Grand Committee

Grand Committee

Monday, 15 January 2007.

The Committee met at half-past three of the clock

[The Deputy Chairman of Committees (Lord Tordoff) in the Chair.]

Corporate Manslaughter and Corporate Homicide Bill

(Second Day)

The Deputy Chairman of Committees (Lord Tordoff)
I have, as usual, to make the statement that if there is a Division in the Chamber when we are sitting, the Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.

Clause 2 [Meaning of “relevant duty of care”]:

Lord Razzall
moved Amendment No. 22:

22: Clause 2, page 2, line 16, after “any” insert “duty imposed on it by a statutory provision listed in Schedule 1A or any”

The noble Lord said: The amendment, in my name and that of my noble friend Lord Lee of Trafford, raises an important point of principle that the Committee must address. It would allow organisations to be prosecuted for corporate manslaughter where a person is killed as a result of a gross breach of a specified range of statutory duties. The list of statutory provisions set out in proposed Schedule 1A is intended to be not exhaustive but illustrative. It would be open to noble Lords to add statutory provisions; I suspect that the Health and Safety at Work etc. Act 1974 will spring to the minds of a number of noble Lords.

At present, the offence is limited to the issue of gross negligence. If an organisation does not owe a relevant duty of care, as defined in Clause 2, to a person whom it kills, it cannot be guilty of corporate manslaughter, no matter how serious its failings. The Government have argued that it is necessary to link the offence to a serious failure to perform existing legal duties and that it would be unfair to prosecute an organisation for failing to do something that there was no legal obligation to do in the first place. For this reason, it has restricted the application of the offence to cases in which a duty of care in negligence is owed by the organisation to the deceased.

In Committee in another place, Liberal Democrat Member of Parliament Edward Davey said that it seems rather odd that, if a company breaches a statutory duty and in so doing causes a death, it would not be guilty of the offence of corporate manslaughter. That would seem odd to many. It seems that statutory duties are well understood by companies. Mr Davey suggested that this was not a question of making a new statutory duty and that we were always talking about statutory duties passed by Parliament. The Minister in another place argued against our proposal, saying that it would cause too much uncertainty if relevant duties of care covered all duties owed by statute. He said:

“The amendments … seek to extend the definition to underpin the offence with any duty, whether owed under statute or the law of negligence. That would not be sensible. The reason for linking the offence to the existence of a duty of care in the law of negligence is to provide certainty about when the new offence might apply”.—[Official Report, Commons Standing Committee B, 19/10/06; col. 42.]

That was a perfectly valid point, which is why the amendment suggests that the specific statutory duties provoking the possibility of a conviction for corporate manslaughter should be set out in the Bill, so that there can be no uncertainty about the obligations under which an organisation would be placed.

A slightly more subtle point arises from the amendment, which I am grateful to have had drawn to my attention by Liberty. Clause 2 as drafted operates as an exemption of liability, albeit one that is far from obvious to someone who is not a specialist in the law of negligence—not that in Committee we have been lacking people who are specialists in the law of negligence, although some of them are not here this afternoon. The Bill limits “relevant duty of care” to a duty that the courts have determined to exist in the context of claims for damages,

“under the law of negligence”.

This operates as an exemption because the courts have decided that public bodies do not owe duties of care in negligence in a wide range of contexts. For example, as the law stands, no duty of care in negligence is owed by a fire brigade to respond to an emergency, and the police owe no duty of care to individual members of the public to apprehend a criminal, to investigate crime or to maintain public order. Accordingly, even if the express exemptions in the Bill were removed, it would often be impossible to prosecute a public body for the offence because no duty of care in negligence would exist.

Extending the relevant duty to those that exist under the statutory provisions listed in a schedule to the Bill would, to some extent, address this concern. Some of these statutory duties would, unlike duties under the law of negligence, apply to public bodies. This amendment would enable Parliament to decide which statutory duties imposed on public bodies should potentially give rise to liability for this offence and which should not. The basic principle that the amendment would enshrine in the legislation is that bodies can be prosecuted for the offence of corporate manslaughter not only if they are in breach of a relevant duty of care as defined in the law of negligence, but also if they are in breach of certain specified statutory duties. I beg to move.

Lord Hunt of Wirral
I look forward to hearing the response of the Minister to this group of amendments. It is helpful to have a debate about the duty of care in this legislation. I agree with the noble Lord, Lord Razzall, that we need to explore the extent to which breaches of statutory duty should or should not be included in the new offence.

Linked with Amendment No. 22 are Amendment No. 28, which would leave out subsection (3), Amendment No. 30, which would leave out subsection (5), and Amendment No. 33, which would leave out lines 26 to 28 on page 3. Those amendments, which are in my name and that of my noble friend Lord Henley, were tabled to press the Government to a bit more explicit—apart from the general hostility expressed in the other place—about why they are approaching this new offence in this way.

Lord Wedderburn of Charlton
Amendment No. 32, which is part of this group, illustrates a point that is, in a sense, supplementary and perhaps goes a little further than the noble Lord, Lord Razzall, went. If relevant duties of care are to cover all those types of negligence in respect of which some relevant party is killed, the precise legal foundation of the duty of care is surely no more than a lawyer’s trick. Surely the Bill should cover all types of negligence where a duty is owed by the relevant corporation in respect of the breach of which someone has been killed.

This is a small but important point in respect of what the noble Lord, Lord Razzall, said. In Clause 2(1), it is clear that the duty need not be owed to the victim because Clause 2(1)(a) requires that the duty is owed to,

“employees or to other persons working”,

and it is plainly contemplated that they may well have been injured or killed in respect of the event, whereas paragraphs (b) and (c) do not specify that the duty must be owed to anyone; there is no specification that it be owed to employees or the victim. Clause 2(1)(b) refers to a duty owed as occupier and Clause 2(1)(c) refers to a duty owed in connection with a long list of factual matters, where the duty could be owed in a variety of ways.

That brings me back to Amendment No. 32, which is tabled in my name and that of my noble friend Lady Turner, relating to duty owed under the common law of negligence or in respect of a statute. I agree with the noble Lord, Lord Razzall, that that must be covered, although the Government might consider whether new Schedule 1A, inserted by his Amendment No. 94, covers every relevant statute. It cannot matter if the duty of care in respect of which negligence has arisen is imposed on the defendant by contract, by fiduciary obligation or by virtue of office, which are the three possibilities thrown up by Amendment No. 32. We need a duty of care on whatever base in law. I take it that that is the thrust of the amendment tabled by the noble Lord, which I support.

Lord Bassam of Brighton
Before I respond to the noble Lord, Lord Razzall, I shall start with an apology and a welcome. My noble friend Lady Scotland has been called away to see her father, who is unwell. I am sure most Members of the Committee will appreciate that he lives in Dominica in the Caribbean, so the noble Baroness will not be with us today or for the rest of this week, and I suspect that she may not be here for the first part of next week. The welcome is to the noble and learned Lord, Lord Davidson, who will assist on the Bill, for which I am very grateful. He will do a fine and splendid job, not least because he knows a lot more about the law on these matters than I do.

The noble Lord, Lord Razzall has moved an important amendment. It is grouped with other amendments that explore the link between the new offence and duties owed in the law of negligence. The amendments tabled by the noble Lord, Lord Razzall, would extend the offence to a range of specific statutory duties. Like my colleagues in another place, I am not persuaded that this approach would add to the law. Gross negligence manslaughter, which is the starting point for this offence, has been linked to the duty of care in the law of negligence for some time. That approach was novel when the Law Commission expressed some hesitancy about it in its original report in 1996, but it has been followed by the courts since then without significant difficulty. Specific issues have arisen in the courts—for example, where a person might have a defence to a cause of action in negligence because of joint unlawful conduct—and I shall return to that shortly. Suffice it to say at this stage that issues of that nature do not represent insurmountable obstacles to relying on the common-law duty.

Our starting point is to wonder whether there is a pressing problem with this aspect of the existing offence that needs to be addressed. There needs to be clarity about where the offence will apply, and the common-law duty of care provides a long-established framework for establishing the circumstances in which an organisation ought to be liable for not taking reasonable care for the safety of others. On the other hand, statutory health and safety duties are rarely owed to specific people, or at least rarely help to identify to whom a particular obligation of care is owed. Regulations may, for example, require a train company to take certain specific safety measures, but this is a general obligation, not a duty owed to particular people. Linking the offence to obligations might be appropriate if the offence were recast along the lines suggested in the other place—an offence of causing death through the breach of health and safety legislation. But manslaughter is not just about failing to meet a particular regulatory standard. It is the gross breach of an obligation that an organisation owed to a particular person to ensure their safety.

15:45:00

The common-law duty of care provides a well established way of doing that in a way that statutory health and safety regulations are not designed to do. Those statutory provisions flesh out the standards that organisations should have met. That is why Clause 8 requires the jury to consider the extent of breaches of health and safety legislation. However, the aim of the provisions is to impose broad duties on employers and others to consider the risks that their activities give rise to and to take adequate precautions against these. It does not assist that aim for the duties to be prescriptive about the sort of circumstances in which a prosecution ought to be brought. The general and flexible nature of these duties is a great advantage for their use by regulators, but as such they do not offer the clarity needed for an offence of this seriousness.

There are also inevitable problems with drawing up a proper list of relevant legislation. The noble Lord, Lord Razzall, said that it might be expanded to include statutes such as the Health and Safety at Work etc. Act or those governing product safety—those should perhaps be in the presentational list. On the other hand, statutes such as the Activity Centres (Young Persons’ Safety) Act 1995 and the Gangmasters (Licensing) Act 2004 do not appear themselves to impose statutory duties. To include the Human Rights Act in any such list would represent a novel and very wide extension of the remedies available for breaches of human rights obligations, making public bodies criminally responsible for their breach.

The noble Lord, Lord Hunt, in speaking to his Amendments Nos. 28, 30 and 33, which properly probe amendments made by the Government in another place, asked for further explanation. That is perfectly reasonable and quite proper. I would agree with the noble Lord if he said that he did not feel that there was sufficient discussion of these matters in another place. In pre-legislative scrutiny and in another place, some concern was expressed that the link with the law of negligence might mean that the offence would not apply in certain cases because a person was not liable in negligence. The example was given of the case of Perry Wacker, the Dutch lorry driver who was prosecuted for manslaughter when 58 Chinese illegal immigrants died in a container on his truck. His defence was that he and the victims were engaged in unlawful conduct and he could not be sued by them for damages. That argument was rejected in the Court of Appeal.

The case raised the question of whether the courts would be able to take a similar approach with the new offence. We were satisfied that that would be the case. The offence of manslaughter at present is based on circumstances where a duty of care is owed under the general principles of the law of negligence, as the new offence requires, and the existence of a defence of illegality did not frustrate the Wacker case. However, in a spirit of helpfulness, for which the Government are well known, we were happy to make the point clear on the face of the Bill, and moved amendments on Report to achieve that objective. These were drafted in terms of people being jointly engaged in unlawful conduct, which were the circumstances in the Wacker case.

As well as clarifying that point, the amendments also deal with circumstances where claims in the law of negligence have been replaced by provision for strict liability—for example, the liability of airlines under the Carriage by Air Act 1961. Where a duty of care would have been owed but for that statute, we would want the offence to apply where a company’s gross negligence caused a person’s death.

Similarly, the amendments make it clear that a defendant cannot seek to defeat the offence by claiming that the victim voluntarily took on the risk involved and therefore that the defendant owed him no duty of care. That might be the sensible approach in terms of allowing damages and it might raise, in a criminal case, questions of causation as well as an assessment of whether an organisation’s conduct was grossly negligent or not. However, we do not think that it would be right to exclude criminal liability entirely on this basis.

We discussed in Committee last week some aspects raised by the amendment tabled by the noble Lord, Lord Wedderburn, which would widen the definition of the law of negligence so that it covered duties arising from a contract, office or fiduciary obligation—the noble Lord said that this would cover all types of negligence. That is an ambitious and, in essence, laudable objective. However, there are difficulties with this. As I explained in the context of Amendment No. 13 last week, we do not accept the need to extend the offence in this way. We have given the matter some further thought, but we remain unpersuaded that there is a mischief that needs to be addressed.

The essential characteristic of the offence is a gross breach of a duty of care. As it relates to corporate liability, the offence is based on gross breaches of a duty of care owed by the corporate body rather than by individuals within it. Whether office holders or those with fiduciary obligations have been negligent will be important when assessing whether there has been a management failure in the organisation, but we do not want to make proof of any level of fault against individuals a condition of the offence. The essence of the offence should be that an organisation is in breach of a duty that it, as an organisation, owed. We are not minded, therefore, to extend the offence to duties that are owed primarily by individuals such as those that arise from offices or fiduciary obligations.

That leaves the question whether the offence should extend to gross breaches of contractual duties. Again, we are not persuaded at this stage. Negligent performance of a contract giving rise to injury may take place. However, the law of contract is primarily a way of regulating conduct between individual contracting parties, and poor performance of the contract gives rise to a contractual remedy. Should negligent performance of a contract also constitute a crime? I am afraid that I cannot offer the noble Lord much comfort on this, as I do not think that that should be the case. Where a person has been injured or killed as a result of the activities of an organisation, questions of contractual duties and duties of care in the law of negligence may overlap, as I am sure the noble Lord will accept.

I gave last week the example of a private hospital. A contract will exist between the patient and the hospital for whatever treatment is being provided, which gives rise to contractual obligations as well as common-law duties to care for the patient. Similarly, employers will owe duties to their employees in terms of their contract, but they are subject also to a common-law duty to provide a safe system of work. That arises independently of the contract and represents a general obligation on all those in the position of employ relating to safety. Obligations of that nature should underpin this offence. They have been the basis of gross negligence manslaughter for some time. To extend the offence to gross contractual breaches would amount to a considerable change of the law and, for that reason, we do not agree that it would be appropriate.

I hope that noble Lords have found helpful that lengthy exposition on the amendments, even if they do not entirely agree with our position on them. I have tried to set out as clearly as I can our thinking on the issue. I encourage noble Lords not to press their amendments.

Lord Lyell of Markyate
As the Minister knows, some of us have anxiety about the structure of the Bill, as the Government have been careful to limit the duties of public authorities to those relating to their position as an employer or to their position under the Occupiers’ Liability Act as occupiers of premises. That is a narrow limitation. When one looks down the list of authorities in Schedule 1, it is possible to imagine—I am sorry that I have not been more imaginative than this—that there must be a significant number of activities in which bodies such as the Department for Culture, Media and Sport, the Department for Education and Skills, the Department for Transport, the Department of Health and so on are obliged to engage that might put people at very serious risk, including that of death, if they were carried out improperly and, sadly, with gross negligence. Whereas any other body in this country would be liable to a charge of corporate manslaughter, these public authorities would not be. I can anticipate this causing considerable concern down the road.

I shall continue, in Committee and on Report, to rack my brains and hope that somebody realises my incompetence, reads our speeches—if anybody ever does—and comes forward with suggestions. I am quite sure that there is a gap here. If the Minister does not agree, or if he does not think that there is a problem, why are he and his advisers so keen to exclude this liability? If he thinks that there is a problem—the noble Lords, Lord Razzall and Lord Lee, mention a number of important statutory requirements—what is the justification for excluding a public authority? If the Minister cannot help now, perhaps he would ask those assisting him to enable him to reflect on this and help later. It is a serious point.

Lord Bassam of Brighton
The noble and learned Lord is both right and wrong. The offence is not strictly limited to employer or occupier duties for the Government, although I accept that it is in part. Most people would accept that these are difficult areas. We will deal with this point when we debate Amendments Nos. 24 and 25; I will then be happy to set out more of the Government’s argument and thinking, because that is a more appropriate place to deal with the matter. However, I acknowledge the point that the noble and learned Lord has raised.

Lord Wedderburn of Charlton
May I raise one small point which is meant to be helpful to the Government? The Minister has set out a series of rigid lines: the law of tort as opposed to the law of contract; the common law as opposed to statute; and the common law of negligence as opposed to various other sources. We are not here concerned with the breach of the duty; we are concerned with its source. The Minister will know as well as I do—I remember a previous Bill when this point was raised with him—that Ministers’ statements can have a serious effect on the way in which a court looks at the statute. Are the Government, for the final time, really taking this line based on a series of curious legal frontiers, or will the Minister think about it again? If he says that the Government will think about this again, it might not have that elevated status that would enable counsel to confuse the court by these lines in relying on Ministers’ statements.

Lord Bassam of Brighton
Ministers always think about things again and again; noble Lords such as the noble Lord, Lord Wedderburn, are for ever thinking up imaginative ways of asking the question. I have set out Government thinking and policy on this. It has been a developing area of law and will continue to be, over time. We think that we have the right balance. Noble Lords are entitled to take a different view, and I am sure that they will.

Lord Razzall
I have listened with interest to the Government’s position, as set out by the Minister. This is really a question of common sense. There was a problem at our previous sitting. Looking around this Room, I see all the people who have had the benefit of a legal education. I will not indulge in the sort of rudeness in which Lord Beloff used to engage on the topic of people whom he regarded as not having had the benefit of an Oxbridge education.

I am worried that I am in completely the same camp as the noble Lord, Lord Wedderburn, on this issue. On that basis, I am reflecting whether I am wrong, but I do not think that I am. Those of us in this Room who have trained as lawyers—I can count six who have done so, although there may be others who have failed to disclose it—will remember from studying the law of tort that the concept of a relevant duty of care, which we are asked to assume is the cornerstone of prosecution under the Bill, was developed in common law over a number of centuries in a series of random decisions. There was no logical brain sitting at the centre of the law that determined where a relevant duty of care emerged. It evolved totally randomly over the centuries, as the common law of this country does. In the Bill as it stands, we are being asked to accept by the Government that that random collection of relevant duty-of-care, common-law decisions should be the basis of the creation of this new criminal offence.

Cutting through to the commonsense approach suggested the other day by the noble Lord, Lord James, we are saying to company directors that they have to assess the concept of a relevant duty of care that has been built up over centuries, and they will have to get out Salmond’s Law of Torts to study what those relevant duties of care should be. The simple question of why a gross breach of a statutory duty should not be an offence seems to be rejected by this Government, and I fail to understand why that should be. I shall read with interest in Hansard what the Minister says, but I am sure that we shall return to this matter on Report. In the mean time, I beg leave to withdraw the amendment.

16:00:00

Lord James of Blackheath
I—

A noble Lord
The noble Lord cannot speak.

The Deputy Chairman of Committees
We are in Committee and Members of the Committee can speak until the amendment is withdrawn. I have not yet sought the leave of the Committee to have it withdrawn, so if the noble Lord wishes to add something, he is entitled to do so.

Lord James of Blackheath
I was going to say that the Minister made a passing reference to a very important point raised by the noble Lord, Lord Wedderburn, on the first day of Committee last week, which he cast like a fly over the water but no fish bit. It was a very important point that should be borne in mind. Both the Minister today and the noble Lord, Lord Wedderburn, made reference to the fiduciary responsibility within a board, but, if I heard them correctly, they presented it as though it were a means by which there should be a duty of care in respect of fiduciary responsibility.

I should like to reverse the point for Members of the Committee. I believe that in this case, and many others, fiduciary responsibility will be fielded by boards as a mitigation and justification for committing manslaughter. Perhaps I may put a real case to the Committee—it is case C among my examples. We were diving in the Torres Strait between Port Darwin and Papua New Guinea and the wind was so bad that we could not complete a contract by midnight, without which a £3 million penalty would be imposed on me, which I could not pay. I had a fiduciary responsibility to my shareholders not to incur a £3 million penalty, so I dived on and killed a diver. My justification for that would be that I could not bankrupt the company for £3 million and so I had to carry on diving and hope that the risk did not materialise. It did.

That is the reverse of the point that I think was raised by the noble Lord, Lord Wedderburn, and the Minister. By the way, I am not pleading guilty to murder because there were other justifications in that case which would cause an unnecessary complication at the moment. However, I think that the issue of fiduciary responsibility will be hugely important as a potential mitigating factor in many boards’ defence, and it needs to be borne in mind as we go forward.

Lord Wedderburn of Charlton
I think that the noble Lord’s request to withdraw the amendment should be accepted by the Committee.

The Deputy Chairman of Committees
Does the noble Lord wish to withdraw the amendment?

Lord Razzall
With regret, yes, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees
In calling the next amendment, I draw the Committee’s attention to the fact that, if it were agreed, I would not be able to call Amendments Nos. 24 to 27 because of pre-emption.

Lord Razzall
moved Amendment No. 23:

23: Clause 2, page 2, leave out lines 17 to 29 and insert “duties owed by it under the law of negligence to any person”

The noble Lord said: This is a straightforward amendment for which I am grateful for the advice given to me by the Association of Personal Injury Lawyers. The substance of the amendment is that the “relevant duty of care” provision—and again we come back to that concept as enshrined in common law over the centuries—as specified in Clause 2(1) is too narrow and will inevitably lead to some deaths caused by negligence being exempted from the scope of the proposals. Therefore, the substance of the amendment is that a company should owe a general duty of care to anyone whom it kills negligently, regardless of whether they are in one of the groups specified in the Bill. The listing of various categories of duties in paragraph (c) will inevitably prove limiting, as it is not possible to create an all-encompassing list. As drafted, it will automatically exclude other categories of death, which would lead inevitably to some victims’ families being denied justice. The amendment is straightforward and would widen the extent of the relevant duty of care simply to any of the duties owed by the company under the law of negligence to any person. I beg to move.

Lord Hunt of Wirral
One theme that has run through the contributions that have been made in Committee is the importance of getting the balance right in this legislation, so that it is even-handed and so that the measures are seen to be fair and just, as well as simple and easy to understand. I hope that the Minister will be able to reassure us on this. I would be grateful if, in doing so, he could bear in mind the case that was raised by my noble friend Lord James, which he did not have the opportunity to answer in the previous debate. It is as relevant in this debate, so I hope that the Minister can respond to that point about practical circumstances, as it is in everybody’s interest that we get not only a fair and just law but one that everybody can understand in its application right across the board. We shall debate later the need for even-handedness between the public and private sectors, but the noble Lord, Lord Razzall, has done us all a service by simplifying everything and removing all these different examples to insert the words,

“duties owed … under the law of negligence to any person”.

We will shortly debate the question of members of the public, but in the mean time it would be helpful to have the Minister’s response.

Lord Bassam of Brighton
If the Committee will indulge us, we will give some further thought to the points raised by the noble Lord, Lord James.

I shall respond to the amendment moved by the noble Lord, Lord Razzall. The previous group dealt with the requirement that a relevant duty of care for the new offence be owed in the law of negligence. Amendment No. 23 in essence goes to the requirement that the duty of care falls into one of a number of categories of duty. It might be useful if I explained why we have chosen to provide categories of duty in the first place.

We would expect the question of whether an organisation owed a duty of care or not generally to be straightforward. For example, it will take little to establish that an individual was employed by a company and therefore was owed a duty of care; similarly, there is no argument that rail passengers are owed a duty of care by rail companies. So those relationships should be fairly straightforward. The duty of care in the law of negligence proceeds on the basis of established circumstances in which a duty of care applies, with general tests being applied if a case does not involve a relationship where a duty is already clearly established. These tests are based on the proximity of the relationship between the parties, the foreseeability of damage and considerations of whether it is just, fair and reasonable to impose a duty. We accept that the duty of care is a developing area of the law, especially in relation to the liability of bodies carrying out public functions. This affects not just Crown bodies, but all bodies in the wider public sector.

Given the seriousness of the offence, we think that there is merit in setting out more clearly where the offence will apply by marking out the types of activities that the offence is intended to cover. That will give certainty to organisations and the public about which situations are covered by the offence and will be of great benefit to investigators, as, in some cases, it will allow decisions to be taken early without considering detailed questions about the duty of care. 

The categories cover three types of duty: duties owed to those working in or for an organisation or company; duties owed in respect of the workplace; and duties owed in respect of a company’s activities. Categories relating to those working in or for an organisation and relating to the state of premises occupied by an organisation are largely straightforward and deal with a key aspect of the scope of the offence, which is the employer’s duty to ensure the health and safety of employees and the safe condition of work premises. In some jurisdictions, that is the extent of industrial manslaughter laws. However, we consider it right to go further and to cover duties owed to members of the public. The third category, covered by Clause 2(1)(c), is thus intended to cover other circumstances where organisations commonly owe duties to members of the public.

I shall not explore that category in depth at this stage because amendments have been tabled that will allow us to consider it in more detail. However, I make the point that the primary purpose of these categories is not to make substantive exclusions to the Bill. It is undoubtedly right that there will be certain activities that are not covered by the heads of activity set out in Clause 2(1)(c), but they will generally relate to matters where a duty of care is not owed or which are covered by exclusions to the offence. For example, regulatory activity on the part of government, such as the setting or enforcement of regulatory standards, would not fall into any of the categories, but public bodies are very unlikely to owe duties of care in that respect. Further clarity on this is provided in Clause 3. If there are particular examples of circumstances where a duty of care is owed and which appear to have inadvertently slipped through the net, we would be willing to look carefully at whether further provision is needed.

The principle that lies behind providing a list of categories is to provide a more readily accessible offence, the application of which can be resolved in many circumstances without detailed resort to the law of negligence. We think that that is a sensible aim. I hope that, having heard that explanation, the noble Lord will feel able to withdraw his amendment.

The noble Lord, Lord Hunt, asked me to make some observations on the comments made by the noble Lord, Lord James, on the earlier amendment. Those working in an organisation will have a range of duties, some of which may overlap or appear to conflict, but we do not accept that a duty to maximise returns for a company and its shareholders provides a basis for not operating safely. That is an absolute duty, and an organisation can be convicted of a criminal offence, for example, in respect of breach of health and safety obligations. That provides an overriding framework within which other duties, such as the fiduciary obligations of directors, operate. I think that that answers the noble Lord’s point, but the point itself is important and a key consideration for the company involved.

16:15:00

Lord James of Blackheath
The Minister has answered the point with such clarity that I can only ask that a similar clarity be conveyed in the Bill so that all may understand it equally.

Lord Bassam of Brighton
There is clarity in the Bill.

Lord Lyell of Markyate
I think that we are getting there; the Minister will probably tell me that he is going to give us a fuller answer when we debate a later amendment. We are still trying to tease out why, if public authorities engage in all the activities that are mentioned in Clause 2(1)(c), they will not be liable where all other bodies will be. That is an important gap; if the Minister would like to answer the point now, it would be delightful, but if he tells me that he will answer it soon, that will be adequate.

Lord Bassam of Brighton
We will come to that range of issues.

Lord Razzall
I, too, will read with interest what the Minister has said. The noble Lord, Lord James, is trying, quite effectively, to articulate what noble Lords should be trying to do with the Bill. At the moment there is a danger that it is simply a lawyers’ paradise which will not be understood by practical directors when they are sitting in the boardroom deciding what they should do. The thrust of our amendments—and, I suspect, the thrust of those in the name of the noble Lord, Lord Hunt—is, without being difficult, to simplify matters so they are much clearer. That is the thread running through these proposals. The noble Lord, Lord Wedderburn, who is not in his place, is trying to do that as well, although he is going further than some of us would. I hope that the Government will reflect on our amendments. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral
moved Amendment No. 24:

24: Clause 2, page 2, line 19, at end insert—
 “(aa) a duty 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: In view of those latter comments, I once again remind the Committee that I am a practising solicitor—

Lord Razzall
I included you in the magnificent six.

Lord Hunt of Wirral
I am also a partner in Beachcroft LLP and am as committed as the noble Lord, Lord Razzall, is to preventing this Bill being a lawyers’ paradise.

Amendment No. 24 would widen the application of the duty of care to apply to members of the public. The noble Lord, Lord Wedderburn, referred to this earlier in our deliberations today. Amendment No. 25 would insert the words “or provision” so that the duties of care owed under the law of negligence would apply when an organisation is supplying or providing the services. The two amendments are tied; Amendment No. 24 would ensure a direct application of the duty of care to members of the public, while Amendment No. 25 would ensure that where public authorities have contact with members of the public—for example, but not exclusively, in providing public services—they would have a duty of care towards the public.

As I understand it, Ministers and the Home Office have so far deliberately omitted the word “provision” from the Bill. The Minister in another place said,

“the term ‘providing’ covers a potentially wider range of activity and could include many situations in which no duty of care is owed. For example, it would extend to circumstances in which a service was provided to the public at large, such as when local authorities were working to cut crime. No duty of care is owed in that respect, nor is the activity being supplied.—[Official Report, Commons Standing Committee B, 24/10/06; col. 96.]

That sounds a reasonable argument, but my point is much more general. I see no reason why the duty should not apply to the public at large. It is surprising that the Government would argue that public authorities have anything other than a full duty of care towards the public. I know that many outside this place feel that this is just another example of how the Home Office has sought to include in the Bill numerous levels of exemption from liability for public bodies. The arguments of outside organisations, such as Liberty, are persuasive. I do not believe that it is necessary or acceptable to include such wide-ranging exemptions for the activities of government and the various agencies of government.

I am particularly concerned about the way in which Clause 2 acts—my noble and learned friend, Lord Lyell, has been probing this—indirectly as a wide-ranging exemption from liability. If it is decided that exemptions are appropriate, these should be clearly stated in the Bill, just as they are in Clauses 4 to 7, on which we shall be deliberating later. They should not be hidden away in obscure and legalistic questions of whether the words “provision” and “supply” appear in a definition of “relevant duty of care”. I agree with the noble Lord, Lord Razzall, in that respect.

I hope that the Minister will give us a fuller explanation of why we have differing levels of exemption. If we want a simple and even-handed law, this is moving in the wrong direction, unless the noble Lord can persuade us otherwise. I beg to move.

Lord Lyell of Markyate
I think that we are getting there, and I am looking forward to hearing the answer. It is clear that the reason why Clause 2(1) of the Bill is divided into paragraphs (a), (b) and (c) is so you can fill out everything except (a) and (b) as far as public authorities are concerned, but the Minister will no doubt explain that. He will appreciate that many of us in the Committee are not happy about it.

Lord Bassam of Brighton
In our previous debate, we considered the general proposal to set out certain categories of relevant duty of care, and I explained that the intention was primarily to provide a way of establishing whether a particular set of circumstances was within the scope of the offence without detailed recourse to the law of negligence.

Amendment No. 24 proposes an additional category of relevant duty—duties owed to members of the public who might be affected by the way in which employees or others working for an organisation perform their duties. The language used here reflects the way in which general statutory health and safety duties are drafted. Section 3 of the Health and Safety at Work etc. Act, for example, imposes a duty on employers to take all reasonable steps to ensure the health and safety of those not in his employment who may be affected by the conduct of his undertaking. I set out in an earlier debate why we did not think it suitable to base the offence on those duties as such. I appreciate that this amendment also probes the extent to which public authorities are covered by the offence in respect of duties that they owe to members of the public. Amendment No. 25 probes the difference between the “supply” and “provision” of a service.

Perhaps I can start with the question of the public sector. Concern has been raised in our debates that Clause 2 might not be adequate to extend the offence to duties owed by public authorities to members of the public. In particular, the concern relates to Clause 3(2), which deals with duties owed to the public when public authorities exercise exclusively public functions, which effectively limits the offence to employer and occupier duties for the public sector. I reassure the Committee that that is not the case. The concern is based on a far more extensive reading of “exclusively public function” than we intend. We are due to consider an amendment that will delete the exemption for exclusively public functions in due course, so at this stage we will not consider in detail why such functions should be exempt.

I can offer reassurance that the term certainly does not provide blanket cover for the activities of the public sector. In the first instance, the exemption covers activities that are carried out under the prerogative. That includes activities that are at the heart of state responsibility such as concluding treaties, conducting diplomacy and deploying troops overseas, or maintaining the peace in the United Kingdom. The exemption extends also to activities that by their nature require statutory authority. This does not exclude an activity simply because it is carried out on a statutory basis. The nature of the activity must mean that it can be carried out only with such authority. For example, the NHS provides medical services under a statutory framework, but medical treatment is not an exclusively public function. There is nothing intrinsic about medical treatment that requires statutory powers, and private organisations offer medical treatment independently. Examples of functions that are by their nature exclusively public would be the licensing of drugs, the issuing of driving licences and, at a local level, the granting of planning permissions.

This exemption does not cover an activity simply because performing it requires a licence. Selling alcohol requires a licence, but that does not make it an exclusively public function, because the nature of the activity—selling—does not require statutory powers. The phrase “by its nature” is intended to focus the test on the core part of the activity which is the public function. To put the test another way, can a private individual engage in this sort of activity without the use of statutory powers? Moreover, the exemption does not extend to activities that are ancillary to that function. While the keeping of people in custody is an intrinsically public function, secondary activities such as prison catering functions are not exclusively public functions and so would be within scope for the offence whenever duties of care arose.

How might the amendments alter the scope of the categories of duty? To understand why we prefer the categories as they stand, it might be helpful to explain what they are intended to cover. The Bill’s intention is to list circumstances in which duties of care will commonly arise. Thus, the categories cover the supply of goods and services, construction and maintenance operations, commercial activities and the use of vehicles, plant and equipment. The term “supply” is used deliberately. It is intended to cover the relationship between companies and their customers or those receiving their services. For example, train companies supply a transport service to their passengers, and plumbers and gas fitters supply a service to their customers. The term is apt not just for private enterprise but for the public sector, too, and would, for example, cover National Health Service bodies offering medical treatment or local education authorities in respect of schools. However, it would not further this approach to refer instead to “providing” a service or to include a wider category of duties where members of the public are affected by an employee’s activities.

The effect of the amendments would not be to underpin the offence with wider duties per se. The requirement would remain that a duty be owed in the law of negligence. The effect rather would be to capture a wider group of members of the public who are owed a common-law duty where that duty is not covered by one of the existing categories.

However, new categories would cover a potentially wider range of activity and could include many situations where no duty of care is owed. The noble Lord, Lord Hunt, made reference to one example, but they could also extend to the work of local authority staff in cutting crime. Other examples might be the way in which the police respond to a 999 call, or statutory inspectors enforce a regulation. However, it is highly unlikely that duties of care would be owed in these sorts of circumstances—a point that, to judge from his earlier comments, the noble Lord, Lord Hunt, would accept.

Although this sort of case would now be covered by a category of relevant duty, the test would still be whether a duty of care was owed in the law of negligence. So unless, exceptionally, that were the case, the offence would therefore still not apply—even if, when taken with other amendments, which appears to be the intention, specific exemptions were also removed.

16:30:00

On the other hand, in reaching a decision on the application of the offence, rather than being able to rely on the categories of relevant duty, investigators and prosecutors would have to rely in greater detail on the law of negligence. That would not assist swift decisions or necessarily foster transparency. Such an approach would also encourage strong pressure on investigators, and potentially speculative prosecutions, on the basis that the courts might be persuaded to move duties of care into what we could describe as novel areas. That would not be helpful.

Clearly, as I have indicated, there is an extent to which this proposal is designed to complement other amendments to the Bill—in particular, those to amend specific exemptions. In some cases, removing an exemption may not be enough because, even where a duty of care is owed, the particular circumstances may not be covered by a relevant category of duty of care. However, until we have considered particular exemptions, that is perhaps to put the cart before the horse. Even as a means of filling in a lacuna of this sort, the proposals appear to represent an unsatisfactory solution in respect of the wider effects that I have identified where it still remains the case that no duty of care is allowed.

That was a lengthy explanation. I hope that I have persuaded noble Lords that the proposals would not add practical value to the Bill, but would rather introduce a degree of uncertainty. For that reason, I hope that the noble Lord will withdraw the amendment.

Lord Lyell of Markyate
Before my noble friend considers withdrawing the amendment, I am getting worried. Can the Minister indicate clearly when he will tackle the substance of the issues that we are discussing? I thought that we were going to get to it this time. I am worried that we shall slip down through a few more amendments and the Minister will say that he has already covered it. We would all have to go back to read what had been going on to find out whether he had or not; we would almost certainly find that he had not.

The Minister will be familiar with Liberty’s brief, and will no doubt be well briefed on it. I will not read it all, but I remind him of the quotation therein from the Home Affairs Committee and the Work and Pensions Committee in another place, which concluded:

“We are very concerned by the exemption for exclusively public functions and are not convinced by the Government’s arguments for including in the Bill a blanket exemption for deaths resulting from the exercise of public functions. We do not consider that there should be a general exception under this heading since bodies exercising such public functions will still have to satisfy the high threshold of gross breach before a prosecution can take place, namely that the failure must be one that ‘falls far below what could be reasonably expected’”.
 

Liberty goes on to point out that we should trust the jury, who will recognise that you cannot ask for the entire budget to be spent on an absolute plethora of precautions; there must be balance and proportionality in all these matters. That is of concern to us. One does not want to put public bodies under undue pressure—again, it must be a matter of balance—but the reason for the complete exclusion has not been explained; rather, it has been wriggled around. I hope that the Minister will not regard that as unduly offensive; I am sure that he can clarify this better.

Lord Bassam of Brighton
Of course, I do not think that it was unduly offensive—it was a proper question. In responding to the debate, I was simply suggesting that the exemptions are not as narrowing as noble Lords have assumed them to be. The whole question of the position of public authorities is at the heart and core of the debates on this issue. They are not exclusively Clause 3 issues, although they will come up under Clause 3, and I shall leave it to my noble and learned friend Lord Davidson to respond more fully to that part of the story of the position of public authorities.

Lord Hunt of Wirral
I share my noble and learned friend’s disquiet about the present situation, but we will consider carefully what the Minister has said. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

Lord Hunt of Wirral
moved Amendment No. 26:

26: Clause 2, page 2, line 29, at end insert—
 “(d) a duty owed to anyone held in custody”

The noble Lord said: This group of amendments addresses the issue of deaths in custody caused by gross negligence. In the midst of the other very serious points that we will consider during this Committee, this is without doubt one of the most important. The amendments would ensure that, where an individual died in custody as a result of a gross breach of a duty of care, that individual’s family or loved ones would be entitled to bring a case of corporate manslaughter against the responsible organisation. We have already heard some powerful arguments in this Committee for the simple and noble principle of even-handedness in the application of this legislation. That is a fundamental and important principle, but there is much more to these amendments than that.

The power lawfully to deprive an individual of his or her liberty must be one of the most serious responsibilities there can be. The duty of care owed to an individual in detention, where he cannot act freely in his own interests, is onerous and profound, yet the way in which the Bill is currently ordered suggests that that responsibility is not so regarded by the Government.

We must not forget that the term “custody” does not refer only to people who are in forced detention; it also refers to individuals who have wilfully submitted to custody—for example, in order to receive rehabilitation. In that context, it is appropriate that the Mental Health Bill is being discussed in the Chamber, as I want to refer to the Mental Health Act 1983. In its third report on deaths in custody, the Joint Committee on Human Rights stated at point 48 that the prison population is susceptible to suicide through high rates of mental disorder, younger age and lower socio-economic status. Suicide accounts for a great number of deaths in prison, and it is right that it should come under scrutiny. It is worth noting that Section 127 of the Mental Health Act 1983 makes it a criminal offence to,

“ill-treat or wilfully to neglect”,

a patient receiving treatment for a mental disorder. I should like the Minister to say whether that provision applies to prison hospitals as well. Of course, the parallel with those held in prison or police custody is obvious.

Perhaps I may briefly describe how I expect the package of amendments to work. Amendment No. 26 would extend the duty of care to “anyone held in custody” within the definition of “relevant duty of care” in Clause 2(1)(c). Amendment No. 31 would provide a definition of “custody” for the purposes of interpretation. It includes the lawful detention of any individual within secure mental healthcare facilities, secure children’s homes, secure training centres, immigration removal centres, court cells and police cells, and while under the supervision of court and prisoner and detainee escort services. There may be some scope for extending that list at a later stage to include all rehabilitation care centres and hospitals, where individuals are not detained against their will but willingly submit themselves to the care of such an institution. Amendment No. 55 would tie in the extension of the duty of care in Clause 2 with the definition of policing or law enforcement activities in Clause 5(4).

At this juncture, we must ask ourselves why the Government have so far refused to extend the application of the offence—in effect, refused to expose a significant and very critical part of their own responsibilities to the same level of scrutiny as they seek to apply to the private sector. There appear to be three reasons. First, there is the excuse that the current levels of accountability through public inquiry and the electoral process are adequate methods for exposing failings in the system and helping it to improve. On that point, I return to the Minister’s laudable praise of this Bill; he said that it is intended to act as a deterrent that will entrench and improve a culture of safety and go some way towards preventing avoidable death.

As I understand it, the Government say that they hope that there will never be any prosecutions for corporate manslaughter, because the whole Bill will improve the safety culture. I wholeheartedly agree with that, as do many other noble Lords, because we believe that the threat of a conviction, a financial penalty or even, as I have suggested, a negative publicity drive would act as a far greater deterrent than a public inquiry. Furthermore, as every Opposition note to their chagrin, the Government have the power to resist calls for independent public inquiries and have resisted them, in the cases of Zahid Mubarek and Christopher Edwards, all the way up to the Court of Appeal.

It might be appropriate, if members of the Committee will allow me, to refer to the statement of Mr Justice Keith, chairman of the Zahid Mubarek inquiry, on publication of the final report on 29 June 2006. He said:

“Robert Stewart was convicted in November 2000 of the murder of Zahid Mubarek at Feltham Young Offender Institution … As things unfolded, it became clear to me that while the Prison Service has made many important and well thought out changes to operational policy, there is still much that could be done to reduce the likelihood of prisoners being attacked in their cells, both in young offender institutions and in adult prisons … Stewart was a prolific offender. He was in custody awaiting trial on harassment charges, having just completed serving his 8th custodial sentence … He had been diagnosed as suffering from a long-standing deep-seated personality disorder which had deprived him of all sense of conscience. He was regarded as dangerous. His correspondence revealed him to have been an out-and-out racist. And he had a history of disruptive and sometimes bizarre behaviour while in detention. Yet because of a pernicious and dangerous cocktail of poor communications and shoddy work practices, prison staff never got to grips with him … Understandably, many people have asked how Zahid came to share a cell with someone like Stewart. A core finding of the report is that malevolence was not involved. Stewart arrived on Swallow wing after the prisoners had been locked up for the night. There was one inexperienced officer on duty at the time. The wing already had 59 prisoners. The maximum it could usually hold was 60. The one space available was in the double cell which at that time Zahid was in on his own. That was the obvious place for Stewart to go … The report spells out the bewildering catalogue of shortcomings, both individual and systemic, at Feltham at the time. I was shocked and dismayed by them. I name those members of staff who were in some way to blame for what happened to Zahid. But all this has to be seen in the context of the establishment as a whole. Feltham was identified in the mid-1990s as a prison which was failing on many fronts … The 6 years which have elapsed since Zahid’s murder have given the Prison Service a real opportunity to address the systemic shortcomings which the attack on him has exposed. Much of what would have been recommended is now in place—or at any rate plans are well advanced for their introduction … But it is all very well having the proper systems in place. They need to be working properly on the ground. And at present there is a disconnection between aspiration and reality, because insufficient attention has been paid to ‘outcomes rather than processes’. The challenge for the Prison Service is to ensure that its policies and procedures are matched by good practice on the landings and the wings”.

What a terrible story that is.

16:45:00

The second reason that the Government have cited is that criminal investigations are costly and impose a resource burden on the Crown. I refer the Minister to my amendments, which would enable the court to issue a negative advertising order on a body as punishment for conviction. In the case of public prisons, it might well be appropriate to convict an organisation of corporate manslaughter without recourse to taxpayers’ money. Of course, there is a danger that Ministers would have to take their share of opprobrium in such an instance, but they already do in any case, as one or two of the Minister’s colleagues in another place would be able to confirm. Let us also not forget that many institutions lawfully holding detainees are privately owned and/or run. They are corporations in every sense other than the fact that they act under a government remit.

The third and final defence that Ministers have mustered is that, in the words of the Minister in the other place, the custodial environment deals with difficult people. What with that searing analysis and the Minister’s comment that holding companies should remain exempt by virtue of their odd legal status, I confess that my confidence in the judgment of those on the ministerial Benches is not what it might be.

It seems to me that the Government implicitly believe that some activities should never be questioned by courts, even where a person is killed who would still be alive had an activity not been performed in a grossly negligent manner. Obviously we understand the arguments about theatres of war, emergencies, police training and so on, and there are varying degrees of exemption that we consider to be acceptable. We will come to these when we debate detailed amendments on the armed services and the police force.

I am surprised that the Government are not confident enough to open themselves far more extensively to the judgment of the courts. The Minister in another place made much of the fact that £26 million has been invested in their safe custody programme, which is an admirable initiative. I wonder that they do not feel secure enough about the success of their schemes to allow the courts to do what, in effect, should be done—to approve the system formally. Indeed, the Minister in the other place went much further. In response to the point raised by my honourable friend Mr Dominic Grieve, that there can be no philosophical or rational justification for exempting government departments from the possibility of culpability, Gerry Sutcliffe said:

“I understand and agree with what he says about the duty of care”.—[Official Report, Commons, 4/12/06; col. 99.]

Finally, like my noble and learned friend, I remind the Minister where public bodies would stand if we did not accept these amendments. The amendments would provide that where there had been a gross breach of a duty of care and where the management of a body had fallen so far below what can reasonably be expected of an organisation in the circumstances that a death occurred, then—and only then—would that organisation be susceptible to prosecution. I cannot imagine why Ministers would not wish to take the opportunity to demonstrate how confident they are that their organisations would never be guilty of falling far below what can reasonably be expected of them.

My amendments, and those tabled by the noble Lords, Lord Razzall and Lord Lee, address two essential points of first principle underlying the Bill. First, the amendments—including that also in the name of the noble Lord, Lord Ramsbotham—would put all public bodies on an even footing with private bodies. That is important in these circumstances, because there is no reason why the death of an individual in one situation should be considered less of a death, or less deserving of justice, merely because that situation was presided over by government officials as opposed to privately employed foremen. Indeed, it is all the more of a tragedy and contravention of the natural principle of justice where the state itself acts with such gross negligence that the very lives of its own citizens are forfeit.

Let us not be mistaken. It is not just I and my colleagues who recognise the challenges and difficulties that are faced in these services. The courts also would recognise those challenges. I am sure that they would read with great care the provision that a corporate manslaughter conviction could or should be made only where gross negligence resulting in death had occurred.

Where that occurs, it is surely right that anybody should face the shame of a criminal conviction. That is the driving principle of the Bill. Government bodies and even Ministers cannot be an exception to that rule. I await with interest the Government’s response to this debate for I believe that it will provide the Committee with an essential insight into not only the way in which Ministers approach the first principles of this legislation but also the value that they place on their responsibilities in their direct or indirect role as custodians of those who have been deprived of their liberty. I beg to move.

Lord Lee of Trafford
My noble friend Lord Razzall suggested earlier that those who speak in this Committee should declare themselves as professionals or amateurs. If that be the Committee’s wish, I am happy to declare myself as an amateur.

Amendments Nos. 27, 39 and 41, tabled in my name and that of my noble friend Lord Razzall, would remedy what is arguably one of the most unsatisfactory features of the Bill; namely, the exemption from any corporate manslaughter charge of deaths in police custody. I concur entirely with the noble Lord, Lord Hunt, on that.

I think that it would be fair to say that virtually all noble Lords who spoke at Second Reading expressed their deep unhappiness with this exemption. Similarly, all the lobbying groups that have written to us share this concern. It is absurd to suggest that the police do not have a duty of care to those whom they take into custody and that they should be exempt from the provisions of the Bill.

As INQUEST has noted, since 1990, 10 unlawful killing verdicts have been returned by inquest juries, but none has led to a successful prosecution. Repeatedly, inquests highlight the failure to implement existing guidelines on the care of at-risk detainees. The deaths of six women at Styal prison in Manchester, which is not far from my home, between August 2002 and August 2003, despite repeated warnings to the authorities, demonstrate institutional neglect and systemic failures. We are encouraged in our arguments by the fact that both the Independent Police Complaints Commission and the joint report from the Home Affairs and Work and Pensions Committees believe that the option of a corporate manslaughter prosecution is important to maintain public confidence.

The Government are not doing any favours for the police by adopting this stance. Historically, the British public gave 100 per cent backing to the police and accepted their word as gospel. Sadly, we then saw a number of examples of police corruption and dishonesty which severely damaged that faith and confidence. We should all do everything possible to rebuild and develop the covenant between the police and the public, yet here we have a Government who, through this exemption, are damaging this relationship by providing this unacceptable and unnecessary protection. To allow our police force to take a citizen into custody and to deny them their freedom is to give a great responsibility and almost a unique privilege, as the noble Lord, Lord Hunt, said, but with that power goes a major obligation. That is why an ability to bring a charge of corporate manslaughter in today’s society is right and necessary.

Lord Ramsbotham
I am extremely grateful to the noble Lord, Lord Hunt of Wirral, for introducing the amendments and explaining his reasoning so clearly. I am sure that we are all very sorry that circumstances mean that the noble Baroness, Lady Scotland, cannot be with us, because, frankly, I should have liked to challenge her personally on one or two issues—and it is perhaps unfair to challenge her through the noble Lord, Lord Bassam. However, I shall do so nevertheless.

Last week, the noble Baroness held a briefing on this subject in which she said that the Government had been extremely brave and courageous in breaching the principle of Crown immunity in this Bill. What I wanted to say to her is that it is bravery of the kind displayed by the grand old Duke of York. If you read the Bill as written, you would say that we were all marched up to the top of the hill and shown the promised land below, but that all the exemptions with which the public sector and, in particular, custody were hedged around meant that we were all marched down to the bottom again. Frankly, I felt the courage and bravery ebbing out of the proposal.

I also say that because, during my time as chief inspector, I had a number of meetings with members of the present Government when they were in opposition, in which they appeared to take a strong line about what should happen about disciplining staff who had not behaved properly. I had high hopes when they came in that they would move on this matter, because it had concerned me that that was not happening. All too often, whenever there was a death in custody of any kind, it was subject only to an internal investigation by the Prison Service. One knew that the death could have been possible only if rules or duties of care or management had been breached, yet nobody was ever disciplined. My argument about this was that, if the Government and senior management allow gross breaches to go unchallenged, the whole structure of discipline is undermined, quite apart from the trust that people will have in an organisation.

I am sure that the Minister will himself be concerned that probably no subject has caused more grief or concern among affected people than deaths in custody. The number of occasions when it has taken years for families to get some form of information about what happened to their loved one in prison does no credit to anyone in the system. I was interested that, in the case of Zahid Mubarek, in addition to the words that the noble Lord, Lord Hunt, quoted from the admirable report of Mr Justice Keith, a strong statement was made right at the beginning, before the case came up, when the family fought for nearly four years to have a public inquiry. It was only the action of your Lordships’ House that brought the inquiry about.

The noble and learned Lord, Lord Bingham, in talking about this matter, said:

“The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others”.
 

That resulted in the Keith inquiry, from whose report the noble Lord, Lord Hunt, quoted. I was going to quote from it myself, but I shall not do so except to refer to one sentence. There was a considerable amount on record of named officers failing to do their duty, and one line particularly worried me. The report said that the governor with line responsibility had very little operational experience and did not get the help from the manager of the department,

“who had become complacent as his retirement beckoned”.

The named governor of Feltham could have,

“realised that and done something about it”.

If ever there were a description of systemic management failure, it was that.

17:00:00

I felt particularly strongly about that case because I had inspected Feltham three times and had pointed out precisely the things that came out in the inquiry, yet the Prison Service claimed to know nothing about what was going on. To my mind, so that people can have faith in the system, the head of the Prison Service, in particular, should feel that the service’s activities are subject to action such as this. I venture to suggest that, if he had felt that his actions might lead to an appearance in court on a charge of corporate manslaughter, he might not have been so complacent about his retirement and about leaving the circumstances that led to the death of Zahid Mubarek.

We have an opportunity to put this matter right. I think that we owe a duty to the public to restore confidence in a system in which increasingly, day by day, they have less confidence as a result of the exposure of practices that, frankly, should not be allowed.

Another prison about which I raised a number of concerns during my time as chief inspector was Wormwood Scrubs. Although there was no case of manslaughter, there was extraordinarily bad behaviour by staff, brutality of prisoners and, over a number of years, management failure on a scale that I simply could not believe. When the Prison Service held inquiries into Wormwood Scrubs, to which I was able to give a volley of evidence, I discovered that, again, those inquiries were internal. Although I had given evidence to one myself, I was never notified of the result, and eventually I was forced to ask Questions in this House on 20 November to find out what had happened to the reports. I did not get an answer and so the other day I asked again. I received the Answer today, which I suppose is good timing. My Question was whether, during the period December 1992 to April 1998, any of the management team faced any form of disciplinary action arising out of the violence against inmates of the prison. I was told that one member of staff was investigated and appropriate action was taken, but that is not specified.

I mention that because, frankly, that is the quality of the results under the current system of dealing with these matters. It is a system of so-called independent inquiries, supervision by the non-statutory Prisons and Probation Ombudsman, and public inquiries, of which there has been only one, and that had to be forced out of the Government by your Lordships’ House. If the Government seriously pretend that the current position is adequate, they should reflect on what that says to people who are thinking seriously about what should happen now.

There is a vast number of suicides—well over 1,000 in the past 13 years—but I want to mention just one that gives me particular concern. I mentioned it at Second Reading, too—the suicide of Paul Day in Frankland in 2002. It took four years for the inquest to be held. During that time, the family was denied all access to information and the Prison Service did its best to obfuscate the dreadful situation in which this man’s life had been made a misery because prison staff had connived at other prisoners learning that he was a police informer. He was taken to places for his own protection but he did not receive protection. The day before he died, people from independent television went to Frankland prison and filmed what was going on. They filmed him on the day that he died, capturing illegal activities taking place in his own cell.

The coroner was extremely disturbed at what he discovered. The jury in the trial said that they believed that all sorts of failures had come to light, such as the lack of communication between prisons and the lack of procedures in place. They said that management should be more involved and that Paul Day was misled about the reason for his transfer to Frankland. The effect was that he felt abandoned, frustrated, depressed, helpless and defeated; he also lost trust in the system of care. The jury believed that systems in place to manage and care for Paul effectively were inadequate. There was a lack of staff on night shifts, the suicide awareness training was inefficient, and so on.

There have been frequent calls by Day’s parents for a public inquiry. They have been consistently denied, as they have been in the case of Joseph Scholes, a 16 year-old who committed suicide in Stoke Heath, and Sarah Campbell, who committed suicide in Styal. I seriously believe that if the threat of the Bill had been hanging over the staff of those prisons at that time, all those people would not have received the treatment that they did.

When in 1999 I wrote a paper about suicides called Suicide is Everyone’s Concern, I said that I felt that what was needed was a ringing declaration from the Secretary of State and the director-general down through the system that poor management of staff, in allowing these things to happen, was not to be tolerated. If management then did its job, many of these events would not take place and staff who are responsible for the brutality towards prisoners that so mars the good name of the Prison Service would not be allowed to get away with it. The existing sanctions simply are not enough to bring this about.

I hate the thought of coercion through a Bill, but this Bill, which is based on the duty of care and which should be shown to everyone in the charge of these authorities, is an appropriate weapon. I seriously believe that the Bill would energise the management system in a way that nothing else that I have come across in the past 10 years seems to have been able to.

Lord Lyell of Markyate
In the light of the powerful speeches by my noble friend Lord Hunt and the noble Lord, Lord Lee, and the immensely well informed and powerful observations of the noble Lord, Lord Ramsbotham, I shall be extremely brief.

We are now at the heart of the matter. What is the whole purpose of the Corporate Manslaughter and Corporate Homicide Bill? It is to enable responsibility to be established at the high level at which the failure has taken place—failure that has then caused failures at a lower level to lead to preventable deaths. That is plainly what happened in the Zahid Mubarek case. The report of the only independent inquiry—again, I am grateful to Liberty—stated:

“Had there been effective management from the governor down, and within the wider prison system, the death could have been prevented”.
 

It went on:

“Stewart should have stood out from the crowd”,
 

and should not have been placed in the same cell as Mubarek.

There is a strong case for saying that there was a systemic failure that should at least have been brought before the courts. The whole object of the Bill is to put responsibility at the level where it should be; that should apply to public authorities as well as to all others, public or private. I shall listen with great care to what the Minister says about this because I am sure that there is strong feeling about it across the House.

Lord Lloyd of Berwick
Members of the Committee will have noticed that on Thursday, at our first sitting, I found it very difficult—indeed, impossible—to support any of the amendments that were put forward by them. I have no such difficulty with the amendment in the name of the noble Lord, Lord Hunt, supported by the noble Lords, Lord Lee, Lord Razzall and Lord Ramsbotham. As the noble Lord, Lord Hunt, said, it is all the more important that those in custody should be covered by the relevant duty of care, because they cannot for obvious reasons leave whatever premises they are on and do not have any choice in how they are treated.

I entirely support the arguments that have been put forward for this amendment. I can only add a lawyer’s point to the much more powerful points that have been made. Indeed, I am almost ashamed to put forward this point, following the arguments that we have heard, but I should be interested to hear the Minister’s answer. With regard to Clause 2(1), those in custody already seem to fall within the scope of the relevant duty of care. Clause 2(1)(b) refers to,

“a duty owed as occupier of premises”.

I do not know who, strictly speaking, would be the occupier of a prison, but let us suppose for a moment that it is the Prison Service. Clearly, as occupiers, the service owes a duty to people visiting the prisons; that being so, it must surely also owe a duty of care to those in custody in prison. The same also applies to the duty of care under Clause 2(1)(c)(iv), as the Prison Service uses plants and vehicles. If it is grossly negligent in relation to those matters or to the conditions of the premises, it is clearly already under a duty of care to those in custody. There is no exception in the Bill, as far as I can see, to prevent the prison authorities from being liable in those circumstances—so how should there be an exception in the far more serious instances to which the noble Lords, Lord Hunt and Lord Ramsbotham, referred?

Baroness Howe of Idlicote
I support all the amendments, especially having listened to the speeches made by all the noble Lords who have spoken, with their expertise and—to refer to my noble friend Lord Ramsbotham—actual experience in this area. Earlier, the noble and learned Lord, Lord Lyell, referred to the fact that gross negligence is required in these circumstances. That has made a particular impression in matters such as this. Of course, the safety of those outside must be borne in mind, along with the reasons why people are put into prison.

There is the human rights issue—and the point was made forcefully about the importance of this group being included, because of the encouragement that that would give to the culture of safety. We have been discussing what has happened in prisons and the effects of gross overcrowding, which is contributing even more than in the past to the concerns and the failure to address the problems and needs of those in prison, such as the totally inadequate mental health facilities. It is typical that we are discussing in parallel rooms a Bill such as this and a Mental Health Bill. Having read what was said in the Commons, I cannot believe that the Government will not include this group in the provisions of the Bill.

It is a brave Bill, but it will not be seen as such unless the whole range of amendments is included. Whether it is a private or public prison, the whole range is relevant. On that note, I hope that we shall hear something encouraging from the Minister. One accepts that this is not his area of expertise, and it is a pity that he has to cope with it—these things happen—but I hope that we will be encouraged by his remarks.

Lord Wedderburn of Charlton
It is impossible for me, sitting next to the noble Lord, Lord Ramsbotham, not to want to add my voice to what has just been said. I am rather more of a pessimist than the noble Baroness, Lady Howe. I have a horrible feeling that the Government will put up some ridiculous resistance to what is obviously a totally justified approach. I no longer suffer from the whips and scorpions of the Minister’s noble friends but, when I did, I counted the noble Lord as a friend in a real sense and still do. I ask him—and, through him, the noble Baroness, who is unfortunately not with us today—to put aside those parts of his script that are totally resistant to these amendments and to advance a reply to the arguments that have just been put. I have never heard a speech like that of the noble Lord, Lord Ramsbotham, which is so obviously right and based on primary experience. If the Government resist this, those who have not taken the step that I took a few weeks ago and who go on singing that great number of the 1960s,

“It’s my party, and I’ll cry if I want to”,
 

will have to cry even more. I shall not, because I am no longer bound by the Whip. I shall feel another little piece of justification for that. I beg the Minister to think carefully before any pre-existing script in his hand defies the logic of these amendments.

17:15:00

Lord Bassam of Brighton
I am beginning to wish even more that the noble Baroness, Lady Scotland, was with us this afternoon, because it falls to me to advance the Government’s position. I do so having listened to what I happily confess has been a stimulating and interesting debate conducted with passion and not a degree of persuasion. Of course, one would expect that, given the personae in the Committee this afternoon.

I shall, of course, disappoint the noble Lord, Lord Wedderburn, but for good reason. I appreciate that the issue of safer custody is of high importance to all noble Lords, as it is to the Government. It goes without saying that we have made many efforts to make improvements. The noble Lord, Lord Ramsbotham, might disagree with that, but the Government have attempted to improve the safety of custody in many respects, because it is right that the Government should do so. No Government should be complacent about it, and we should always strive to do better.

I shall carefully set out the Government’s position. The drive behind the amendments is a quite proper desire to see fewer deaths in custody but, while I share this desire, it is not right to extend the offence to deaths relating to the exercise of custody functions. That is not because the Government fear adverse publicity from the offence applying to prison deaths. It will not have gone unnoticed by noble Lords that, in any event, adverse publicity attaches itself to cases of the sort described this afternoon, and that is not necessarily contingent on a criminal case. A damning public inquiry or report from the inspector of prisons—as I am sure that the noble Lord, Lord Ramsbotham, would aver—can attract much press interest, a high degree of criticism and a focus on the important issues relating to the tragedy of a death in custody.

The offence 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 and for driving improvements across custody services. We all want further improvements in how the prison, police and immigration services look after detainees in their care and we all want fewer deaths in custody, but applying the offence to deaths in custody is not the way to go about achieving that.

I want to talk in more detail about why the circumstances of custody make scrutiny of how it is managed unsuitable for the criminal courts. Prisons face a uniquely difficult and complex environment. In seeking to reduce risks, prisons must act within the constraints of the resources available and balance the needs of all prisoners in making those decisions. What is so very difficult is that prisons are not in control of all the factors, in particular of the number of people sent to them by the courts and whether those people are at risk of suicide. Often prisoners bring a number of risk factors, such as substance misuse or mental health problems, into custody with them. The very fact of being in prison can make their risk of suicide significantly higher, but it is not within the gift of the Prison Service to determine which people are committed to prison custody.

The decisions of courts in individual cases are crucial, as they should be. The Prison Service cannot simply decide to stop accepting new prisoners or otherwise refuse to accept certain high-risk individuals because of the additional strain that they may place on the limited resources available to monitor such persons to a level required to prevent all suicides or other tragedies. Having to respond to those external pressures can mean that resources in a prison can shift quickly from being adequate to being inadequate. More widely, key decisions of government policy and legislation passed by Parliament impact on how many people are sent to prison. The resources available to prisons to cope with those people result from balancing priorities for the use of public money across the board.

Although with other public authorities—for example, local authority provision of certain services—resources can be balanced against provision of service, the Prison Service cannot withdraw or reduce its service. Only the Government can decide whether there is insufficient resource to house safely all prisoners and whether the public interest is better served by sentences being commuted or certain prisoners being released. That involves weighing up competing public interests, where the safety of the public and the safety of prisoners must be balanced against each other. How that is done, and whether the right balance is struck, is not a matter for the courts; it is a matter for the Government, subject, as ever, to appropriate parliamentary scrutiny.

The criminal law is a blunt instrument for looking at all these factors and considering the causes of a person’s death in prison. Furthermore, we must consider whether manslaughter is the appropriate label for those who fail to prevent people from taking their own lives or to prevent one person from killing another. If there were no other robust ways in which prisons could properly be held to account, we would need to ensure that they existed, but there are already a number of such accountability mechanisms firmly in place. They include the interrogation of Ministers in both Houses and in relevant committees, robust scrutiny by HM Inspectorate of Prisons and independent investigations of particular cases.

All deaths in prison custody are subject to an investigation by the Prisons and Probation Ombudsman and deaths in police custody are subject to an investigation by the Independent Police Complaints Commission; they are also subject to a coroner’s inquest, in public, with a jury. In rare circumstances, public inquiries may also be appropriate, such as in the tragic case of Zahid Mubarek, to which the noble Lord, Lord Ramsbotham, and other noble Lords referred.

To take that case as an example, the public inquiry allowed a full investigation, which looked not only at the immediate causes of Zahid’s death, to which a criminal court would be limited—that is an important point—but also at the wider context. Investigations by the ombudsman, the IPCC and public inquiries can fully investigate the causes of deaths in the widest context and make recommendations that drive improvement across the prison estate and in other detention services. They are the right way to examine deaths in custody.

The Government are fully aware that safety in custody must improve. We are working to achieve that, and the types of investigations into deaths about which I have been speaking can highlight particular areas for improvement. We are concerned that any criminal investigation as well as these other forms of investigation, which we would certainly not consider reducing, would divert limited public resources and encourage a culture of defensiveness. We all accept that prisons need to be imaginative and to spend their resources to meet a variety of competing demands, including the physical environment in which prisoners are kept and the programmes that are employed to turn around offending behaviour, increase employability and tackle long-term problems such as drug addiction. Imposing the offence on top of that complex matrix risks putting pressure on the way these decisions are taken. We do not believe that that would be in the public interest. There are more 200 deaths a year in prison. Prisons are under pressure to improve, but we do not think that adding to that pressure at this time by applying the offence of corporate manslaughter would achieve those improvements.

Before I close, it is worth reiterating the sort of cases that this offence was designed to tackle in the first place. While the Government are working to reduce the number of deaths in custody, whether these measures are in place or are enough are core government policy decisions, which are not what the Bill was intended to examine. The Bill has never been about creating a new avenue for judicial scrutiny of core government decisions. It is about the management of health and safety and the employment and workplace activities to which those provisions generally apply. That is highlighted by the nature of the incidents that have underlined the case for reform over the years. We have not shied away from applying the new offence to government. Indeed, we have gone to some lengths to lift Crown immunity, and I take issue with the noble Lord, Lord Ramsbotham, when he questions the braveness of that. We have gone further than any previous Government, with the result that we find ourselves having these important and difficult debates. The Prison Service will receive no special treatment in its position as employer or occupier, but it has unique public responsibilities. The way they are carried out involves complex questions of public policy.

It has never been the Government’s intention to bring forward legislation that would allow the courts to go to the heart of the Government’s decision-making in how they discharge fundamental public responsibilities. For this reason, the Government strongly oppose the Bill being diverted from its true purpose in this way. I hope that noble Lords will agree with me that Parliament is the right place for the rights and wrongs of decisions taken at the heart of government to be examined and that we should not franchise the job out to the courts to do it for us. While I understand the passion that has driven this debate, and I understand why that passion is there, the Government have to reject the amendment.

To answer the point made by the noble and learned Lord, Lord Lloyd of Berwick, it is best to say that the new offence will apply to the kind of fatal incident that the offence was originally intended to cover when we first conceived it in the context of the proper management of health and safety. Throughout the discussions of the Bill, we need to focus on that underlying objective to take the health and safety agenda one step further and to make improvements in the proper management of health and safety matters. Deaths in detention or of those working in detention services will be covered when the state of the workplace or the use of equipment in the building is the cause of death; for example, a death caused by the failure of fire-fighting equipment or of a fire door would not be excluded from the scope of the offence. Similarly, a death caused by faulty equipment in a workshop would not be excluded. Other deaths are also within the scope of the offence, such as deaths arising from gross failures in matters such as food hygiene. I hope that that answers the question of the noble and learned Lord, Lord Lloyd, and addresses the issue of occupier liability.

17:30:00

Lord Lloyd of Berwick
On that last point, I understand that the Minister accepts that the prison authorities owe a duty under Clause 2(1)(b) as occupier to visitors at prisons. That being so, why on Earth should that same duty not be owed to somebody in custody? People who are in custody are already covered by the Bill. Therefore, the argument that people who have been sent to prison are not there at the wish of the prison authorities falls to the ground. Indeed, all the Minister’s arguments fall to the ground.

Lord Bassam of Brighton
In terms of prisons providing a duty as occupier, prisoners in custody are not included. That is the point and why we are having the debate. We draw a distinction, which we think is right. It goes to the heart of the way in which policy is conducted and decisions are made about the nature of resources and so on applying to the prison estate and other custody services.

Lord Razzall
Before the noble Lord sits down, I have listened with great interest to what he has said. I will read Hansard, but would not anything that he has said as a justification for excluding the Prison Service apply equally to BP, Glaxo Smith Kline or Accenture? All the Minister’s arguments are a justification for excluding any organisation. Why is the Prison Service being singled out?

Lord Lyell of Markyate
Before the noble Lord sits down, I am afraid to say that what I feared would happen has happened. The Minister has skilfully sought to focus in a rather narrow way on the question of custody and has not really met the major issue of principle. He has confused or obfuscated the position under Clause 3(1), which relates to decisions on matters of public policy, with Clause 3(2), which is the subsection that excludes, to our chagrin, the relevant duty of care except in cases of occupiers’ liability or employers’ liability. The amendments give a stark illustration of the kind of injustice or thoroughly unsatisfactory public management that can arise if corporate manslaughter does not apply to public bodies in the way in which it applies to private bodies. The Zahid Mubarek case is a vivid illustration referred to by the noble Lords, Lord Ramsbotham and Lord Hunt.

The Minister has again sought to wriggle out of this. He says, “No, you cannot have decisions on matters of public policy being questioned in the courts. These are matters for Parliament”. But what went wrong in Feltham was not a decision on a matter of public policy. It was not a decision of public policy that there should be an incompetent system in Feltham, or that senior officials in Feltham 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.

It is not a question of public policy. I am sure that there is no public policy to that effect in the Home Office—even under this Government. I withdraw those remarks. It has never been public policy in the Home Office to mismanage prisons. Indeed, quite the reverse. The object of the Home Office is to manage prisons well, but it just does not happen. The object of most major corporations is to manage their affairs well. Occasionally that does not happen. The Bill will hold them responsible for corporate manslaughter in sufficiently serious cases, although I, like other members of the Committee, hope that that will never arise.

We have an example of a sufficiently serious case where it might have arisen, and where it might happen in future. But it was not a matter of public policy that caused it to happen and—this is the key point—if it had been a true issue of public policy, these amendments would not remove the defence of the Home Office or the Prison Service in the face of such a charge. They would still have that defence under Clause 3(1), and it would be a legitimate defence. It might often be said, “You didn’t spend enough money on this”. If it could be shown that there were just not the resources or that it was a matter of difficult judgment, that would be a defence. The Minister has evaded the real issue that is causing concern to the Committee, so I hope that he will think again.

Lord Ramsbotham
I am glad that the noble and learned Lord, Lord Lyell, has introduced the subject of money. I was disappointed in the Minister’s reply, particularly because he started by mentioning resources, as if hurling money at this is the solution. It is not. The solution is all about management. If the Minister had read every report—annual or whatever—that I wrote, he would have seen that the issue came down to management every time. Poor management, poor oversight of management and failure to oversee management are the cause of ills in the Prison Service. I am extremely disappointed that, despite the Minister’s experience in the Home Office and a briefing from the prisons inspectorate, that point does not seem to have gone home.

I am not a lawyer but I want to repeat a paragraph that the Prison Reform Trust has put to us about the law on this matter. It states:

“A corporate failure, which results in the death of a prisoner, is by definition a failure of duty of care of colossal proportions, ending the life of a citizen held in an almost powerless situation. This is recognised in international law and guidance. In the case of Keenan v UK, judgment 3/4/2001, the European Court of Human Rights stated that ‘in the context of prisoners … persons in custody are in a vulnerable position and … the authorities are under a duty to protect them’. In the case of Barbato v Uruguay, 1983, the UN Human Rights Committee considering a death in custody, was of the view that a state party to the International Covenant on Civil and Political Rights was ‘under an obligation to take effective steps … to bring to justice any persons found to be responsible for his death’”.
 

This is by no means a new situation, which is why I am extremely disappointed that the chance of putting it right has not been taken. On the subject of human rights, I should say that, when we were looking at the implications of incorporating the European convention into British law, I asked a lawyer to compare the conditions with prison rules. The lawyer said that there was absolutely nothing in prison rules that was not in line with the European convention. Therefore, a breach of prison rules is also a breach of human rights. The worry about management breaching its own rules, quite apart from anything else, makes the case even more strongly than before.

Lord Hunt of Wirral
Before the Minister responds to that important point, may I add in support of the noble Lord, Lord Ramsbotham, the report of the Joint Committee on Human Rights of this House, which concluded that the effect of the various exemptions means that the Government will be at serious risk of violating Article 2 of the European Convention on Human Rights—the right to life? Paragraph 1.43 of the Joint Committee report states:

“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”.
 

Will the Minister respond to the point of the noble Lord, Lord Ramsbotham, over and above what the Government say in the Explanatory Notes? They seek to justify the restricted application of the new offence to public bodies, or bodies exercising public functions, by relying on the availability of other avenues of accountability. Yet it is in precisely these sorts of cases that the case law of the European Court of Human Rights, quoted by the noble Lord, stresses the inadequacy of other mechanisms of accountability, the importance of the deterrent effect of the judicial system and the significance of the role that it is required to play in preventing violations of the right to life.

Lord Clinton-Davis
Would it not be right, following a debate that has not been party political at all, for the Minister to say that he will cogitate profoundly on everything that has been said? It would not bind the Minister at all but, if he did so, the whole Committee would be impressed.

Lord Bassam of Brighton
It is tempting to be mightily impressive, but I cannot oblige the noble Lord. The Government have gone a long way on Crown immunity.

Lord Razzall
No.

Lord Bassam of Brighton
I am sorry, I disagree. We have moved a long way on Crown immunity; the Bill makes a fundamental shift. However, we have a responsibility to be clear about our public policy position, and have made those points clear.

I shall respond to the secondary issues raised by noble Lords. The noble Lord, Lord Razzall, made the BP point. BP can withdraw services; prison services cannot. The management of BP’s business does not include questions of government policy in the same way. I take issue with the assertion that management and public policy are somehow in a different orbit. When the noble Lord, Lord Ramsbotham, made his initial, powerful contribution, he was in effect saying that management issues were of course relevant and related to matters of public policy. It is ultimately for politicians, who are accountable for how the Prison Service conducts itself, to make key decisions about the way in which prisons are managed.

This ultimately comes back to matters of policy. The Government have a responsibility for commissioning the way in which prisons are run. We put the money in place. We adjust the programmes to ensure, for instance, compliance with checks on the health of prisoners so that proper provisions are in place to prevent suicides, deaths in custody and the like. It is not so easy to draw a line between issues relating to deaths in custody, in policy terms, and issues relating to management. It is more difficult than has been asserted thus far.

The Bill is compliant with the ECHR. Criminal law provides a wide range of sanctions for those deliberately, recklessly or negligently causing death. There is no consistent practice on corporate liability across the European states. We do not agree with the Joint Committee on Human Rights that there is an obligation to have a corporate homicide offence under the convention. We think that the Strasbourg court would be slow to find an obligation in that respect. Perhaps that is, in essence, a challenge for others to consider. We do not agree that the discrimination provisions in the convention would apply. Those prohibit discrimination on the basis of personal characteristics. The differences in the Bill relate to the different characteristics of organisations and the functions that they carry out.

We have a disagreement here. It is an honest disagreement, which has been met with argumentative passion, and I certainly respect that. However, in the end, we take a different view.

17:45:00

Lord Hunt of Wirral
This has been a very disappointing response from the Minister, and we should take a moment to explore why. We are talking about someone who is killed who would be alive had an activity not been performed in a grossly negligent manner. That is a really serious situation. The Government are not being even-handed; they are saying that in certain circumstances, a corporation will be found guilty of corporate manslaughter but, perhaps in circumstances even more serious than the case involving the private sector, the agency of government could not be prosecuted for corporate manslaughter.

I tried to work out why the Minister was being so firm, given that all the arguments that we have heard are so persuasive. I believe that the answer may lie in a rumour that has not been aired in this Committee—that the Home Secretary has made it clear that if the amendment were passed, the Bill would not be brought into effect. I challenge the Minister to tell us whether that is or is not true, because it is an important point and an important question to ask.

The Bill forms part of what is said to be the Warwick agreement—and I am still waiting for the noble and learned Lord, Lord Davidson, to give me a copy. I asked for a copy at Second Reading but I am still waiting for one—and perhaps one day I will get one. I understand that it contains a commitment that the corporate manslaughter offence will be introduced as a criminal offence. If it is the case that that is a key part of the invisible but apparently already written Warwick agreement, are the Government seriously contemplating withdrawing a Bill that they have promised under that agreement because the majority in the Houses of Parliament might oppose them on this matter? It would need a majority in both Houses to press this on the Government. I believe that these threats are being issued because the Government are not confident that they would succeed in persuading the Members of the other place to reject any such amendment if we passed it in this Chamber.

Perhaps the rumour should be aired a little more clearly so we know exactly where we are. At the moment my colleagues and I are determined to press the issue—and when we come to Report, which I understand may be on 5 February, this is a very important amendment on which we would want to test the opinion of the House. That is some days away, and there is still time for the Government to seek to meet this point and to recognise that very strong feelings are being expressed.

Lord Clinton-Davis
That is exactly what I wanted to emphasise. My suggestion has been ruled out by my noble friend. Am I not right in saying that we are not considering any party advantage with regard to this matter? Would it not therefore be sensible to consider the debate and what has been said, rather than rule out the opinions that have been aired?

Lord Hunt of Wirral
I completely agree. Some years ago, I was one of the senior Whips, and I know that the most effective way to change a Government’s mind is for their own Back-Benchers and Members to argue the case. When I was a Minister, I hope that I was always available to hear from my own side and from all sides when they felt strongly on a particular issue. I am not advocating mutiny or rebellion but, on this non-party-political issue where the will of Parliament is at the core of the debate, it would be very useful for Members of both Houses who feel strongly about this to make their views known.

We have had a lengthy debate, because this is a key issue. We have had briefings from Justice and Liberty. The noble Lord, Lord Ramsbotham, made a memorable speech that drew on his considerable experience and expertise. He referred to the briefing from the Prison Reform Trust, which pointed out that the other mechanisms to which the Minister referred, such as the role of the Prisons and Probation Ombudsman, are not on a statutory footing. It is also recognised that inquests can provide a verdict and the coroner can suggest remedial measures under Rule 43 of the Coroners’ Rules 1984, but those recommendations have no binding effect. Issues such as that make us feel that there is a gap in the law. It is equally persuasive that a number of other bodies, such as private companies running prisons or custody suites, including those that have been mentioned to us, would be exempt. The whole question of custody becomes an overarching issue that applies not only to the public but the private sector.

I hope that I made a persuasive case, and I will seek to do so again. I thank noble Lords who spoke in this debate. I anticipate that my noble and learned friend Lord Lyell will be returning to this issue on each amendment where we have this area of uncertainty between the public and private sectors. I want to think about some of the points made by the noble and learned Lord, Lord Lloyd, about whether there would already be application under Clause 2. The noble Lords, Lord Lee and Lord Razzall, also made a persuasive case, and the noble Lord, Lord Ramsbotham, made an outstanding speech. The noble Baroness, Lady Howe, added to the persuasive nature, as did the noble Lord, Lord Wedderburn. I hope that the intervention from the Back Benches of my good friend and solicitor colleague, the noble Lord, Lord Clinton-Davis, who has great experience of being a Minister, will add to the persuasive nature of this debate so far as the Government are concerned.

Lord Lee of Trafford
Would the noble Lord acknowledge and place on record that at Second Reading, in Committee and outside this House there has been zero support for the Government’s position?

Lord Hunt of Wirral
I would not like to designate the Minister as zero, but he will recognise that he has not had many friends and colleagues supporting his case, which is the point being made by the noble Lord, Lord Lee. There is still time. We urge the Government to focus on this issue which is at the heart of the debate. We want to see a clear and effective law making it a vital part of the criminal law that organisations cannot cause someone to die through their gross negligence, falling far below the duty of care that would reasonably be expected in those circumstances. I believe the case has been made. We have not yet made the progress we would wish, but I believe we will  eventually win the day when the Government begin to concede that all sides of the Committee are in favour of these amendments. In the mean time, with considerable reluctance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 27 to 33 not moved.]

Clause 2 agreed to.

Baroness Turner of Camden
moved Amendment No. 34:

34: After Clause 2, insert the following new Clause—
 “Offence by senior manager
 (1) A senior manager of an organisation is 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) For the purposes of this section, a person is a “senior manager” of an organisation if he plays a significant role in the making of decisions about how the activities of the organisation are managed or organised, and includes the chairman, managing director, chief executive, secretary or other director of the organisation.
 (3) A person guilty of an offence under subsection (1) is liable on conviction on indictment to—
 (a) imprisonment for a term not exceeding 6 months, or (b) a fine not exceeding the statutory maximum, or to both.”

The noble Baroness said: In moving the amendment, I shall speak also to the other amendments in the group, with the exception of Amendment No. 92, which will be dealt with by my noble friend Lord Wedderburn.

As I have already indicated in discussion on the Bill, my interest is that of a former trade union official. I have consulted colleagues in my union and in the TUC. As I said earlier, the unions are generally in favour of the Bill, but believe that it should be tightened up to make sure that it is really effective.

Concern is felt that the Bill does not address the role of individual directors. It is not organisations that kill people, but the actions of the people in those organisations. Directors and senior managers should be held to account for their actions. There is nothing in the Bill that would lead to directors who make the decisions that result in a death being held liable. That could mean that, while the Bill may make it easier to bring corporations to justice after a fatality, it will not lead to those who run the organisations taking preventive measures to ensure that such deaths do not occur in the first place. That will happen only when those who make the decisions that lead to workers or the public being killed are held responsible for their actions or their inaction. Unless there are individual sanctions against directors or senior managers, there is little chance of the Bill changing the health and safety behaviour of directors and improving the management of health and safety at work.

It has always seemed strange to me that severe penalties can be imposed on directors for financial malpractice, but that there is no specific duty of care for the health and welfare of the workforce. There may be a case for making an addition to the Health and Safety at Work etc. Act to ensure that that happens.

Amendment No. 35 establishes secondary liability, as recommended by the Joint Committee, for those who connive, conspire or collude in an act that results in death. It is believed that that would have a significant deterrent effect. I understand that the Government have previously declined to accept the recommendations of the Joint Committee, but I hope that they will be prepared to reconsider. Perhaps they will accept the principle behind the amendment even if they prefer a different form of wording; it is the principle involved which is important. What the amendments seek cannot not be obtained while Clause 16 exists. For that reason, we have given notice of our intention to oppose the Question that Clause 16 stand part of the Bill.

Amendments Nos. 90 and 91 seem to be along similar lines, but seek to reverse the meaning of the clause rather than do away with it all together. Clearly, if our main amendment is to be accepted, something has to be done about Clause 16. It cannot stand as it is. As I said earlier, the noble Lord, Lord Wedderburn, will speak to Amendment No. 92. I beg to move.

18:00:00

Lord Razzall
I shall speak to Amendments Nos. 90 and 91 in my name and that of my noble friend Lord Lee. The noble Baroness, Lady Turner, is correct that our amendments’ purposes are entirely in line with hers. I claim no credit for the drafting; I am perfectly happy for the Committee to deal with these issues as it thinks fit.

These are probing amendments. The issue raised by the noble Baroness, Lady Turner, was not properly discussed in another place. We must explore why individual liability for directors should not be encompassed by the Bill. I understand—the noble and learned Lord, Lord Lloyd, will correct me on this if I am wrong, as he does on so many other matters—that individual directors can be prosecuted for the common law offence of gross negligence manslaughter and under Section 37 of the Health and Safety at Work etc. Act 1974. However, if we look back, first, at prosecution for the common law offence and, secondly, at prosecution under Section 37, the practice has been that only a small number of directors has been prosecuted. Obviously, once the Bill is passed, corporate manslaughter will be a serious offence. I want the Government to justify how excluding individuals who have been grossly negligent would facilitate justice for bereaved families under those circumstances.

This is a probing amendment. I support the principle that the noble Baroness, Lady Turner is putting forward. I claim no credit for the drafting, because her amendments have exactly the same effect, and look forward to hearing the Government’s response.

Lord Hoyle
The amendment is in my name as well as that of my noble friend Lady Turner. I declare an interest; not only am I member of a trade union, Amicus, I am a past president of two of the founder unions, the ASTMS and MSF.

I rise because you cannot imprison a corporation—you can fine it. It has been proved in the past—as referred to by the noble Lord, Lord Razzall—that, under the Health and Safety at Work etc. Act 1974, it has always been difficult to find a controlling mind. It is easy to find a controlling mind in small companies, and they and their directors have been successfully prosecuted, but not large ones. It is right to refer to some recent events: the “Herald of Free Enterprise”, the Kings Cross fire, the rail disasters at Southall and Hatfield, the “Marchioness” pleasure boat and the oil rig. Over a long period, it has been difficult to prosecute if individuals are not at fault.

We are not talking about minor offences, but about the death of individuals. In that context, somebody in a corporation should be responsible at a senior level. If they were, there would be a different boardroom outlook, and health and safety would be even more relevant to the workings of a corporation. In a large corporation, ignoring health and safety is not good for those at boardroom level, but does not really affect them. Making an individual responsible would concentrate minds in the boardroom.

Without going over all that my noble friend Lady Turner said, if we are to put teeth into the measure, individuals at senior level must be responsible for health and safety. I look forward to the Minister’s reply; this is an important matter that goes to the heart of the Bill.

Lord Wedderburn of Charlton
Amendment No. 92 is in this group, and I ask noble Lords to look at it because it takes a very conservative approach—an unusual situation for me—to the problem with which we are confronted. I should point out an error in the printing, which was probably my fault. Subsection (2) of Amendment No. 92 should read “art and part”, rather than “art or part”. I apologise to all Scottish lawyers for my mistake. Although my origins lie there, if it was my fault, my hand is obviously not yet skilled enough to affect my language. I put no emphasis on the drafting. Obviously, there may be a need for other subsections as the Government prefer, but the spirit of Amendment No. 92 is plain.

I say at the outset that I do not want to argue the minutiae. What I am arguing for is something that has different contours of legal liability that are sometimes less wide and occasionally as wide or wider than Section 37 of the Health and Safety at Work etc. Act. I do not want to go through employers’ liability, but that is my position on Section 37.

I tabled the amendment because I take as my text what the noble and learned Lord, Lord Lyell, said early in our debates last week. He quoted Dicey and said:

“With us, every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen”.—[Official Report, 11/01/07; col. GC 115.]
 

I take it that that text from Dicey is roughly the same sort of approach that the noble Lord, Lord Hunt, today called a principle of even-handedness. The reason why the amendment rests on even-handedness is because it points to a fact about criminal liability that has perhaps not been sufficiently highlighted in previous debates. Criminal liability is a very simple and elementary proposition. Criminal law imposes two different forms of liability: primary responsibility, when a thief takes property from a safe, and secondary criminal responsibility when a person hands a thief the key with which he opens the safe. If there is no primary liability in the second person for some special reason, he will normally be liable for aiding, abetting, counselling or procuring—sometimes it is said, encouraging—the commission of a primary offence. The Explanatory Notes to the Bill put the point well, so there is no question of the issue not being in the Government’s mind. Paragraph 54 states:

“Individuals who assist or encourage the commission of an offence can also be convicted of an offence where they have aided, abetted, counselled or procured it or, in Scotland, are guilty of art and part. This is known as secondary liability”.
 

Indeed it is. The notes go on to say that in this Bill such secondary liability is expressly excluded. That is why my Amendment No. 92, like the previous amendments, needs to do something to Clause 16, preferably to omit it. No reason has ever been given for excluding secondary criminal liability under this Bill. Absolutely no justification has ever been advanced for it. It is simply stated. That is it.

Lord Clinton-Davis
Does the noble Lord agree—I am sure that he does—that the Joint Committee specifically recommended exactly what he has said?

Lord Wedderburn of Charlton
I said that the Government have not advanced a satisfactory justification and I do not think that any committee has done so either.

I want to make quite clear at the outset that this secondary level of liability involves complex considerations. The burden of proof is not on me to show that there could be an aiding and abetting of what the Bill primarily imposes on organisations; namely, what used to be called corporate killing and is now corporate manslaughter. The amendment states that the ordinary rules should apply, and there is no good argument whereby they should not, either from Section 37 or anywhere else. If a senior executive or a board of directors knows that an enterprise is suffused with a culture of negligence, the breaches of duty might be on the part of particular members of senior management. That would bring about a conviction for corporate manslaughter. However, a case of abetting may clearly arise. I see no reason why that normal rule of law should not apply. Why on earth exclude the rule of law as it applies to every other citizen? There is a very heavy responsibility on those who wish to avoid the normal rule of law in respect of a criminal offence.

Lord Lloyd of Berwick
I am following the argument of the noble Lord very closely, but I am unable to understand how the Explanatory Note to Clause 16 fits in with what is in the Bill. Can he explain that?

Lord Wedderburn of Charlton
All that I have said—

Lord Lloyd of Berwick
I am not opposing anything that the noble Lord is saying. I merely wish to understand the Explanatory Note in light of the Bill.

Lord Wedderburn of Charlton
Why Clause 16 is in the Bill is for others to explain. I am saying that it cannot remain there if my amendment is accepted. That is why I am speaking in the same debate on whether Clause 16 shall stand part of the Bill.

Mine is a minimal amendment. I have no wish to introduce what has been called a “party-political approach”, but the Government’s election manifesto pledged to introduce what they have put forward as corporate manslaughter; namely, that if all the conditions imposed by Clauses 1 and 2 are met, the primary liability in criminal responsibility should rest with the corporation or a company in the average case. The Government naturally did not put in their manifesto—no one in their right mind would think of doing so—“Ah, around the rules that normally apply to every citizen about aiding and abetting, we give you no promise whatever”. It would be quite absurd to do so, yet the proposed provisions would apply to what would normally be managers or directors—let us call a spade a spade: it would apply to directors, although they need not be directors. This is where the amendment differs from Amendment No. 35, which names directors and so on. I am not concerned with who has abetted the crime; I am concerned with the normal rule of law applying to them.

The Bill does not create primary liability in an individual. Noble Lords will see that proposed subsection (1) of Amendment No. 92 reaffirms that principle, whatever the arguments may be about extending the ambit of what the Bill sets out to do. They will see also that proposed subsection (2) is contrary to Clause 16 because it applies the normal rules of law to acts of aiding and abetting. It is perfectly possible that such a secondary liability would arise. Some noble Lords will think that it will be very rare; others will think that it will be pretty rare. I do not think that it will be the normal case. However, when the legislature passes such a Bill as this, it must bear in mind that such a liability could arise.

18:15:00

I am sure that noble Lords are eager and avid readers of the Sunday Times and the Financial Times. Today, they will have noticed that next week, or possibly even earlier, a report on the liabilities and failures of one of our great corporations, BP, is to appear in the United States. A committee headed by Mr Baker has gone through its record and has looked at the dreadful explosion in its operation in Texas and at the corrosion and leaks in the Alaska oil pipeline. Today’s Financial Times states that those who have seen a draft of the report say that no one escapes blame, including everyone on the board. If that is so, it is quite extraordinary, but BP is a huge organisation and there were huge explosions in Texas, and huge damage to people and the environment in Alaska. I do not say that that could happen here but, if those who have seen the report are right and if such things happened here, under the Bill a case of aiding and abetting a crime would be arguable and should not be dismissed lightly.

It does not matter what noble Lords think of that. It is merely current affairs on the matter that have sparked a lot of interest. I do not have to prove that anyone would aid, abet, counsel or procure this offence; I say only that that is the ordinary rule of law. I know of no exception in regard to a major offence. It is far wider than any trade union immunity that ever existed. The immunity from civil liability granted for trade unions in 1906 and destroyed by the noble Lord, Lord Tebbit, in his 1982 legislation was minuscule compared with this vast immunity for those who aid or abet this crime.

I shall mention two details about Amendment No. 92. Noble Lords who have looked at it will have seen that subsection (3) maintains the law relating to conspiracy. I say nothing about that. Those whom I have discussed it with have never raised objections. If there is no valid objection, that could go out, but it seems worth saying expressly. The same applies to subsection (4), which relates to civil law. There is a saying that has been accepted by noble and learned Law Lords in many cases. Paragraph 24/88 of the 18th edition of Clerk and Linsell on Torts states:

“There exists a tort of uncertain ambit which consists in one person using unlawful means with the object and effect of causing damage to another”.

In litigation, the question of whether a particular breach of statute is an unlawful means within that general principle is often problematical. It is always worth saying so in legislation so as not to waste the time and money of litigants, judges and the courts. I suggest to the Government that they should immediately accept this amendment because subsection (1) accepts that their manifesto promise was no more or less than that a corporation or organisation would suffer primary liability for corporate manslaughter. Proposed subsection (2) maintains the normal rule of law and does not accept the immunity that the Government have put in the Bill. The rest are details.

As a footnote, I shall make a comment which is not in my notes. Having ditched the people in custody in the previous group of amendments, surely the Government will not ditch those who suffer from aiding and abetting as well as a primary liability in this group. The Home Office does not deserve that; it is in bad enough trouble as it is. For goodness’ sake, they are in a hole, so will the Government please stop digging?

Lord Clinton-Davis
I argued at Second Reading for a different sort of liability attaching to directors, but my noble friend is probably right in referring to Amendment No. 92. The Minister ran out of time; he did not reply at all to the points that were raised. I excuse him for that because I know exactly what happens to Ministers when they run out of time, but the remainder of my noble friend’s remarks should be answered at this stage, and the Minister cannot rely now on lacking time.

I repeat my arguments, which may be redundant, that directors or senior managers should be held responsible for their actions or inactions. Does the Minister seek to resile from that point? I have nothing to add to the very powerful case that has been advanced by my noble friend Lord Wedderburn. After the points that he raised and the powerful argument that he made, which concerns people on all sides of the Committee, it is incumbent on the Minister to reply, and I have every confidence that he will do so.

Baroness Gibson of Market Rasen
I support Amendments Nos. 34 and 35, which are in the names of my noble friends Lady Turner of Camden and Lord Hoyle. I declare an interest in that I was for six years a commissioner on the Health and Safety Commission until I entered this House in 2000. During those years and since, very few cases have been taken against individuals who have had responsibility in organisations that breached laws and caused deaths. I believe firmly, as do my noble friends who tabled the amendments, that with individual senior management comes individual responsibility.

Before the Minister tells me so, I know that the Health and Safety Commission and Health and Safety Executive do not agree with the amendments but, in this instance, they are wrong. If the amendments were included, overall that would strengthen health and safety legislation in this country.

Lord Henley
After the near unanimity on the previous amendment, the Minister may be grateful that we on these Benches cannot offer any support for the amendments of the noble Baroness, Lady Turner. I do not know whether the Government want that support at this point, but I offer it to them for what it is worth.

As the Minister will be aware, we made it clear at Second Reading that we support the creation of a corporate manslaughter offence but we do not support the idea, expressed in these amendments, of adding layers to the existing manslaughter offence, which would undermine the central principle of the Bill. Therefore, we shall not offer any support to the noble Baroness should she wish to return to the amendments at a later stage.

Lord Lloyd of Berwick
I am uncertain whether to support this amendment or not. Paragraph 54 of the Explanatory Notes seems to suggest that the intention of the Government was at some stage not to include secondary liability, yet here we find it excluded. As a matter of general principle, I entirely agree with the noble Lord, Lord Wedderburn, that, in the ordinary way, any offence can be committed by the primary offender but also by a secondary. I see no reason why secondary liability should be excluded.

The Advocate-General for Scotland (Lord Davidson of Glen Clova)
The amendments in this group plainly address the position of individuals. The Government certainly share the objective of wanting to ensure that health and safety is given the priority it requires and deserves at all levels within a company. Health and safety management must be led from the top, and directors and other senior managers must give a clear and positive lead.

However, the aim of the Bill is to find a new way of defining the circumstances in which a corporation, as distinct from individuals, should be guilty of an offence. Our focus is on corporate failures which, by their very nature, are unlikely to be the responsibility of any single individual. Where individuals are personally responsible for a death, or related health and safety failings, the law already sets out a framework for holding them to account through gross negligence manslaughter and regulatory offences.

There exists a problem, however, where failings are more widespread in an organisation because the law of manslaughter hinges corporate liability on personal liability. The test in the existing law—the “directing mind” test—works well enough in small organisations, as many have recognised, where a relatively short chain of command can make it easier to establish that a person at the top of an organisation has been acting grossly negligently. Corporate liability can then follow. However, that does not reflect the reality in more complex organisations, where failures in the chain of management are rarely solely attributable to the acts or omissions of specific individuals. That is why the only successful corporate manslaughter prosecutions have been brought against small companies, which is the problem the Bill seeks to address.

The issue is starkly illustrated by the circumstances of the Hatfield crash. In the subsequent prosecution of individual managers, either the trial judge ruled that there was insufficient evidence or acquittals were returned. Yet, in sentencing Balfour Beatty and Network Rail, the judge commented:

“I have to say that I regard the failures of Balfour Beatty … as one of the worst examples of sustained, industrial negligence in a high risk industry that I have ever seen”.
 

That starkly illustrates the need to move to a wider basis for testing corporate accountability for manslaughter.

The Bill’s focus is therefore on the question of corporate liability for corporate failure. It introduces a new way of assessing gross negligence within an organisation by taking the focus away from the conduct of individuals and placing it on gross failings in the overall management of activities within the organisation. As described at Second Reading, the test moves away from who managed the company, to how its activities were being managed. Yet this approach is not suitable for holding individuals to account; a point acknowledged by the Law Commission when they examined the issue. Its intention, with which we agree, was to create a distinct offence for organisations, which would stand in parallel to manslaughter, adapting it to their distinct circumstances. It was not intended that this should be a basis for redefining individual liabilities, however, which should remain as set out by existing offences.

The argument is made that organisations do not do things, people do—fair enough—but it does not follow that organisational failures can be pinned on specific senior individuals. Having established that corporate liability will not be hinged on the acts of individuals, there are difficulties with trying to turn that situation around and establish that individuals should be liable for the newly defined corporate failure. It certainly would not be feasible to impose sanctions such as imprisonment on individuals solely as a result of the corporate conviction. Individual criminal liability must rest on the individual conduct or admissions of that person. As the law stands, individuals can already be prosecuted for manslaughter where their gross negligence causes a death.

Health and safety law also provides sanctions against individuals whose conduct has contributed to health and safety failures. The new offence does not alter those provisions, a point to which I shall return.

18:30:00

The amendments offer two variants for addressing individual liability. The first, through the amendment tabled by my noble friend Lady Turner, is to establish a distinct offence that can be committed by an individual. Apart from the general points I have made about individual liability, there are a number of reservations about this proposal. In particular, if a person is guilty of a gross breach of a duty of care that has caused a person’s death, they can already be prosecuted for manslaughter and will then be liable to imprisonment for life, a much higher penalty than the maximum of six months proposed by the amendment. I am not therefore clear that the new offence would add a significant new liability or deterrent to that provided by the law.

Baroness Gibson of Market Rasen
Can my noble and learned friend say how many cases have been taken over the past six years under the health and safety legislation?

Lord Davidson of Glen Clova
I regret that I do not have that figure to hand. Certainly more have been taken than have resulted in a conviction. I fully recognise the point—

Lord Hoyle
If my noble and learned friend does not have the information to hand, could he let us have it?

Lord Davidson of Glen Clova
Certainly that shall be done.

Lord Hunt of Wirral
It may assist the Minister to know that over the past 10 years, there have been only seven successful prosecutions for corporate manslaughter. Those were all of small companies, where it is easier to satisfy the current law. As I understand it, the noble Baroness, Lady Scotland, said that she anticipated 10 additional prosecutions under this legislation, making around 10 to 15 a year in total. If I am incorrect, no doubt the noble and learned Lord will tell the Committee.

Lord Davidson of Glen Clova
I am certainly in no position to gainsay those statistics. I will adhere to the undertaking to get the information that has been requested.

Other amendments propose to address this issue through secondary liability, but there are distinct problems. For example, there is a proposal to introduce a new basis on which a person could be guilty of manslaughter through gross negligence. We are not persuaded that this is appropriate. If a person has been grossly negligent and, as a result, has been responsible for someone’s death, they should be prosecuted for the existing offence, not on a secondary basis for the corporate offence. Perhaps more importantly, 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 for a conviction for manslaughter.

To show that an individual aided, abetted, counselled or procured an offence, it would generally be 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, this would mean that an individual would need to be aware of the picture of failing in the organisation, at least contemplate it being grossly negligent, and act in a way that supported or sought to bring that about. But in those circumstances, it is likely that an individual charge of manslaughter would be possible.

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. As well as assessing individual liability in terms of existing criminal offences, such as manslaughter and under health and safety law, the police and prosecution would need to explore any potential differences under the provisions relating to secondary liability. We are not persuaded that that would be a useful exercise.

Finally, as regards Amendment No. 92 in the name of the noble Lord, Lord Wedderburn, the first two subsections touch on the central issue of secondary liability, which I have already sought to address. I will therefore confine my remarks to subsections (3) and (4) of the proposed replacement for Clause 16.

We are not satisfied that the reference to the law of conspiracy is appropriate. Under the Criminal Law Act 1977, a conspiracy involves a number of people agreeing that a course of conduct will be pursued that will involve one of them committing an offence. It is difficult to envisage the application of this test to the new offence because this offence will, uniquely, be capable of being committed only by an organisation. For the test for a conspiracy to be satisfied, it would therefore be necessary for the legal entity, such as the corporate body itself, to be a party to the agreement, which we doubt is a practical proposition.

As to linking an offence under the Bill with any civil liability for damages, we are alive to the concern that it should not be necessary for the circumstances of an offence to be reconsidered at length in civil proceedings if a conviction has already been gained in a criminal trial. The law would, however, appear to cater for this already. Section 11 of the Civil Evidence Act 1968 provides a rebuttable presumption that a person convicted of an offence committed that offence. Conviction will therefore provide evidence in civil proceedings of a gross breach of a duty of care in the law of negligence.

I therefore hope—perhaps fondly—that noble Lords are to some extent persuaded that the focus we have placed in the Bill on corporate liability is the right one and that, on the basis of these remarks, my noble friend will feel able to withdraw the amendment.

On a personal note, I observe that on one occasion, for a brief period, I was an employee of senior management, two of whom are present in this Room; I refer to my noble friends Lady Turner and Lord Hoyle. On that occasion, I never felt that senior management was doing anything other than looking after my best interests.

Lord Boyd of Duncansby
I should like to ask my noble and learned friend about the position in Scotland. One difficulty that might be foreseen there is that the offence of culpable homicide has a different basis from that of manslaughter in England and Wales. It is based on gross negligence in England and Wales, whereas, in Scotland, culpable homicide is based on recklessness. Might that raise particular difficulties if we admitted the possibility of secondary liability? It is difficult to be art and part, guilty of an offence of corporate manslaughter, when the law in Scotland on individual liability is based on recklessness. A company in Scotland could be charged with corporate homicide but the individual directors might be charged with culpable homicide under the existing common law. In those circumstances, does my noble and learned friend think that there would be a difficulty in providing separately for secondary liability on the basis of the amendments? I refer in particular to those in the names of the noble Lords, Lord Razzall and Lord Lee, which would exclude Clause 16 altogether or, in the case of Amendments Nos. 90 and 91, change the wording in subsection (2) from “an individual cannot” to “an individual can”.

Lord Davidson of Glen Clova
I am obliged to my noble and learned friend Lord Boyd. He has particular experience of the complexities of culpable homicide and the question of corporate homicide in Scotland as a result of the major case, Transco, which resulted in a £15 million fine, the largest ever in the United Kingdom.

I trust that this will not bore those who are not of a Caledonian disposition, but the peculiarity of the different area—from which the culpable homicide crime arises in Scotland—and the way in which it fits in with the possibility of creating difficulties with the notion of secondary offences, raises an interesting point in the context of the proposal before us. This interesting debate is likely to be more a matter that falls within the purview of the Scottish Executive, as one is moving into the devolved area of Scottish criminal law. It may be for the Scottish Executive—a body of which my noble friend was but lately a Member—to pursue that point.

Baroness Turner of Camden
I thank all noble Lords who have participated in a very interesting debate. First, I say to my noble friend that he has not dealt in his comprehensive response with the fears that unions have about the operation of this legislation when it is put into effect. As I made clear at the beginning, their concern is that the legislation, which they generally support, will not bite sufficiently for it to have the necessary effect. One of the reasons why we think pinning down individual liability is important is because we feel that this will help to change the culture of the company.

There are many companies, as we know—in the construction industry, for example, to which the noble Lord, Lord Hunt of Wirral, referred—which have a bad record in relation to accidents, including fatal accidents. If one is to change the culture of a company, it is important that it is made absolutely clear that individuals who make decisions that result in death will have to answer for that somewhere or other. The question of individual liability is very important to the public. I received a long document from an organisation representing families of workers who had been killed in industrial accidents. It is clear that it is concerned to ensure that there should be individual liability for the accidents which, in some cases, have robbed families of the breadwinner and created terrible stress for them. It is important to ensure that the issue of individual liability is made absolutely clear, tied down and made a requirement of this new legislation.

I also thank my noble friend Lady Gibson for her comments on health and safety. She has long experience of the Health and Safety Commission and she made it clear that there had not been many cases of prosecution when she was in office, and that those that had taken place were mainly in respect of small companies. As to secondary liability, I do not feel that my noble friend the Minister has adequately dealt with the strong arguments advanced by my noble friend Lord Wedderburn. We shall be looking at all that between now and Report to see whether we can come back on this issue of secondary liability.

Lord Wedderburn of Charlton
Does it also not follow from what has been said so interestingly by noble and learned Lords about Scottish law that Clause 17 cannot stand in its present state? If the clause applies only to English law, as I understand was the submission, because it refers to manslaughter by gross negligence, then something must be said in the Bill about the common law in Scotland. Either it survives or it does not. That is another problem we will have to come back to on Report.

18:45:00

Baroness Turner of Camden
I thank my noble friend for that interjection. Quite frankly, as my noble and learned friend will understand, we are not at all happy about the response that we have had to our submissions this afternoon. We shall look at the amendment very carefully and may bring it back on Report with a different form of wording but the same objective. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 35 not moved.]

Clause 3 [Public policy decisions, exclusively public functions and statutory inspections]:

Lord Lee of Trafford
moved Amendment No. 36:

36: Clause 3 , page 3, line 31, leave out subsection (1)

The noble Lord said: The purpose of Amendments Nos. 36, 37 and 42 is to provide an alternative to the effect of removing Clause 3, which would result in the absolute removal of public functions exemptions, as we shall discuss later.

Amendment No. 42 would mean that bodies performing public functions would not be completely exempt but would require juries, when considering any cases, to take account of relevant factors when deciding whether there has been a gross breach and whether a body is thus potentially vulnerable to a corporate manslaughter charge. I beg to move.

Lord Henley
I thank the noble Lord, Lord Lee of Trafford, for introducing Amendments Nos. 36 and 42 and for speaking to Amendment No. 37, in the name of both the Liberal Democrats and ourselves. Our amendments and those of the noble Lord, Lord Lee, amend the Bill in the same place but would have rather different outcomes. I express my support for Amendment No. 42, which performs a very similar function to Amendment No. 53 in my name and that of my noble friend Lord Hunt. I cannot quite see eye to eye with the noble Lord on Amendment No. 36, which would remove public policy decisions. However, I will address the points it raises after speaking to the amendments in my name and that of my noble friend.

My noble friend and many other speakers in the debate on amendments two groups ago made a compelling case for the inclusion of custodial services within the remit of the Bill. The same broad principle lies behind Amendments Nos. 37 and 38. Amendment No. 37 would remove the exemption for exclusively public functions, while Amendment No. 38 would extend the duty of care in respect of exclusively public functions. I am well aware that if Amendment No. 37 were to be accepted—I imagine that that is unlikely—there would be no need for Amendment No. 38. Amendment No. 40 is the only option for the improvement of Clause 3; it would remove the exemption for statutory inspections.

The amendments are tabled very much in the spirit of those on custody, which had near-universal support. However, as the Minister in another place admitted, there is a duty of care with respect to custody. The amendments in this group attempt to restrict the immunity afforded to public bodies, especially with regard to their exclusively public functions and statutory functions. That is aligned with our recent debate on custody. However, I acknowledge that Clause 3 covers exclusively public functions, where no duty of care exists. Indeed, with respect to Amendment No. 40, no duty of care is currently imposed on regulators.

The function of Clause 3 is to assert that where a duty of care exists, it will apply to the offence only to the extent set out by Clause 2. As the Bill stands, it is only the existing duties of care owed by an employer to its employee or as occupier of premises with respect to public policy decisions, exclusively public functions and statutory inspections which apply under the offence. It is important to be clear about how these clauses relate to one another. My amendments would therefore open up the possibility of challenging the law of negligence for the purposes of considering a corporate manslaughter case. Where a prosecutor wished to take a public body to court for a death caused by gross negligence in the carrying out of exclusively public functions, they would be entitled to bring a test case to establish a duty of care in order to bring proceedings under the offence.

In our ideal position, there would be no question that public functions were exempt from consideration under the Bill. Indeed, cancelling that exemption would avoid opening up the law of negligence to test cases under the corporate manslaughter Bill; Amendment No. 37 would achieve that. However, should the Government refuse to give way on that point, it is important that the Bill leaves enough scope to provide greater incentives for the improvement of public safety through the law of negligence. Amendments Nos. 38 and 40 would allow for that scope were exclusively public functions carried out so badly that they resulted in death. There should be an opportunity to analyse in court whether those actions were so grossly negligent as to merit the establishment of a duty of care for the future safety of the public.

Amendment No. 40 raises the question of who should hold responsibility should a duty of care arise. I contend that, first and foremost, the functions of a public corporation are that corporation’s responsibility. However, where that corporation acts in a grossly negligent manner and an inspectorate fails to exercise its duty to hold that corporation to account, resulting in a death, there is no reason why the inspectorate should be exempt from prosecution. I shall listen to the Minister’s response to these matters with great interest.

Lord Lyell of Markyate
I support Amendment No. 37. I have listened carefully to the arguments on Amendment No. 36 but, like my noble friend, I have a little anxiety about making public policy decisions, particularly on resources, justiciable by the courts. On the other hand, as will be clear from my earlier speeches, I cannot see why a public authority should simply be regarded as liable in cases where it owes a duty to its employees or an occupier’s liability. I will be interested to hear what the Minister says about that on behalf of the Government.

We have had an extensive debate about custody. I listened to the noble Lord, Lord Bassam, carefully. He will not be surprised to hear that I disagreed with his arguments that these were matters of resources and public policy, when most of the Committee was convinced that it was a matter of management, organisation and failures thereof. We invite the Government to engage in argument on why public authorities should be allowed not to be liable in those circumstances.

Lord Bassam of Brighton
Does the noble and learned Lord accept that there is a relationship between policy, resources and issues of management?

Lord Lyell of Markyate
Yes, but that is not a good enough answer. Of course there is a relationship. If the Cabinet decides that limited resources shall be given to the Prison Service, and that is why it is so badly organised that a prisoner dies in his cell, a jury would not convict if Clause 3(1) were left in place but Clause 3(2) removed. The jury would conclude that it was not the fault of other parts of the Home Office or the prison governors, but a policy decision at Cabinet level. That would provide a let-out. Unsatisfactory as that might be, it would show clearly at the end of the court case where the blame lay and the Government would have to face up to that. The reality is that in the majority of cases—and in the Mubarek case that we have discussed in some detail—it would seem to have been a failure of management organisation and care to ensure that what had in theory been organised took place in practice. I see no reason why public authorities should not be held liable in those circumstances.

I hope that debate in this Committee and on the Bill will not focus solely on the Mubarek case or on the question of custody. There are much wider issues involving public authorities. There might be situations in which there was such gross negligence by those for whom public authorities were responsible that sadly one or more people died—although we hope that will not happen, of course. We want to focus on those situations, and we want the Government to justify their exemptions. They must be able to persuade this Committee and the public that there is a sound reason for limiting the degree of Crown liability. The Government have really not made very large strides with Crown immunity, which was extended, sometimes with the instance or encouragement of the Opposition, during the 18 years when I supported a Conservative Government—and it was right that it should have been. In so far as complete Crown immunity is not claimed in this Bill, that is a ground for support—but it is then clawed back far too much. I question the justification for the heavy restriction on Crown immunity brought about by Clause 3(2), and I look forward to hearing the Minister’s answer.

Lord Wedderburn of Charlton
Does the noble and learned Lord, Lord Lyell, think that there is perhaps a slight danger in removing Clause 3(2), which at least reiterates the fact that liability can exist under Clause 2(1)(a) and (b)? We have already seen that the Government appear to accept that whoever is the occupier of prisons and other places of custody can be liable. If a brick falls off the wall and strikes someone dead, they are relying on that being different from the public function being exercised when someone gets beaten up in prison in a way that is perfectly foreseeable, as the noble Lord, Lord Ramsbotham, described. I do not suggest that that is an answer to the amendment that the noble Lord is moving, but I think that he would want to keep a reiteration at least of the occupier’s liability, even though it is absurd for the Government to take the position that it is a liability totally different from the other instances of people being killed in custody.

Lord Lyell of Markyate
I am grateful to the noble Lord. What he says arises in part from the point that the noble and learned Lord, Lord Lloyd, raised in relation to occupier’s liability. I confess that I have not looked into this in detail, but I would certainly expect the Prison Service as of now to be liable to a prisoner if a brick fell off the wall and killed him in circumstances in which the prison authorities should reasonably have known that the wall was in disrepair. Part of the answer to the noble Lord, Lord Wedderburn, is probably that if the walls of the prison had fallen into such extreme disrepair that it amounted to gross negligence—which seems slightly unlikely, but I suppose is possible, and the noble Lord, Lord Ramsbotham, might enlighten us—the authorities could be liable for corporate manslaughter as a result of gross negligence in their breach of occupier’s liability duties. In a sense, the noble Lord has caused me to follow a slight red herring, and I very much hope that the noble and learned Lord, Lord Davidson, will not use that red herring to avoid giving answers to what I hope were the reasonably clear questions that I put.

19:00:00

Lord Davidson of Glen Clova
This debate is framed by the wider question of the position of public bodies under the Bill, and I wish to consider that wider context. There are, of course, important questions about the extent to which the offence does in fact extend to public authorities and the width of the term “exclusively public functions”.

I hope that, in the earlier discussion on duties of care, the Committee was reassured that the exemption for “exclusively public functions” does not restrict the application of the offence to public authorities to their capacity as employer or occupier. However, that is not to say that the Bill does not draw clear lines to exclude a number of activities performed by public bodies.

Our approach has been informed by a number of considerations. The new offence is rooted in the need for employers to provide safety in the workplace, to ensure that employees have safe systems of work and that work sites are safe places to be. The Bill applies widely to the responsibilities that the Crown and other public sector bodies have as employer and occupier. The offence does not exempt the duties that fire and ambulance authorities have to ensure safe working practices for their staff and, similarly, police forces are not exempt, except in very limited circumstances, for the working conditions of their officers. The same is true of the Armed Forces outside the area of combat operations.

I submit that that extension of the law should not go unremarked. Even to this extent, the Bill will bring important opportunities to bereaved families to see proceedings brought against Crown bodies arising out of work-related deaths. For example, in 2001, John Wynne, a Royal Mint employee, was killed by a 6.5-tonne furnace falling from a defective crane hook. A number of failings in the Royal Mint’s management were identified: inadequate training of employees; failure to maintain equipment, despite an inspection identifying the defect and advice for a rigorous maintenance regime; unsafe systems of work; a general failure to conduct a risk assessment; and a failure to assess risk following a near-miss incident reported by employees where the furnace had fallen off its hook. I must be careful about suggesting precisely what level of fault was involved, because questions of corporate manslaughter were of course irrelevant. But it is clear that, if such circumstances arose in the future, the principle of Crown immunity would not prevent the consideration of corporate manslaughter charges under the Bill.

As employer and occupier responsibilities are covered, the exemptions primarily deal with how public bodies carry out their public responsibilities. In many circumstances, the civil courts have already considered that question and have concluded that duties of care should not be owed. They have taken into account the difficulty of courts seeking to review decisions that are rooted in matters of public policy and the risk of encouraging an overly defensive or cautious approach in those seeking to safeguard the public from risk or danger. We believe that those principles are equally applicable here.

The fact that duties of care are limited in this respect also underlines that, to a large extent, the effect of the exemptions is to make it clear in the Bill that certain activities are not covered by the offence, rather than to substantially exclude activities that would otherwise be covered. We believe that there is value in this. It ensures that the public and investigators can be clear about the application of the new offence and that they will be able to anticipate clearly what is and is not covered.

Finally, we have taken careful consideration of the position of public authorities. Public bodies frequently operate under a statutory framework, which requires them to perform particular functions. They do not have the option of entering or leaving a market, and their activities must be performed in the wider public interest.

Public bodies will also often hold special authority or perform functions that the private sector does not or cannot do on its own account. Because of that and the fact that these bodies operate on behalf of the public, they are already subject to a strong and public framework of standards, monitoring and accountability. It includes, for example, a requirement to hold independent investigations into deaths where the state is involved. That has led to the establishment or involvement of a number of specific bodies in investigating deaths, such as the Independent Police Complaints Commission and the Prisons and Probation Ombudsman in its role in investigating deaths in prisons, immigration centres and approved probation premises. In particularly serious circumstances, a full public inquiry may be warranted.

Specific remedies also exist for the actions of public authorities, including judicial review and the Human Rights Act. That Act not only places an important set of obligations on public bodies to act in a particular way but provides remedies where those obligations are not met. More widely, Ministers are accountable to Parliament for the exercise of their functions and behind that, for wider questions of public policy and strategic management for both central and local government, lies the accountability of the ballot box.

There are, therefore, good reasons for treating public bodies differently from other organisations, and such factors have underpinned the very long-standing principle of Crown immunity. There are those who would argue that those factors still weight the balance in favour of retaining Crown immunity and that to invite the criminal law into the workings of government is to draw people into difficult territory, asking them to consider issues such as the balance of resources and the way in which public bodies discharge statutory responsibilities, which the criminal law is ill suited to deal with.

However, the Government have taken the wider position and have recognised that there is a strong public interest in ensuring high levels of accountability where management failure in a public authority has lain behind a death. But we believe that distinctions remain to be drawn about the sort of circumstances in which it is right to involve the criminal law of gross negligence.

The position in the Bill represents the culmination of a very careful process of consideration about how that line should be drawn. Any line such as this is, of course, open to criticism, and some argue that no line should be drawn at all. Others argue that, if no line can be drawn within the functions of the Crown, that underlines the importance of keeping Crown immunity intact. We do not accept either position as correct or helpful.

We believe that bringing the criminal law into the realm of government for the first time represents a considerable extension of the law, both in principle and practice, and it is only right that such a step is taken cautiously. We have been bolder than applying the offence only to public authorities as employer and occupier, but we need to think very carefully before extending the offence to issues that go to the heart of the public responsibilities of government.

I now turn my focus to the remarks on the three exemptions that the amendments would remove. Clause 3(1) deals with decisions involving matters of public policy. It is intended to deal with essentially high-level decisions about the allocation of resources, the weighing of competing interests or the establishment of priorities. Examples might be a decision by a primary care trust not to fund a particular treatment or a decision by a local council to allocate its resources in a particular way. In either case, not providing the treatment or service in question might be a factor in a person’s death.

The courts have already recognised that decisions of this kind taken by public authorities are not suitable for review in the courts. In most cases, therefore, no duty of care would be owed in respect of these activities in any event. The exemption provides clarity about what is and is not covered, and removing the exemption would lead to some doubt about the application of the new offence in this respect. It would risk encouraging an overly defensive or cautious approach in public authorities and risk distorting decisions about priorities for public resources. We do not believe that that would be in the public interest.

However, I must make it clear that this exemption is not about the management of resources. Once a public body has embarked on a particular activity, it must do so with full respect to its safety responsibilities and it cannot plead a lack of resources as a defence. The exemption does not change that.

Clause 3(2) deals with exclusively public functions. In an earlier debate, we considered how far that extends in relation to the activities of public authorities. I explained that the intention was to cover a narrow band of activities that are performed uniquely either by the Government or on their behalf, in particular where the exercise of a function requires statutory powers, such as the holding of people in custody. Those are, in our view, intrinsically public functions, and their management and organisation will frequently be closely linked to questions of public policy, as we explored in the context of custody. As such, we consider that the organisation and management of these functions, with which this offence is concerned, are more appropriately the subject of wider forms of accountability, such as public inquiries and other independent investigations, than can be achieved under the criminal law.

Clause 3(3) deals with statutory inspection. This exemption is partly about clarity and partly about ensuring that statutory inspectorates do not become overly officious simply to protect themselves from prosecution. Those who followed the debate on regulation will be acquainted with the concept of regulatory creep in this regard. It would be rare that a duty of care would be owed in relation to statutory inspection under the normal rules of negligence. Inspection and enforcement work takes place at one remove from the carrying on of activities that affect members of the public, and there will therefore be questions about whether the relationship is sufficiently proximate to give rise to a duty. There are also questions of whether it would be just, fair and reasonable to impose a duty. This exemption puts it beyond doubt that no relevant duty will arise.

That clarity is important to prevent statutory bodies becoming overly cautious when carrying out regulatory work. In all cases, statutory inspectors must weigh the risk of harm against the regulatory burden to the organisation being inspected. We do not want to add to that assessment a fear of a risk of prosecution if the advice is not quite cautious enough. There would be little incentive for such bodies not always to take the safe route and advise caution to minimise the risk of prosecution. Nor do we think that it would be desirable to encourage companies to think that they might transfer the risks of managing health and safety to inspectors.

It is important that we consider carefully the circumstances in which public authorities should be subject to the Bill. The Government believe that those need to be wider than responsibilities as employer or occupier but that a line needs to be drawn between the sort of activities where public authorities are in no different a position from that of the private sector and those where they are exercising public functions. In our view, it is too great an extension of the law to say that the discharge of public responsibilities, intrinsically involving questions of public policy, should be subject to the criminal law.

If the Committee believes that lines of this nature cannot be drawn, we shall of course be prepared to consider further the question of whether Crown immunity should be abrogated at all. But, at this stage, I urge the noble Lord to withdraw his amendment.

Lord Lyell of Markyate
I am grateful to the noble and learned Lord but I should be even more grateful if he could clarify one or two points. He gave the example of the Royal Mint having acted in relation to a heavy machine on the hook of a crane. Rightly, he did not decide whether that gave rise to corporate manslaughter or whether it would have done in the future, but at least it got sufficiently close to illustrate the argument. Did I understand the noble and learned Lord to say that, today, the Royal Mint would be caught under Clause 2(1)(b) as the occupier of premises? If I understood that correctly, in those circumstances how does Clause 2(1)(b) relate to Clause 2(1)(c)(ii), which concerns,

“the carrying on by the organisation of any construction”—

let us ignore the word “construction”—

“or maintenance operations”?

The case given seemed to involve a very serious failure of maintenance.

If it was reasonable to catch the Royal Mint—one of the bodies listed in Schedule 1—for corporate manslaughter in those circumstances, and if it falls under Clause 2(1)(c), why should not all public authority operations which fall under paragraph (c) be similarly caught? That is what we are asking for, and it seems entirely reasonable. I look forward to hearing what the noble and learned Lord says.

19:15:00

Lord Davidson of Glen Clova
First, I should clarify that—treating it as an example without any particular facts or employer and simply for the purpose of this debate—one would not be looking under Clause 2(1)(b) as a duty owed as an occupier of premises, but rather under Clause 2(1)(c) or perhaps Clause 2(1)(c)(iv) relating to the use or keeping by the organisation of any plant, vehicle or other thing. I was trying to get across the point that there is a distinction between the position of employer and occupier—the Clause 2(1)(c) duties—and what might more properly be regarded as the public functions that I sought to characterise as public functions of the organisation. I trust that that gives some clarity, but possibly not.

Lord Lyell of Markyate
It may give clarity to other Members of the Committee, but I am a bit stupid and it does not give complete clarity to me. What is the justification for excluding all those items in Clause 2(1)(c) in relation to public authorities? All afternoon, I have been trying to get at why the Government are restricting the liability of public authorities under the Bill to Clause 2(1)(a), in other words to their employees, and Clause 2(1)(b) as occupiers of premises. What is wrong with making them liable in the circumstances of Clause 2(1)(c)? Can the Minister explain in the practical language that my noble friend Lord James uses when he gives examples?

Lord Davidson of Glen Clova
The fault is doubtless mine. At the beginning of my response, I sought to set out the basis on which one looks at a public authority and finds within it public functions that by their nature are not suited to being levered into this type of offence because they are in broad areas, such as considering priorities within policy, rather than the specific areas that Clause 2(1)(c) identifies. I am happy to provide the noble and learned Lord with a copy of what I sought to say if that would elucidate matters. I have tried to get across the reason why there is a difference with public functions.

Lord Lyell of Markyate
I apologise for coming back again, but we are on such a central issue that it is worth a minute or two. In a way, I was encouraged because I think the Minister is not only seeing my point but seeing its merit. It is perfectly obvious that none of the points made in Clause 2(1)(c)—duties owed in connection with the supply by the organisation of goods or services, construction, maintenance, commercial activities, the use or keeping of plant, vehicles or other things—is relevant to public policy. In my opening speech, I expressed my doubt about whether we should cut out the points in Clause 3(1) where we are dealing with decisions about matters of public policy. We are focusing on Clause 3(2), and what the Minister has said so far provides rather good arguments for omitting it and widening public authority liability in all these sound practical areas where, whether they relate to a public authority or a private business, one is very much in the same position.

The Minister used one argument which I did not find terribly attractive—I would accept that he put it charmingly. He said that it might make statutory bodies over-cautious if they thought that the legislation might give rise to charges of corporate manslaughter and they might not permit anything—fire officers are quite often pretty cautious, some people think, but they have a judgment to make.

One might equally argue that one should not have corporate manslaughter in the commercial sector because it would all become very expensive and that UK plc would become less competitive and do less well. That argument would not find great favour here, nor does the Government’s argument about over-caution.

Lord Davidson of Glen Clova
I regret that I must disappoint the noble and learned Lord in that I do not accept that the terms of Clause 2(1)(c) provide an argument as to why Clause 3(2) is somehow lacking in relevance. The point that Clause 3(2) seeks to get across is that where an exclusively public function is concerned, an exemption should apply. Per contra, Clause 2(1)(c) sets out descriptions of items which are plainly not within the notion of public function. We may simply have to agree to differ on this point. One needs to draw a particular line in relation to public authorities when one moves into the area of public policy.

Lord Lee of Trafford
I am a little reluctant to intrude into what is obviously a rather personal debate. I am sure that we will return to this matter on Report, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 37 to 42 not moved.]

Clause 3 agreed to.

[Amendment No. 43 not moved.]

Lord Bassam of Brighton
It may be a convenient moment for the Committee to adjourn until Wednesday 17 January at 3.45 pm.

The Committee adjourned at 7.24 pm.