of gross negligence manslaughter under which individuals may be liable, whereas organisational duties may give rise to questions of corporate manslaughter”.
Given the state of confusion which exists even in the mind of the noble Baroness, Lady Scotland, how can the wider public possibly perceive the justice of pinning imprisonment on anyone? There are at least five candidates in that particular case—the man who forgot to put the dolling around the fence; the groundsman; the clerk of the course; the chairman or chief executive of the racecourse; and, beyond that, what used to be the Jockey Club but is now the British Horseracing Authority. Some of those might look juicy targets to go for but, on the other hand, to go for any of them would look completely ridiculous in the eyes of the public.
My Lords, my name appears on this amendment and Amendment No. 47, with which it is grouped. Amendment No. 47 seeks to leave out Clause 16 and I hope your Lordships will pay close attention to it. It is incumbent on me, therefore, to explain, as I did to the noble Baroness, Lady Turner, why I can support Amendments Nos. 8 and 47 and not Amendment No. 7.
It depends on a fundamental issue relating to the criminal law. What one might call the DNA of criminal liability is a curious and now rather complex double helix, the bond between primary liability and secondary liability. One leading textbook, quoting a case from 1611, states:
“It has always been sufficient to prove that the defendant was either the principal or the secondary party”.
The secondary party in the common case is one who is found liable if the evidence proves that he committed the offence primarily or, secondly, that he aided, abetted, counselled or procured it. That is still the ordinary rule of law. Where there is an offence, you expect liability in the primary case to be on the person who committed it, and the secondary liability to be on someone who aids and abets. But not in this Bill; Clause 16 expunges all notion of secondary liability from the Bill’s grasp. Anyone who aids, abets, counsels or procures the offence established by Clause 1 has a complete immunity under Clause 16. It has never yet been explained precisely why this has to be so.
Perhaps I may deal with Amendment No. 8 and then turn to what the Government have said. Amendment No. 8 takes the common-sense line that mostly the people who will be said to have aided or abetted, or in some way assisted in the gross negligence that has led to a death, will be in senior management. It might be said that the amendment should be couched in terms of “anyone” who aids or abets but, as a matter of common sense, I have found it possible to put my name to it as it stands.
The amendment raises the issue of corporate homicide in Scotland. In Committee, we learnt a great deal from noble and learned Lords from Scotland and that the test of corporate manslaughter is quite different north of the Border than it is here. Having raised the point, I suggest that it should be debated when we reach Amendment No. 43, tabled by the noble Earl, Lord Mar and Kellie, and I leave it there for the moment.
Returning to the main issue, why should someone who aids and abets this new offence be given a gigantic, special, separate immunity? As a matter of common sense, again, it has been complained by some people that executives in companies which have been involved in rather large accidents in the past have gone to such lengths by the mantra of “cut costs” that they have aided and abetted the gross negligence of those who left aside the safe system and caused deaths. BP is in the middle of such a controversy. It had a disaster in Grangemouth in 1987, in Falkirk in 2002, and now of course there is the extraordinary explosion at its plant in Texas.
I take it as common ground that there can be cases where, under the ordinary rule of law, someone could be liable for aiding or abetting this offence. It is not a burden upon me to establish precisely what the circumstances are. As I understand it, it is for me to agree with the case the Government put in Grand Committee that such liability on a set of facts that one might agree upon is possible. If it is possible, why is it excluded?
Aiding and abetting can, in some circumstances, be constituted by an omission. In 1940, the Lord Chief Justice Lord Hewart faced the case of Rubie, an experienced driver who just sat in the car and did nothing when, by the side of him, a learner driver drove recklessly and caused a terrible accident. The Lord Chief Justice said in that case that,
“it was open to the justices to find, as they did, that, by his passive conduct in circumstances in which what was required was something which was not passive, but active, he aided and abetted the offence”.
It does not take great steps of the imagination to translate that test against some industrial circumstances of a very large enterprise.
If I may, to be fair I shall cite what has been said by the Government. The noble and learned Lord, Lord Davidson of Glen Cova, said in Committee:
“we do not think that providing secondary liability for the new offence would cover a level of criminal behaviour that is distinct from the culpability required by a conviction for manslaughter”.
Later, he said:
“We do not think that by allowing secondary liability for the new offence we would achieve any significant extension of individual liability, but would create a new level of complexity”.—(Official Report, 15/1/07; GC 214.)
Complexity is no defence to giving a wide immunity of this sort. Nor, indeed, is it a question of achieving a new level of liability. It is a question of reaching a second defendant.
The amendment accepts that criminal primary liability is the object and aim of the Bill. What it and Amendment No. 47 do not accept is that secondary liability—the normal rule of law about secondary liability—should be excluded from this field forever. The statements of the noble and learned Lord the Advocate-General for Scotland in Committee are true as far as they go, but they are not to the point of why there should not be secondary liability for anyone who aids and abets.
Finally, I have made my case as quickly as I can. Of course it is a legal case on the point of simple legal analysis: that secondary liability is the normal rule of law; that the Bill excludes it; and that the Government take away the amendment and think about it, which is what I am asking for tonight. I am asking that the Government think again about the circumstances raised by Amendment No. 8 and come back at Third Reading having rethought the idea of secondary liability in general. However many cases there may be, however few they are, if there were a case of aiding and abetting the offence under the Bill, there should be criminal liability under the normal rule of law.
The noble and learned Lord said earlier something to the effect that we want everyone to be covered by the law. I want everyone to be covered by secondary as well as primary liability, which is why I support the amendments, not the previous ones.
My Lords, I hesitate to intervene in this debate, as I have been unable to take part since Second Reading. I redeclare my interests as a member and sometime adviser of the GMB and as chair of the National Consumer Council.
I follow the noble Lord, Lord Wedderburn, in particular, on this because I strongly support the amendments: in particular, Amendment No. 47. I understood the Minister’s argument about the noble Baroness's previous amendment. I do not necessarily entirely agree with it, but I understand that the Bill is about creating a new offence of corporate manslaughter and that individual primary liability should not be covered in the Bill. It is a thin Bill with a clear purpose. I understand that.
However, in this case, having created a new offence, we are now, via Clause 16, excluding any liability for aiding, abetting or conspiring to commit that offence. As my noble friend—or my noble ex-friend—Lord Wedderburn said, that is surely a novel principle. Secondary liability automatically arises in such cases and the clause is pretty novel in excluding in all conceivable circumstances a secondary liability for contributing to a primary liability. In response to the noble Lord, Lord James of Blackheath, that will appear extremely anomalous to the public. Their confusion is in the exact opposite direction from that which he claims. If someone has made a major contribution to a prima facie corporate manslaughter case, the public will not understand that no prosecution is possible. Therefore, I support Amendment No. 47 in particular.
My Lords, earlier, we considered whether there should be a new offence that would apply to individuals to make them liable if, through gross negligence, they contributed to the new offence of corporate manslaughter. Now we consider the more novel issue of secondary liability. The question posed by the amendment is in similar territory to the position of individuals under the Bill, but it addresses it in terms of secondary liability for the corporate offence, rather than through a distinct offence.
Much of what I said in response to the earlier debate is equally applicable in this debate. The central focus of the Bill is to find a new and more effective way to attach liability to a corporate body for the offence of manslaughter. Relying on the identification principle and a requirement of individual guilt does not adequately address the question of corporate mismanagement that should underpin corporate liability in this area.
Clause 16, to which noble Lords have referred, and which Amendment No. 47 would remove, goes a step beyond simply creating a new corporate offence and removes secondary liability for that offence on the part of individuals. That is a departure from the general principle of secondary liability in the criminal law, but it is done with good reason. The Law Commission’s report in 1996 stated that the new offence was intended to stand in parallel with homicide offences relating to individuals, representing a particular means for attaching an offence of manslaughter to an organisation. It was not intended to provide, through the test of secondary liability, a new set of circumstances where individuals would be subject to criminal liability. Our thinking on the Bill works with the Law Commission’s original thinking set out in its report more than 10 years ago.
If there are questions of gross negligence on the part of an individual, we think that proceeding should be taken under existing law, not as a matter of secondary participation. I shall repeat some of the arguments that we adduced on Report. They may not necessarily find favour with my colleagues.
We are not satisfied that providing for secondary liability in respect of the new offence would deal with a distinct level of culpability not already covered by current law. To show that an individual was secondarily liable for an offence, it is generally necessary to show that the accessory had a similar state of mind as the main offender, or at least knew or intended that the offence would be committed. In the context of corporate manslaughter, that would mean that an individual would need to be aware of the picture of failure in the organisation, at least contemplate it being grossly negligent and act in a way that supported or sought to bring that about.
In those circumstances, it is likely that an individual charge of manslaughter would be possible. If those circumstances were to be present, it is appropriate that the individual should be prosecuted for manslaughter in his or her own right, not for a secondary offence.
My Lords, this is Report. We have been tolerant, but perhaps the noble Lord will let me develop my argument.
In particular, that would put the individual at risk of maximum sentence of life, as opposed to seven years, as under the amendments. On the other hand, although posing the question of secondary liability would not extend individual liability significantly, it would add an extra layer of complexity to the investigation and prosecution of the new offence. As well as assessing individual liability to existing criminal offences such as manslaughter and under health and safety law, the police and prosecution would need to explore any potential differences between these offences and secondary liability for corporate manslaughter. That would complicate the issues brought to trial, but would not lead to any significant increase in the chance of individuals being successfully prosecuted. That is key.
To conclude, the position of individuals is obviously an important issue for the Bill. The new offence sets out to address the particular mischief in the law that provides for a narrow basis for corporate liability for manslaughter. In doing so, it is not our intention to try to redefine when individuals should be guilty of offences. That would be the effect of allowing secondary liability for the new corporate offence. Excluding secondary liability is novel—that point has been well made—but it reflects the peculiarities of this new offence as a means of defining corporate liability for manslaughter, rather than an entirely new addition to the ranks of criminal offences. In these circumstances, we think that the exclusion is appropriate. In future, cases will be investigated on the basis of the new offence and existing offences for individuals. I argue that that would be a substantial step forward, and one that I am sure the House would generally commend. For those reasons, we continue to resist the amendment.
My Lords, I would be most grateful if the Minister would allow me to ask a question. Is he saying that, after the first and only debate on secondary liability during the passage of the Bill, apart from ones in Grand Committee in which one can go on and on for ever and no decision is ever taken, the Government will not think about it again at all?
My Lords, Governments at all times reflect on issues that have been raised in debate, and I am sure that we will continue to reflect on these matters.
The noble Lord, Lord James, argued in summary that duties of care could become too confused. The response that we provided sets out the position as it applies at the moment. Individuals can be liable for gross negligence and manslaughter if they are in gross breach of a duty of care. Complexities inevitably arise when more than one person is involved. That must follow because the position of each person and their responsibilities must be considered. I hope that the noble Lord will think on that response.
I hope that our responses have been helpful. I fully accept that not all noble Lords will be entirely happy with the position that we have reached, but we think that the way in which we have set out the Bill continues to make it workable and takes us a step further along the road in ensuring that we have effective corporate manslaughter legislation on the statute book.
My Lords, I thank my noble friend for that response, but he will not be surprised to learn that I am not very satisfied with it. There have been a number of quite notable submissions in the debate this evening, particularly on secondary liability, and with particular reference to Amendment No. 47, which seeks to remove Clause 16. He has repeated again that he believes that present legislation provides for a remedy. We discussed that in Grand Committee. It was pointed out by a number of people, including my noble friend Lady Gibson, who is a member of the Health and Safety Executive, that to their knowledge very few prosecutions have utilised the Health and Safety at Work etc. Act during her time as a member of the executive. The few that did involved very small companies.
I support what my noble friend Lord Wedderburn has said. We have had a long and quite interesting debate on secondary liability and, although I intend to withdraw the amendment, I urge the Minister to think again about what has been said this evening and to see whether some step can be taken to address some of the problems that we have outlined. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Public policy decisions, exclusively public functions and statutory inspections]:
[Amendments Nos. 9 and 10 not moved.]
11: Clause 3 , page 3, line 43, leave out “or (b)” and insert “(b) or (d)”
On Question, amendment agreed to.
[Amendment No. 12 not moved.]
13: Clause 3 , page 3, line 46, leave out “or (b)” and insert “(b) or (d)”
On Question, amendment agreed to.
14: Clause 3 , page 4, leave out lines 6 to 8
15: Clause 3 , page 4, leave out lines 11 to 13
On Question, amendments agreed to.
Psychology, Psychotherapy and Counselling: Regulation
asked Her Majesty’s Government what progress they have made in the statutory regulation of the professions of psychology, psychotherapy and counselling in the past six years.
The noble Lord said: My Lords, I am grateful for the opportunity to return to an issue that has concerned me for some time. I start by declaring an interest in that I am a consultant psychiatrist in psychotherapy and run a centre for psychotherapy—an NHS facility—in Belfast. I also refer colleagues to the reason for the terms of the Question, which refers to progress in the past six years. This is the period since I introduced a Private Member’s Bill in your Lordships’ House for the purpose of introducing the statutory registration of psychotherapists. I had become increasingly concerned that some psychological therapies were being carried out by people whose training, practice and in some cases ethical standards were of variable quality. While this was not good for the profession, it was extremely dangerous for the vulnerable people who sought help, as was clear from those who came to be treated by my team, having had damaging experiences at the hands of what one might describe as wild psychotherapy.
Mine was by no means the first attempt to address the problem. The 1971 Foster report into scientology and the 1978 Sieghart working party of senior professional psychological and healthcare organisations had both recommended statutory registration. And in 1981, Graham Bright MP brought a Psychotherapy (Registration) Bill to the other place. The Bright Bill focused on a rather limited number of specific organisations, and on the difficult-to-define practice of psychotherapy. Sieghart wisely suggested protecting the title “psychotherapist”, which was also the line that I took.
In the 1980s, a series of conferences of practitioners addressing the statutory registration of the psychotherapies culminated in the establishment of the United Kingdom Council for Psychotherapy. However, the most eminent psychoanalytically orientated organisations, and indeed others, were unhappy on several professional grounds and split away. The psychoanalysts and analytical psychologists formed the British Confederation of Psychotherapists, now the British Psychoanalytic Council.
It must be said, too, that many practitioners inside and outside the NHS were not members of either of these bodies. Successive Governments have understandably been reticent to tackle the regulation of such a divided profession. Indeed, it is not an easy task, especially when one adds in the other bodies of what one might loosely describe as psychological therapists, in particular psychology and counselling, neither of which yet have a regulatory framework governed by statute.
Recent years have seen a rise in public concern about the practice of healthcare professionals, and the increasingly strict statutory regulation of the training, practice and continuing professional development of those responsible for physical treatments of physical disorders. Under the law as it stands, however, anyone can describe themselves as a psychologist, psychotherapist or counsellor, and a person seeking treatment has no statutory register to consult that will enable them to clarify who is reputable and who is not. It is simply no longer acceptable that there is so little protection for those who seek psychological treatments, and who are if anything even more vulnerable than the physically ill because of their emotional and mental disturbances. If most therapists operated within the National Health Service, one might at least have some assurance that the context and supervisory mechanisms of the NHS would give some protection to both professionals and patients.
However, this is not the case. A very large proportion of counsellors and therapists in the UK operate outside the NHS, perhaps as many as 70 per cent. This is not entirely a matter of choice. The absence of proper resources for psychological treatments has pushed many patients and professionals outside the NHS. Despite repeated commitments to alternatives to drug treatments for mental and emotional disturbance and the clear and mandatory guidelines of the National Institute for Health and Clinical Excellence, the Government and the NHS have failed to make the necessary resources available. In the case of psychotherapists and counsellors, there is no proper structure for training, employment and career development, with the exception of child psychotherapists and art psychotherapists.
The absence of statutory registration suggests to trusts and employing authorities that, whatever NICE says, the Government regard these treatments as being of marginal importance. This impression is strengthened when one compares the amount of money spent on pharmaceutical products and research with that available for research on psychological treatments and the employment of psychological therapists. If employers saw an officially recognised professional career structure for psychological therapists and a statutory framework to ensure proper practice and a procedure—to which aggrieved clients and others could have recourse—they might be encouraged to invest more. The complete absence of any statutory requirements or structures for psychotherapy is unacceptable. Sooner or later a number of cases will emerge—tragically, probably in the tabloid newspapers—in which unsatisfactory practice will result in a strident public demand for “something to be done”.
The most obvious government response would be to turn to the Health Professions Council established under the Health Act 1999. However, that would not be satisfactory and, after due consideration, was rejected by all the major elements of the professions. The president of the British Psychological Society recently made clear to me that, regardless of the society’s position some years ago when it accepted HMG's invitation to explore the HPC as an instrument for statutory regulation, it is, in his words, not fit for that purpose. Along with the UKCP, the British Association for Counselling and Psychotherapy, the British Association for Behavioural and Cognitive Psychotherapies and others, the society has produced detailed proposals for a psychological professions council. While not part of this consortium, the British Psychoanalytic Council came to the same conclusion—that the HPC was not an appropriate body, but that one which brought together the three professions would be suitable.
Why this dissatisfaction with the HPC? The membership of the HPC is primarily concerned with those who treat physical illnesses, and the way that they deal with training and skills is much less variable. In general terms—and I know that I am not doing justice here—while there is largely a right way of doing physiotherapy, chiropody or microbiological or histopathological tests, there is much wider variation in psychological treatments. The HPC professions are also much more able to set out their skills in the form of protocols which can be followed by people of a range of personalities. It matters relatively little if one technician or physiotherapist has to be replaced with another. The personality of the therapist and the relationship with the client is, however, crucial—indeed sometimes central—to psychological treatments. Therefore, the training, assessing and monitoring of psychologists, psychotherapists and counsellors needs to be quite different. A separate regulatory body is the best way to do that. Frankly, it is also difficult to conceive how such a wide range of psychotherapies, schools of psychology and counselling could be represented under the current HPC mechanisms.
I should emphasise that nothing that I have said about concern for patient welfare and anxiety about rogue therapists should be taken to suggest that the professional standards developed by the various professional bodies in these fields are not excellent. Indeed, another reason for their antipathy towards the HPC is that it is perceived to have a lower threshold than the majority of voluntary codes. The concern is that these do not have a statutory basis and anyone can practise without membership of a professional body or reference to their professional codes.
The Minister’s responses to the amendments in Committee in 2001 indicated that he realised this, when he said that HMG might be prepared to consider new arrangements enabling psychotherapy, psychology and counselling to be managed together in a new council set up under the Health Act 1999. Sadly, however, the Government were not willing to amend or widen the terms of that Bill; nor were they willing to proceed with their own version based on the Minister's response.
There have been discussions with stakeholders, although I sense that these attempts have strayed back into trying to define skills and techniques rather than appreciating that, in this field, professionals, their work and relationships with clients are not susceptible to such definitions and protocols. The process of achieving statutory registration in these fields has proved long term, painful and frustrating. The alternative is to do nothing, until eventually the Government are bounced by scandals and public demand into something being done which may be on a less considered and appropriate foundation.
Do Her Majesty’s Government recognise that professional bodies in this field support regulation but are unhappy about the Health Professions Council as an appropriate instrument? How do the Government intend to address those concerns and will they give consideration to a new regulatory council for psychological professions within the framework of the 1999 Act?
In my closing comments during the Second Reading debate in 2001, I noted that in respect of Northern Ireland, Her Majesty's Government had decided that 30 years was long enough and had set their mind to addressing those complex problems—with which I am also somewhat familiar. It would appear that in the intervening six years even the historic problems of Ireland have made more progress towards resolution than the problems of the statutory regulation of psychology, psychotherapy and counselling. I hope that, now the Minister has returned to the Department of Health and again shouldered responsibility for better regulation, he will encourage us by preparing to build on the thoughtful proposition that he made in Committee on my Bill all those years ago, by establishing a body that will bring together into one body what he described as the talking therapies. As he said, that could be done by an Order in Council process, under the Health Act 1999. Is he prepared to do this with due consultation with the stakeholders involved? If he is, my colleagues and I stand ready to assist him in this important matter.
My Lords, I thank the noble Lord, Lord Alderdice, for giving us the opportunity to debate this important topic tonight. As I understand that a White Paper is due very shortly I am not sure that I can entirely congratulate him on the timing.
I begin with my declarations of interest. I am a social worker, trained as a counsellor, and I have lost count of the number of times I have recommended these types of therapies to friends, clients and colleagues as a means of sorting themselves out. On more than one occasion in my life, I have been grateful for the help I myself have received to get me through a difficult and distressing period. It has always been helpful, life-enhancing and indeed, on one occasion, life-saving. Therefore, I make no bones about the fact that I am a fan and a believer in the talking therapies. It is because I am a fan and a believer that I very much welcome the Government’s intention to regulate the profession.
I and others use the word “profession” but that is in itself a misnomer. Profession implies a recognised qualification, proper standards, registration, monitoring and, in extremes, striking off. But nothing like that exists for many of the people who practise talking therapies. The British Association of Counselling and Psychotherapy and other bodies do their best. As the noble Lord, Lord Alderdice, reminded us, some of their standards are higher than those that might be imposed by legislation. However, there is no necessity for anyone to register with them. As we have heard many times, anyone can put up a brass plate and practise as a psychotherapist. While we can say to a potential client or patient, “Always be sure that the person you are seeing is approved”, how many people would even begin to know what that was? The plain fact is that we begin to think about seeing such a therapist only when we are in some kind of distress; for example, in bereavement, when our marriage ends or when our most intimate relationships are going wrong. That is when we are at our most vulnerable, most suggestible and when we are least able to make rational judgments.
Sadly, that makes us prey to practitioners who are incompetent or even malevolent. We have all heard of therapists sexually or financially abusing clients. I believe that these cases are rare, but even one is too many. But still too many people find—by chance, by recommendation or through desperation—a therapist who exploits them in some way or who does not help them to cope with the problem they are presented with. This exploitation takes many forms: for example, people may be kept hooked for too long in a therapeutic cycle; people may be caused financial distress because therapy is not cheap and is rarely available on the NHS; or, perhaps worse, therapy does not help them to become strong enough to deal with their own life for themselves.
Your Lordships may be familiar with that old Woody Allen joke: “I have been seeing my shrink twice a week for seven years now and don’t feel any better. I am going to give him one more year and then I’m going to go to Lourdes”. It may be amusing, but to see people spend their life savings on 10 years of therapy and never move on, or even begin to come to terms with their difficulties, certainly is not. Of course, some problems are so difficult and so deep seated that they may take 10 years, but most people can be helped to find a means of operating which enables them to grow and not be kept in thrall to therapists. Surely, that says more about the therapists than the client.
As Dr Chris Allen said in yesterday’s Observer:
“The government plans are overdue; outside the framework of the NHS too many therapists operate in isolation and without adequate supervision, offer therapies of unproven effectiveness and can end up meeting their own needs for power”.
That is why most reputable therapists, as we have heard from the noble Lord, Lord Alderdice, welcome the idea of more regulation and that it should be statutory. I believe that it should also be necessary to ensure that therapists are in therapy or some kind of continuing counselling relationship.
I know that there is controversy about how regulation will operate. The noble Lord, Lord Alderdice, has shared his reservations about that. No doubt other noble Lords will have received, as I have, briefings about the reservations of the psychological professions and the alternative proposals that have been put forward. No doubt these proposals and others will be extensively debated as we work on the legislation which I hope will follow the White Paper. For my part, I am just glad that the Government are willing to tackle this thorny problem. It is overdue, as I am sure we can all agree.
We also have to acknowledge that it will not be easy to regulate such therapies. By definition, they are carried out on a one-to-one basis where a relationship of trust is established between the professional and the client. But there is no doubt that effective training, assessment and supervision of people in such professions will certainly go some way towards identifying those most likely to abuse power.
The other reason that I applaud the Government’s intention to regulate is the publicity which I believe will result. One of the great problems of talking therapies is that people know nothing about them or know about them only in a mysterious way. I believe that this publicity will be very important in getting away from talking therapies being shrouded in mystery and ignorance. In my view, referral to a therapist should be as ordinary as referral to have an X-ray. Taking the mystery out and putting the regulation in will benefit not just those who avail themselves of the services but the whole of our society. It will help us to understand better our mental and emotional health and needs, as we have begun in recent years to understand our physical needs.
My Lords, I am delighted to follow the noble Baroness, who I have known and admired for 20 years or more. The House will know of her work to reach out to many of the most disadvantaged and vulnerable people. I therefore take her words with that weight. I also want to pay a very warm tribute to the noble Lord, Lord Alderdice, for securing this debate and for continuing his work of the past 15 years to encourage people in Parliament and the wider public to understand the importance of the talking therapies. The noble Lord is not only a psychiatrist, but also a psychoanalyst, who is in not historic practice, but current practice. We should listen to his words with all the more care.
I have been involved in this debate for many years, originally working in association with the Maudsley hospital and with child guidance clinics in Brixton and Peckham. I was chairman of the juvenile court in Lambeth for many years. One could see those troubled, disturbed young people and believe that the answer for them was a physical, pharmaceutical, medical response. They needed support, encouragement and education, but they and their families also needed talking therapies. As Health Minister, I certainly did not make the progress that I hope future generations of health Ministers will make. We had the Professions Supplementary to Medicine. We have moved on to the Health Professions Council. But I am very much with those who believe that the talking therapies need a different structure.
Since I last visited the subject, the progress has been great. I was brought in again in 2000-01 by a wonderful man, Peter Hildebrand, who had been on the Sieghart committee. He was in charge of adult therapy at the Tavistock. In his last year of life, he called and said, “I will not see the year out, but before the year is through I want progress to be made on the statutory regulation of talking therapies”. I spoke to his widow today and said, “There has been further progress, but we still haven’t got there yet”.
I believe that we have a real opportunity but we must not allow simplicity to cloud the complexity of introducing statutory backing that is sensitive to these therapies. The crucial element is that for many people with mental health problems it is the medical model that they most dislike. They do not want to use a pharmaceutical approach. They find hospitals and the medical culture alien. For them, there is a great demand for talking therapies. I spoke today to Barbara Herts who runs YoungMinds, which has a campaign to mainstream mental health issues for young people—in schools and youth clubs—and be a voice for children and young people. It wants talking therapies. It does not want to go on a pharmaceutical route unless it really has to. Of course, if people have a psychotic condition, that may be the best option. But there is a real demand for talking therapies.
What do these young people want? They want robust regulation, transparency and to know about outcomes. They want less jargon and more openness, and regulation with an independent element. Of course, all the talking therapies have received a great boost from that wonderful report, The Depression Report, by the noble Lord, Lord Layard, which I am sure was greatly inspired by the noble Baroness, Lady Meacher, and all her work at the Mental Health Foundation. As a distinguished economist at the LSE, at its centre for economic performance—I declare my interest as a governor of the London School of Economics—he gave great priority to the importance of talking therapies and greatly promoted cognitive behaviour therapy. We know his argument; namely, that 16 treatments would cost £750, the equivalent of one month’s incapacity benefit and lost tax. His wonderful argument is that it makes economic good sense to take cognitive behaviour therapy seriously. His report argues persuasively and disturbingly that those NICE guidelines simply cannot be implemented. There are not enough therapists. Only one person in four is receiving any kind of treatment. Three-quarters of those affected live in their unhappiness individually. They are economically inactive and, of course, there is associated family misery. We all know that the effect of a depressed mother in terms of children’s disturbed, hyperactive behaviour and so on has been evidenced for a long while. People wait nine months to receive help. We need another 10,000 therapists and 250 local services to be achieved by 2013. The decent regulation of people involved in talking therapies would make a significant contribution. I referred in an earlier debate to the Charlie Waller Memorial Trust. It funded a chair at Reading University in CBT, which was a practical contribution to this movement.
I also want to pay tribute to my noble friend Lord Howe. He and my colleague in another place, Tim Loughton, have made a great effort to meet many of those involved in these professions. We all share in the exasperation of being completely unable to follow what one particular group wants, what another group does not want, and how it is all to work together. In that state of exasperation, it is easy to fail to understand the key point made so clearly by the noble Lord, Lord Alderdice: these are therapies of a different kind. The tool is the relationship. We need to understand that there is no prescriptive list of actions, treatments and interventions. The noble Baroness, Lady Pitkeathley, put it only too well.
I should like to cite another example, that of the Immigration Counselling and Psychotherapy Service. This is a remarkable charity employing 300 psychotherapists. It cares for the damaged children of the industrial schools in Ireland and provides support and care for many Irish migrants to this country, a group that is often overlooked and misunderstood. Many of them faced great personal distress during the Troubles and in some of the incidents in this country. The charity’s psychotherapists are regulated by the British Association for Counselling and Psychotherapy and the UK Council for Psychotherapy. It applies high standards with good supervision; indeed, many of its standards are higher than could be expected of a statutory body. Along with all the others involved in practice, it is anxious about the damage that could be done if the Government take what may seem like the simplest and shortest-term option rather than look at the complexity of the position.
I am grateful to Professor Jennifer Brown, head of the Department of Psychology at Surrey University, where I am a Pro-Chancellor. Along with the University of Hull, where I am Chancellor—I should mention that to provide balance—it does a lot of work in training psychologists and counsellors. Professor Brown articulates the position clearly:
“The HPC procedures are designed to encompass a very broad range of health and allied professions, and as such are neither rigorous enough nor are their standards sufficient to regulate the professional practice of psychology effectively”.
Some 60 per cent of psychologists do not work in the NHS, but in other settings. Some work for charities such as those I have mentioned. I have talked about Young Minds and ICAP. They work with Cruse, Relate, the Samaritans, and on helplines. It is not appropriate to regulate these people in that way. What is more, the perverse aspect of this is that in many cases there is a degree of co-payment, so if the Minister effectively nationalises all these therapists, with that he will pick up a considerable hidden cost. Regrettable as it may be, many charities work through contributions made by patients. That is a further argument. Many work in education and the Prison Service, which is much debated in this House. For them, the sensitivities required in their field of engagement are extremely important.
I hope that the Minister, having returned with a new lease of life, will revisit this subject. There is no doubt that it would be a tragedy to miss this opportunity, given that there has been such a convergence among the relevant bodies, and to go down a blinkered route. Many of us greatly admire the noble Baroness, Lady O’Neill of Bengarve. In her wonderful book, A Question of Trust, she wrote:
“The efforts to prevent the abuse of trust are gigantic, relentless and expensive. The results are always less than perfect”.
Few hope for perfection, but I hope that the Minister can persuade his colleagues of the validity of the profound and very persistent points being made on this subject. If he can do that and prevail, the result of this convergence will be much nearer to perfection.
My Lords, I congratulate my noble friend on securing this debate. The title may be slightly wrong and perhaps we ought rather to look at the progress he has made towards the goal of regulation of these professions. As many noble Lords have said, some 35 years have passed since people first recognised the need to ensure quality and safety for patients, and it is six years since my noble friend made one of the best attempts ever at trying to bring together very disparate and sometimes conflicting groups of people. Like the noble Baroness, Lady Pitkeathley, during my preparation I found my mind wandering off to consider Woody Allen as well. In a slightly different vein, I wondered how many Woody Allen films have been made since people started to address this issue, and how many will there be before it is resolved.
Looking back to the debates in 2001 on my noble friend’s Bill, what he managed to do then was to crystallise the main issues. I would say that the only difference between then and now is that the demand for talking therapies has increased dramatically. Thirty-five years ago, no one had heard of chronic fatigue syndrome or ME, but people are now regularly given those diagnoses and sent for talking therapies. Further, Members of this House know only too well that the demands for the child and adolescent mental health services cannot all be met.
A key issue of the time was whether the inclusion of counselling in a regulatory body was desirable. Counselling is now recognised as one of the most cost-effective low level interventions in health, but it is one which people often do not seek for themselves. They are frequently referred by, for example, their GP, and innovative GP practices now provide counselling services. People take counselling on trust and at one remove, and so have no way of establishing the quality of the service for themselves. Another issue was how to include the different modalities of psychological and psychotherapeutic intervention.
A further issue was how to regulate most effectively a range of people working either privately or within the NHS with a myriad of job titles, and some of whom may be subject to different and separate regulation. For example, GPs are already subject to regulation by the GMC, but may provide some form of psychological or psychotherapeutic service although that is not their primary role. Questions were asked about how to establish the most effective and efficient regulatory framework. Back in those days Ministers argued for therapists to be included in a health professionals’ council under the Health Act 1999 while others pursued the route of a stand-alone body, a form of psychological professions’ council as outlined by my noble friend. Six years on, I suggest that it is a good time to look at where we are and where we need to be.
One of the things my noble friend deserves most credit for is bringing about a degree of consensus among the professions, which was not the case back in 2001. I do not say that there is now complete unanimity, but there is a far greater degree of agreement than was the case then. For example, the inclusion of counselling and psychology is now by and large agreed. That is no mean achievement given the range and strength of views held. An additional key issue was the agreement that it is not right to include psychological and talking therapy professions in with other health professionals. It simply does not make sense either to patients, users or the professionals themselves to be lumped in with those treating physical illnesses because they simply do not have a sufficient commonality of approach. My noble friend Lord Alderdice set out the reasons for that extremely clearly.
That mirrors something which is going on in another area of the health field: the proposal by the Government to merge CSCI with the Healthcare Commission and the Mental Health Act Commission. There are similar reservations on the part of mental health professionals who feel that putting these bodies into the same inspectorate framework is misguided. I know we are going to have other discussions about mental health in this House—indeed, we are in the middle of them—but it is important to make the point that when the professions themselves are talking in that way about regulation, the Government ought to listen. The question is whether one has a regulatory framework that is sufficiently broad to enable it to include a wide range of people, or, if you seek to go down that road, whether you then lose quality and professional standards. I suggest that one of the lessons we can learn from this is that we do.
I wish to pick up the point about the composition of any regulatory body, about which there was a big discussion during consideration of my noble friend’s Bill. At that time the Government talked about the need to have lay involvement. No one these days would suggest that not having some degree of user involvement on a regulatory body was anything but acceptable, but the Government were talking then about something in the order of 50 per cent lay people. When one considers the range of disciplines within the fields of psychology, psychotherapy and counselling that have to be included, one is talking about quite an extensive body. I wonder, when the Government get around to discussing the nature of the body with us, whether they might consider that matter.
Finally, back in 2001 the Government made an argument about the need to avoid as far as possible dual regulation of people who are already regulated because they have another medical profession; for example, GPs being regulated by the GMC. It is fair to say that it is not that unusual, within the health service alone, for people to be subject to different forms of regulation. There is a general level of patient care that one would expect in any of the caring professions; that is a given. If someone were to present themselves to a patient as having a degree of expertise above and beyond that—I am thinking, for example, of a nurse who becomes a specialist bereavement counsellor—we would expect them to have that qualification, and I think they would expect that too.
I wish to make two final points. There is an urgency about this issue. At other times we have been discussing the Mental Health Bill. The increased role envisaged in that Bill for psychologists and associated mental health professionals cannot but mean that there is going to be greater involvement of these sorts of professionals in the mental health world. There seems therefore to be an urgent need to make sure that there are standards and a quality of regulation to which they are not subject now.
It is a delight to see the Minister back at his old post. I hope that in the past six years he has not lost sight of my noble friend’s almost unique ability to group together people who do not agree on very much and get them to work together in ways that are quite extraordinary—not just in relation to this issue. I offer just one piece of advice to the Minister: if I were in his shoes and I had my noble friend’s offer to assist in moving to what I think will be a final resolution of this matter, I think I would bite his hand off.
My Lords, there can surely be no one better qualified than the noble Lord, Lord Alderdice, to introduce a debate on this topic, nor indeed anyone more worthy of doing so, bearing in mind his staunch commitment to it over many years. It was entirely predictable that he would leave me with very little to say, and I am not sorry about that, because if in some respect I were to find that my thoughts were veering in a different direction from his, I would be rather worried. As it is, I am 100 per cent alongside him.
We start, as the noble Lord rightly said, from an agreed position of principle. We know that the Government, as much as the psychological professions themselves, are desirous of achieving a workable system of professional regulation. Indeed, we have known that for some years. It is, frankly, disappointing that six years after the noble Lord introduced his Private Member’s Bill, the expressions of commitment from the noble Lord, Lord Hunt, to help bring about that system of regulation have still not reached fruition. At that time we received a clear message from the Government that their preferred route for achieving regulation was to use the powers set down in the Health Act for a quick and flexible solution; namely, a Section 60 order.
It was not quite clear to me at the time whether they were suggesting that the psychological professions should be subsumed under the umbrella of what is now the Health Professions Council, or whether in their view there was a case for establishing by order a separate dedicated body for the talking therapies. Reading those debates again, I am inclined to think that they were deliberately leaving their options open on that point. Until the forthcoming White Paper is published we will not know for certain what the Government’s final proposals are, but judging by the tenor of the Foster and Donaldson reports it seems clear to most of us which way the wind is blowing. That is why I believe this debate is timely.
Of course, in voicing my disappointment that no regulatory system has yet been put in place for the psychological professions, I do not mean that the last six years have been unproductive. The Foster and Donaldson reviews, whatever one thinks of their precise content, are evidence of the Government’s wish to modernise medical regulation, in its broadest sense, across the piece. Equally, in the intervening time, the various branches of the psychological professions have shown commendable energy in trying to reach a consensus of views. What I think today’s debate has shown is that that is by no means a straightforward matter. I am sure we will have time to debate Foster in the round at some future date, but one of the assertions he made that I find most unsatisfactory was the statement that,
“any new profession coming into statutory regulation should be regulated by one of the existing regulatory bodies, probably the HPC”.
That statement has the distinct ring about it of a prejudged conclusion. I have to say that the vagueness of the word “probably” in that sentence underscores my belief that there really is very little in the way of logical argument underpinning the recommendation. To argue that having one umbrella regulator is neater and tidier, which is what his position amounts to, is to adopt an a priori position that has nothing whatever to do with the needs and circumstances of individual professions or of those in receipt of treatment from people practising in the name of those professions.
If, as I fear, the Government are set on making the Health Professions Council responsible for regulating psychologists and psychotherapists, we are heading for real trouble. What unites those professions currently regulated by the HPC is that, as a generality, they work within a context of delivering healthcare on behalf of employers whose function it is to do that. The focus of the HPC is therefore on healthcare. As we have heard from my noble friend, only a minority of psychologists work in a healthcare environment. Many work in industry and commerce. Many do not provide one-to-one therapy as the main part of their job, or indeed at all. Many of them work independently and unsupervised. Certainly, there are important aspects of the work done by some psychologists that are related to people’s health and well-being, but it is for good reason that psychologists do not call themselves healthcare professionals.
To shoehorn psychologists, psychotherapists and counsellors, with all their very different modalities, into the Health Professions Council would be to blur the distinct and individual interests represented within those professions. That would not only do those professions an injustice; it would also be to the detriment of the clients whom they serve. It is very difficult to see how, under its present modus operandi, the HPC could accommodate and champion issues that may be very profession-specific and often very subtle. One person sitting on the council representing a multitude of disparate professional interests is a formula for poor regulation.
The British Psychological Society, in presenting its proposals for a free-standing psychological professions council, points to a whole host of considerations which, to my mind, confirm that fear: the relatively weak provisions within the HPC for revalidation; the near-impossibility of transposing that revalidation system on to work settings outside the NHS in a way that was consistent and fair; the lack of relevance to psychology and psychotherapy in much of what the HPC calls its standards of proficiency; its inability to accommodate the key standards expected of professionals within all those disciplines without a major change in the way the council operates; the huge difficulty of trying to set up a complaints system that would work fairly inside and outside the NHS; and the inability of the HPC to recognise trainees.
Why, therefore, resist the idea of a separate and dedicated regulatory body for the psychological professions? It would be quite possible, and indeed desirable, to replicate within such a body those features of professional regulation which are or should be universal. But it would also enable the distinct and important differences between the psychological professions on the one hand and most healthcare professions on the other to be captured.
The Minister said on 21 February 2001:
“We want to make regulatory bodies smaller and more strategic to home in on essential issues of public safety. We want them to be faster to respond when things go wrong, to minimise the risk to patients from unsafe professional practice. We want them to develop meaningful accountability to the NHS, where that is appropriate, and to the public, who are the users of the services. We also want regulatory bodies to develop common approaches to common problems”.—[Official Report, 21/2/01; cols. 959-60.]
I say “Hear, hear” to that. Nothing in that statement by the Minister points towards any sort of artificial homogenisation of professional regulation. There is reference to “smaller and more strategic”, not large and unwieldy; the Minister spoke of meaningful accountability to the NHS where that is appropriate, and not, by extension, where it is inappropriate. He spoke of common approaches to common problems, certainly, but not so as to prevent individual approaches to individual problems.
Artificial homogeneity is to be avoided for the simple reason that it dilutes public protection. Alongside the noble Lord, Lord Alderdice, I urge the Government, even at this late stage, to leave open the possibility of an independent statutory regulator for psychologists, psychotherapists and counsellors when they publish their White Paper. That is the formula most likely to produce a sense of ownership among the professions. We may have waited many years to reach a resolution of these very difficult issues, but whatever resolution is reached has to work.
My Lords, this has been a very good if short debate. Like other noble Lords, I thank the noble Lord, Lord Alderdice, for allowing us to discuss these important issues. I pay my own tribute to him for the tremendous work that he has done over the past few years in bringing the professions together. That is very much appreciated. I say to the noble Baroness, Lady Barker, that I am prepared to eat my hand off. I hope that we can continue to call on the noble Lord’s services. He is in a unique position and I look forward to further discussions with him.
It is wonderful to have what I said six years ago quoted back to me. I suppose that I should get used to that. Noble Lords will know that I had no doubt then and I have no doubt now of the importance and requirement for statutory regulation of psychotherapists and psychologists. The protection of patients requires it. Many of those patients are vulnerable people who need the certainty of protection from malpractice or abuse. I also believe, as other noble Lords have suggested, that it is good for the profession. The more confidence the public have in it, the more likely people are to turn to these professions for help in the future. We have what could be a virtuous circle of agreement. This is the best form of regulation where ownership by the profession goes hand-in-hand with the public interest. That is what we must seek.
In response to the noble Earl, Lord Howe, six years does seem a long time and it is a great pity that further progress has not been made, but it has not been for the want of trying of many people—the noble Lord, Lord Alderdice, the professions and officials in my department. I want to pay tribute to all those who have worked so hard to try to find a solution. It is disappointing, but we must not let that deter us from doing everything we can to produce a solution in the future.
As my noble friend Lady Pitkeathley pointed out, we are due to publish a White Paper shortly. That inevitably precludes me from responding in some detail to one or two of the more contentious points made in tonight’s debate, but no doubt there will be a time when we can debate these matters in the future. I also say to the noble Lord, Lord Alderdice, that he is right to point out the risks to the public of a variable quality in the performance of people who come under the titles that we have been talking about. On the other hand, I echo the remarks of my noble friend Lady Pitkeathley in saying that many of the people concerned have given huge benefit to the people who have come to them. I count myself as one of those people. Just as we are clearly agreed that we wish to have statutory regulation and want to outlaw people who should not be in a position to offer poor and sometimes dangerous services to individuals, let us pay tribute to the great majority of people within the umbrella of the talking therapies who have done so much to help people.
I was very interested in the remarks of the noble Baroness, Lady Bottomley, about the benefits of talking therapies. She referred to the work done by the noble Lord, Lord Layard, on cognitive behavioural therapy. Wearing my old hat at the DWP we were very interested in that work. She is right to refer to the number of people on incapacity benefit. The fact is that their life outcomes are very poor and the longer you are on IB the harder it is to get off. If you have been on it for two years, you are more likely to die or retire than ever to get back into work. Discussions are going on in the Government in relation to that report and to the benefits of cognitive behavioural therapy.
I now come to the divisions that have been referred to by the noble Baroness, Lady Barker, and other noble Lords. The noble Lord, Lord Alderdice, referred to the discussions that have taken place being long term, difficult and frustrating. But as the noble Baroness, Lady Bottomley, indicated, there are very legitimate reasons why these should be difficult and perhaps frustrating discussions. I want noble Lords to understand that I am sympathetic to some of the difficult issues that a number of the therapies face in talking about regulation. I pay tribute to the work that they have undertaken over the past six years.
It is important to state what the Government understand by statutory regulation. It exists to protect the public from poorly performing practitioners and does this essentially in three ways: first, by setting standards of practice, training and conduct; secondly, by registering those who have trained and are competent and can demonstrate that they are of good health and character; and thirdly, by operating a system to investigate and impose sanctions against registrants who are found to be unfit to practise. Limiting regulation to a system which addresses conduct and health issues alone will not protect the public from practitioners who are not competent. Standards of practice should reflect what competent practitioners can be expected to know and do at a threshold level when they are first qualified. While the professional role is clear-cut and well established for applied psychologists, the position for psychotherapists and counsellors is less so.
Many professional bodies active in the field of psychotherapy and counselling have developed different theoretical models, as we have heard. My officials have worked with those bodies since 2001. It is noticeable that many of these bodies have very different ideas about what constitutes good practice. Therefore, it is very difficult to get any acceptance of leadership from within the field, on the grounds either of lack of knowledge or appreciation of each other’s approach.
In 2004 my department funded two umbrella organisations, the British Association for Counselling and Psychotherapy (BACP) and the UK Council for Psychotherapy (UKCP), to map training courses and the standards applied to them as a way of identifying training for different roles. This was unsuccessful in identifying the content of courses or scope of practice of roles although it provided valuable information on the number and classification of training courses. Many organisations in the field were unwilling to share details of their training with each other. We engaged Skills for Health to co-ordinate a competence framework. It launched its competence framework consultation in December last year and it is due to end on 23 February.
As a result of the competence-based role identification, we may find that some practitioners who are currently called counsellors do the same job as psychotherapists and should be regulated as such. We may also find that there are roles at other levels, and some may work in managed and supported environments which may not need statutory regulation.
My officials began talks on a draft order with the British Psychological Society in 2003. The talks lasted two years and produced an order which was issued for consultation in March 2005. Noble Lords will know that the BPS rejected those proposals, first, because it wanted a separate psychology council and, secondly, because it rejected its previous position, which was that only those working in applied fields of psychology would be regulated. The Government’s position is that we need regulate only those whose practice warrants it because of the risk to the public if their practice goes wrong. The BPS called for other types of academic and research psychologists with theoretical training only to be registered. Thirdly, the BPS wishes to protect the generic title “psychologist” and set generic standards which could not be met by those without practical training. However, if we legally restrict the title “psychologist” to those who can demonstrate practical and theoretical competence, we would unfairly criminalise many with a legitimate claim to use the title.
There is an analogy here with the legal profession. Many eminent academic lawyers have every right to call themselves lawyers but because they have not had vocational training they cannot call themselves solicitors or barristers. I raise those as some of the issues that still need to be confronted.
We have carried out a major review in the past two years of the regulation of health professions. We will shortly be publishing a White Paper, which I cannot anticipate, but I hope it will pick up some of the issues that the noble Earl, Lord Howe, has raised, such as revalidation. In dealing with the talking therapies, we are dealing with professions outwith the National Health Service and healthcare. Clearly, in the whole future of health regulation, we have to address the diversity of provision that is developing in the health service and in the independent sector, which takes us back to some of our earlier debates. I cannot comment on the questions raised in relation to the Health Professions Council; to do so would anticipate the White Paper. However, I understand what noble Lords are saying to me tonight. I say to them that I do not think we should underestimate the very good work that the HPC has undertaken since its establishment; nor that it registers and regulates many professional people who practice outwith the National Health Service. I understand that there will be further debate in that area.
I cannot comment at this stage on what the noble Baroness, Lady Barker, said about lay people. I take it from her remarks that she is not against a sizeable proportion of lay people being involved in the regulation of professional people. I hope that the White Paper may have something to say to address the very interesting point that she raises on dual regulation.
In conclusion, this has been an excellent short debate. We are all agreed that regulation of the talking therapies is a very important matter; I regard it as very important indeed. There will be issues to discuss on what is in the White Paper. I understand the issue about the Health Professions Council and the desire of some to have a separate council. That will have to await further discussion. What is not in doubt is the department’s willingness to engage with the professions as much as possible or our debt to the noble Lord, Lord Alderdice, for all the work that he has done in the past, and in anticipation of the work that I hope he will do in the future.
Corporate Manslaughter and Corporate Homicide Bill
Consideration of amendments on Report resumed.
16: After Clause 3 , insert the following new Clause—
(1) A court before which an organisation or person is convicted under this Act may make an order that the organisation makes public in a manner and form to be decided by the court details of any or all of the following—
(a) the offence of which the organisation or person was convicted; (b) the sentence imposed; (c) any measures to be taken by the organisation to reduce the likelihood of its committing further offences; and (d) any other matter relating to the offence or sentence which the court considers appropriate. (2) An organisation which fails to comply with an order under this section is guilty of an offence and liable on conviction on indictment to a fine.”
The noble Baroness said: My Lords, in Grand Committee there was a full discussion on naming and shaming, as proposed in an amendment tabled by the noble Lord, Lord Hunt of Wirral, and in my amendment. The amendments sought to give power to the court to publicise a conviction. Our amendment spells out not only that there should be naming and shaming, but the steps that must be taken to try to ensure that there is no recurrence. We believe this to be extremely important. The public have a right to know, in a case in which a death has occurred, not only that those liable have been convicted and have paid the appropriate penalty, but that steps are being taken to ensure that a similar incident is unlikely to happen. The impression that I received on Report was that my noble friend the Minister was quite sympathetic to the points that we raised, and he said that he was considering carefully the suggestions that had come forward. I therefore await with interest his response to the amendment today. I beg to move.
My Lords, I have added my name to the amendment, and I regard it as a very important matter. I very much hope that the Minister will be able to tell us that the Bill will be firmed up on the question of making it clear to the public who has failed in regard to these essential matters of safety at work. I support the amendment very strongly.
My Lords, I pay tribute to my noble friend because she has spoken persuasively in the past about the desirability of having a sanction of this sort. As a result of the arguments put forward by my noble friend and others, including in another place, we have been persuaded that adverse publicity orders would be a powerful addition to the package of sanctions in the Bill.
We have tabled Amendment No. 38 in the name of my noble friend Lady Scotland, and we shall come to it later. The noble Lord, Lord Hunt, has also tabled Amendment No. 29 but, as it happens, they are not grouped together. I shall speak in more detail about Amendment No. 38 when we reach it, but I hope that my noble friend will accept that we believe it achieves what she is looking for from her amendment. In that respect, I hope that it will also respond to what the noble Lord, Lord Wedderburn, has asked for. So, if my noble friend is content to be patient to that extent, I invite her to withdraw her amendment at this stage and we shall deal with the detail of the government amendment when we get to it.
My Lords, I thank my noble and learned friend for that response. I am very glad to learn that the Government have taken seriously what has been said on both sides of the House on this issue. I am therefore happy to withdraw my amendment and await with interest what he has to say in support of his. Perhaps the noble Lord, Lord Hunt of Wirral, is moving in the same direction. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Military activities]:
17: Clause 4, page 4, leave out lines 31 to 33
On Question, amendment agreed to.
Clause 5 [Policing and law enforcement]:
18: Clause 5 , page 4, line 43, leave out paragraph (c)
The noble Lord said: My Lords, I shall speak also to Amendment No. 19. Amendment No. 18 would cancel the blanket exemption given to the police services in respect of the duty of care owed to members of the public in the carrying out of policing or the policing of law-enforcing activities. Amendment No. 19 seeks substantively to redefine the duty of care owed by the police towards members of the public and the separate duty of care owed to its own employees in respect of hazardous training.
Proposed new subsection (3) of Amendment No. 19 sets out the parameters of care that would be owed by the police force to the public and to its own employees undertaking hazardous training. Proposed new subsection (3A) would ensure that, before returning a guilty verdict, the jury would have to be satisfied that there had been a gross breach of a duty of care—that a body’s conduct had fallen far below what could reasonably be expected in the circumstances. That consideration would be circumscribed by the factors that the jury would have to take into account under paragraphs (a) to (d) of subsection (3A)—namely, the nature of the activity or training and the context in which it was performed; other relevant duties to which the organisation was subject; resource constraints; and public interest considerations.
I believe that that is a fairly comprehensive list of mitigating factors, and rightly so, for the purpose of the amendment is not to turn the police service or anyone within it into a scapegoat or to proscribe the extent to which it can carry out hazardous activities. Rather, it is intended to ensure that the admirable aim of the Bill to provide an incentive not to carry out functions in a grossly negligent manner would also apply to the police service.
The Minister will recall—I think that I mentioned it in Committee—the 2000 agreement between the Association of Chief Police Officers, the Health and Safety Executive and the Home Office, which established that the Health and Safety Executive should inspect training areas where hazardous training is being undertaken. The clear principle behind that agreement was that, while one could reasonably expect the training on the day to be hazardous to a certain extent, there was the possibility to mitigate that potential danger through thorough preparation. The amendment would not enable a prosecution of a police force when an individual had died as a result of the necessarily hazardous nature of compulsory and necessary training, but it would ensure that where training that need not have been so hazardous in nature has been provided in a grossly negligent manner, resulting in a death, the body responsible could be held to account.
The broad range of mitigating factors seriously limits the application of the offence to all hazardous training. Its sole function is to enable a judge and jury to determine whether in so far as an organisation were able, in its capacity as an organising body corporate, to seek to prevent a death in given circumstances, it did so. I believe that is not an unreasonable request and I hope that in its new, slim-line, simplified form the Minister will at least be able to consider the amendment. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Henley, for the way in which he has moved the amendment. I accept that noble Lords opposite have moved on from their earlier position on this matter and have adopted what one can fairly describe as a more novel approach.
Clause 5 provides exemptions for the police when they are engaged in operational activities. The exemption also extends to other public authorities that engage in policing activities. Our starting point for this exemption was to look at the situations where the civil courts have decided to impose duties of care on the police. The civil courts have exercised great caution over making judgments about how and when the police should have acted. Having considered this carefully, we took the view that they were right and followed that in framing the exemption in the Bill.
The exemption in subsection (3), which the amendment tabled by the noble Lords, Lord Hunt and Lord Henley, would remove, excludes policing and law enforcement activities generally, but does not exclude duties owed as employer and occupier in those circumstances. The civil courts have taken a cautious approach to extending duties of care to the police when they are engaged in operational activities; for example, they have declined to extend duties of care to situations where the police have failed to catch serial killers. We believe corporate manslaughter merits a similarly cautious approach.
There are two main reasons why the courts have been cautious: first, that the courts may be ill equipped to judge certain decisions; and, secondly, that to expose the police to liability for decisions about police operations could seriously distort their priorities. Those arguments are especially relevant to the type of case where the police are being called to account for a failure to protect the public from violent people. For example, in such a circumstance, the courts would have to consider all the reasons why the police did not act, including weighing up the relative seriousness of the other operations that the police were dealing with at the time and whether the police had correctly prioritised their staff and resources. We do not think that the courts have the right level of expertise to engage in that sort of evaluation, especially where there are no objective standards by which to measure issues such as health and safety.
We are also concerned that the imposition of liability for manslaughter might make police forces act in an overly defensive way. The issue of being risk averse was made in an earlier debate by the noble Lord, Lord Imbert. This could result in a shifting of priorities to crimes where injury to the public might occur, no matter how slight the injury or how small the risk; for example, from dealing with burglaries to attending every incident of a threat to kill, no matter how unlikely the threat.
I recognise that these arguments carry particular force when considering holding the police to account for failures to prevent killings, where the label of manslaughter would also seem especially inapt. However, we do not think it is straightforward to distinguish this type of policing operation from another where the case for an exemption may be less strong—errors of commission rather than omission. The police do not engage in operational activities except when fulfilling duties to protect the public and enforce the law, where operational choices need to be fairly made. Targeting proactive errors rather than failures might encourage the police to prefer inaction over decisive intervention. We do not want that, so we have drawn a clear line around all policing and law enforcement activities and carefully excluded them from the scope of the offence.
The noble Lords propose an alternative solution that would ensure juries take into account the particular circumstances the police find themselves in—including the nature of the operation, resource constraints that applied at the time and other public interest considerations—when assessing whether a breach has been gross. Although this might in some respects appear an attractive proposition, it is not practical or realistic to expect the prosecution to be able to put before the courts all the considerations that the police had to take into account when balancing their resources in order to deal with any particular incident. Nor would such a solution give the police the clarity they need in terms of when the offence will apply to them. We have been careful to ensure that potential defendants are clear about the circumstances in which they may become liable for this offence. For the police, there are circumstances where no duty of care would be found by a civil court but the position under the criminal law would be uncertain. This very uncertainty could lead the police to act in a risk-averse way, with all the attendant dangers.
On the amendment about hazardous training, the police have to undergo the hazardous training to prepare for dealing with serious disorder. The example used in Grand Committee was where the police experience real petrol bombing in training to deal with riots. The police must be able to experience that sort of training to fully prepare them for the unfortunate but occasional events which exist as a real threat on our streets. That does not mean, however, that all hazardous training undertaken by the police should be excluded from the offence. As the noble Lord, Lord Henley, pointed out in Grand Committee and this evening, there is an agreement between ACPO and the Health and Safety Executive about how the HSE’s role in police hazardous training generally operates. In general, hazardous training should come under the offence, and as the Bill is drafted it will do so.
To take two examples from the Met Police’s book of remembrance for officers, two officers are recorded as having died in the course of training in the past 30 years. In one case, an officer drowned during underwater search training and, in the other, an officer was killed in a car crash during training with the stolen vehicle unit. In both cases the training was indeed of a hazardous nature. However, neither case would have been excluded on the basis of this exemption because, while hazardous, it was not being carried out to improve effectiveness in dealing with terrorism and other similarly serious circumstances.
This sort of training will often be focused on enabling officers to carry out hazardous activities as safely as possible in the circumstances, through evaluating risks and making decisions about whether to continue the activity. The difference between this type of training and riot training is about the extent to which the training environment can be controlled and yet realistic. Officers involved in riots cannot decide to stop because it has become too dangerous, so riot training will be in a less controlled environment. The use of real petrol bombs will also mean that outcomes are less predictable. We do not want the police and other law enforcers to undertake training which is artificial and avoids risky situations so that the first time the police experience a riot is in a genuine riot. That would be counter-productive and put officers at greater risk because they will be unprepared for dangers.
To summarise, the offence is fundamentally about the proper management of health and safety, not the adequacy of the way public bodies discharge their statutory responsibilities. That is not, of course, to argue that police decisions are always right. They may and do get things wrong. When they do, they can be held to account by the Independent Police Complaints Commission, independent inquiries and, of course, through the tripartite arrangements with police authorities and the Home Secretary. Individual officers are also fully subject to the criminal law, but extending criminal liability over operational matters to the police as a body is unnecessary and could distort policing priorities in a damaging and counter-productive way. For those reasons, we continue to resist the noble Lord’s amendment, clever though it is.
My Lords, I am very grateful to the Minister for giving us that long explanation of a relatively brief amendment. I thought that we were putting forward a simple and fairly small improvement to the Bill, but the Minister does not accept that. It is probably too late to take it any further. I am grateful to the noble Lord for taking us through all the points that those advising him think we ought to be taken through. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 19 and 20 not moved.]