Corporate Manslaughter and Corporate Homicide Bill

Public Bill Committee, 24 October 2006.

Standing Committee B

Clause 1

Roger Gale (Conservative, North Thanet)

Good morning ladies and gentlemen. An hon. Gentleman is indicating that he would like to take off his jacket. As far as I am concerned, once permission has been given it is in order to remove jackets while I am in the Chair. I cannot speak for Mr. Benton, but I am sure that he will be equally careful of the comfort of members of the Committee.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I beg to move amendment No. 99, in page 1, line 20, leave out ‘far’.

Good morning, Mr. Gale. It is nice to start with a simple probing amendment. We want to probe the Government on two issues relating to the test whether or not an offence has been created. The amendment would make the test not so harsh and the offence less hard to prove. Given that the offence is very serious, the Minister might rightly say that the test whether it had been committed needs to be hard. However, can he elaborate on his thinking a little? Some correspondence has suggested that the test will be difficult for the prosecution to meet. Given that the purpose of the Bill is to ensure that, when corporations commit a serious offence that leads to the death of an individual or individuals, they can be held to account, the harder that we make that test, the more difficult it will be to prove.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I understand that we are discussing a probing amendment, but does the hon. Gentleman accept that, when we consider other aspects of the criminal law, particularly driving offences, it is well established that the driver should fall far below the required standard for a charge of dangerous driving, and simply below the required standard for a charge of careless driving? The test is therefore not unknown to the criminal law and it seems to work reasonably well.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I am grateful to the hon. Gentleman. He anticipates something that I was about to say, partly in defence of the Minister. It is important that we tease out the Government’s thinking on the provision, given that it will be one of the key tests that are considered by juries when the offence is being prosecuted. The hon. Gentleman was right to say that the test is certainly well known in relation to driving offences, but therein lies the second point that I wanted to explore with the Minister.

The hon. Member for Rugby and Kenilworth (Jeremy Wright) might be an expert in such matters and may wish to intervene again, but I understand that a driving offence comes under the umbrella of civil law, whereas we are discussing the creation of a criminal offence. When the Law Society and the Association of Principal Fire Officers discussed the point with the Joint Committee, they expressed the view that another approach was possible—that, rather than use the test of falling far below the required standard, which could seem unclear in some minds, it would be better to use the Adomako test, which defines a gross breach as something so grossly negligent as to be criminal. Both the Law Society and the Association of Principal Fire Officers thought that that might be a better way in which to deal with matters. However, most people who spoke to the Select Committee said, like the hon. Member for Rugby and Kenilworth, that the tests under the driving offences legislation are probably better understood. That said, I thought that it was right to start a mini-debate so that the Minister can be clear that we are getting the provisions right on a crucial point.

James Brokenshire (Conservative, Hornchurch)

First, I apologise for the fact that my hon. Friend the Member for Beaconsfield (Mr. Grieve) is not here. He is travelling back from Northern Ireland and hopes to rejoin the Committee around 12 o’clock or thereafter—it depends on how his flight goes. I welcome this opportunity to speak from the Opposition Front Bench as guest spokesman, and I welcome you to the Chair, Mr. Gale.

The hon. Member for Kingston and Surbiton (Mr. Davey) seeks to address in his amendment the ease with which it will be possible to prosecute an offence under the Bill. Therein lies one of the big questions: are we aiming at a small number of significant cases, or are we seeking a wider application for the Bill? My understanding is that by deleting “far”—which the hon. Gentleman conceded would be a small but far-reaching and significant amendment—one would have to prove merely that someone was negligent, rather than that he was grossly negligent. If our aim is to limit the Bill’s scope to a small number of serious cases, that distinction between negligence and gross negligence is fundamental.

The hon. Gentleman highlighted the House of Lords case of Adomako, relating to the law of involuntary manslaughter—almost gross negligence manslaughter. The test was whether, in having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances to amount in the jury’s judgment to a criminal act or omission. That approach was referred to during the Select Committee discussions. We have already heard from my hon. Friend the Member for Rugby and Kenilworth about a test of falling far below a given standard. Although it could be said that those are two different approaches, a significant difference from what might be considered an appropriate standard still has to be shown.

The amendment would undermine the fundamental distinction between someone being negligent or grossly negligent. I fear that if we took that approach—I understand that it is a probing amendment to tease out from the Minister the thinking on how the provision was arrived at—we could end up with confusion between manslaughter, whether the Adomako test or some other test denoting gross negligence were used, and corporate manslaughter or corporate homicide, which would use a much easier test. If we are using the concepts of manslaughter or corporate homicide, there needs to be some symmetry between the two approaches—in other words, there has to have been some act that is so outwith the normal standards that we seek to punish it as manslaughter.

A different approach could be taken. We will come to amendments tabled by Conservative members of the Committee to probe whether it would be more elegant and straightforward in securing convictions and attaining certainty to take the same approach as is taken in health and safety legislation. We will discuss that when we debate those amendments. Nevertheless, it is helpful for us to articulate our approach now.

I understand the hon. Gentleman’s motives for tabling the amendment, but in the context of limiting the scope of the legislation to a small number of serious cases and of providing symmetry between corporate manslaughter and manslaughter that would apply to an individual, I am not inclined to support the amendment, because it would confuse the two sides of the issue. I understand why he tabled it and the need to get clarity about the Government’s thought processes.

Jeremy Wright (Conservative, Rugby and Kenilworth)

The hon. Member for Kingston and Surbiton will already have gathered from my intervention that I am not wildly in favour of his amendment. Another reason that I am not in favour of it relates to the broader exemptions for various public bodies, the police service and the armed forces. I—and many of my hon. Friends, I suspect—will be arguing that those exemptions are drawn too widely and that it should be possible, given the safeguards within the Bill, to remove or to reduce some of them.

My fear about the amendment is that it would undermine that argument. It will be part of my case—and that of others, I am sure—that we can be confident that if the jury were given the obligation to find that the gross breach was something falling far below what would be expected of the organisation in question, it would reach that finding only in a limited number of very serious cases, as my hon. Friend the Member for Hornchurch (James Brokenshire) says. That is the type of safeguard on which we would rely in order to say that the other exemptions can be drawn more narrowly. For that reason also, I would not support this amendment.

Gerry Sutcliffe (Labour, Bradford South)

Good morning, Mr. Gale. I thank the hon. Member for Kingston and Surbiton for the spirit in which, through his amendment, he has tested the Government’s thinking. I also welcome the hon. Member for Hornchurch on his guest appearance on the Front Bench. I am sure there will be many more such appearances in future.

We have had a useful discussion. We want a workable test, not one that is impossible to meet. However, for an organisation to be convicted of the new offence the relevant management failure must have been gross. That is defined in terms of conduct

“that falls far below what can reasonably be expected of the organisation in the circumstances.”

That means that companies will not be guilty of the offence on the basis of minor breaches of health and safety legislation, or when genuine efforts have been made but the appropriate standard not quite met. They will be guilty of the offence only when the conduct falls far below reasonable standards.

The new offence is aimed at the worst cases of corporate mismanagement. The threshold of “gross breach” is the one that currently applies in the law of manslaughter, as has been said by the hon. Member for Rugby and Kenilworth. We think that that remains the appropriate threshold for an offence of such seriousness. If the amendment were to be accepted, the threshold for the new offence would be the same as that for negligence or for health and safety breaches. That would not reflect the gravity of conduct that must attach to an offence as serious as manslaughter.

James Duddridge (Conservative, Rochford and Southend East)

As I understand it, if the Bill were passed in the state in which it was originally drafted, we would expect about 10 to 15 prosecutions per year. If the amendment were made, how many prosecutions would the Minister expect—what would the increase be?

Gerry Sutcliffe (Labour, Bradford South)

I cannot give the hon. Gentleman the exact figures—we can send those to him—but he is essentially correct: if the amendment were passed, that is what would happen. It would affect the severity of the test for gross breach that we are trying to apply.

The second question is: what is the organisation’s conduct being measured against? The requirement is that the conduct fell below what could be reasonably be expected of the organisation. That links the offence to objective standards, such as those set by safety regulators such as the Health and Safety Executive or the Food Standards Agency. It is reinforced through clause 9 of the Bill, which sets out factors for the jury to consider when assessing an organisation’s conduct. The hon. Member for Kingston and Surbiton was right to raise the case of Adomako, which reinforces our view on the test for gross breach, which is interpreted as conduct falling far below a required standard.

I hope that the hon. Gentleman will withdraw his amendment. We understand the nature of what was behind it and, as the hon. Member for Rugby and Kenilworth said, we will debate and further test our respective views on the other issues.

Roger Gale (Conservative, North Thanet)

Order. For the benefit of less experienced members, I remind the Committee that when the Chairman calls the mover of the motion to wind up the debate, no further substantive speeches may be made, though of course it is always possible to seek to make an intervention.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I am glad that my probing amendment has been received in the spirit in which it was proposed. The debate has been useful in giving the Minister a chance to put the Government’s thinking on record. He was not particularly clear about why the Government have chosen the test set out in the Bill rather than the Adomako test, but I shall not press that matter. I beg to ask leave to withdraw the amendment.

Ann McKechin (Labour, Glasgow North)

I beg to move amendment No. 31, in page 2, line 4, after ‘to’, insert ‘(a)’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following amendments: No. 100, in page 2, line 4, leave out ‘a fine’ and insert ‘one of the following penalties:

(a) a fine;

(b) a corporate community service order; or

(c) any sanction set out in an order laid by the Secretary of State, subject to the affirmative resolution procedure.’.

No. 32, in page 2, line 4, at end insert—

‘(b) an admonition; or

(c) a compensation order.’.

No. 33, in page 2, line 6, at end insert—

‘(7) Any penalty imposed under subsection (5) shall be notified by the court to the Registrar of Companies and the Registrar of Companies in Scotland.’.

Ann McKechin (Labour, Glasgow North)

Good morning, Mr. Gale. Three of the amendments in this group are in my name andthe other is in the name of the hon. Member for Kingston and Surbiton. They are intended to testthe Government on the range of punishments for the offence, which is clearly intended to be seen by the public as having a particular degree of gravity.

The report of the Joint Committee report stated, and I agree, that there should be a range of punishments to allow the widest consideration to be given to appropriate punishment of the offence in individual circumstances. Amendment No. 32 refers to compensation orders, which were the subject of a specific recommendation by the Joint Committee. There was some argument about the point, but in general the feeling was that compensation orders, or the possibility of making them, were appropriate. An example provided to the Joint Committee was that of people over the age of 18 who do not have dependants, whose deaths were said to be cheap. That is a glaring flaw in the system.

A compensation order is appropriate in cases of particular severity, in which there has been drastic loss to victims and their families. It is appropriate also that, because the offence will be rare—the Government have estimated that the number of prosecutions will be fewer than 10—a specific entry be made in the register of companies. That entry should be public and open to anyone intending to invest in or deal with the company, so that such people are aware of the company’s history and can check whether the company is a proper one with which they wish to have a relationship.

The amendments are testing amendments, but I hope that when the Minister responds he will say whetherthe Government have further considered the recommendations of the Joint Committee report, and whether they are prepared to consider a wider range of penalties, so that the courts can fulfil their role and penalise appropriately.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I welcome the amendments proposedby the hon. Member for Glasgow, North (Ann McKechin), Together with amendment No. 100, which stands in my name and that of my hon. Friend the Member for East Dunbartonshire (Jo Swinson), they give the Minister a chance to explain the thinking not just on the sanctions in the clause, but on development of those sanctions. On Second Reading, the Minister indicated that when Professor Macrory has finished his review of directors’ duties, and how they apply to the wider aspects of corporate legislation, the Government may wish to return to the matter, so it is particularly germane to have this debate now.

Amendment No. 100 offers a method by which the Government could, through the affirmative procedure, create another sanction through secondary legislation without waiting for space in the busy parliamentary timetable. Hon. Members might feel, quite rightly, that that is not the appropriate way to proceed, because adding sanctions needs primary legislation. My view is not hard and fast, but I wanted to give the Minister a chance to explain how the Government intend to proceed, particularly once the professor has made his recommendations and the Government have had a chance to consider them. Does the Minister intend to ask the Sentencing Guidelines Council to discuss the type and size of fines as well as any alternative penalties?

The amendments tabled by the hon. Member for Glasgow, North have a lot to commend them. We look forward to the Minister’s response to them, because a compensation order has a degree of attraction. In amendment No. 100, the Liberal Democrats suggest a corporate community service order to tease out the type of innovation that the Government are looking for. We have not spelled out in the amendment exactly what a corporate community service order might be, and I am sure that we could have some fun thinking about it, but hon. Members will understand the thinking behind the amendment. We need to consider the matter afresh in light of the innovations respecting sanctions that we have seen in other aspects of the law. I hope that Professor Macrory’s review will be wide ranging and innovative, and that the Government will seriously consider such new ways of imposing sanctions.

James Brokenshire (Conservative, Hornchurch)

This is a helpful debate about the sanctions and powers available in relation to the Bill, although the comments of the hon. Member for Glasgow, North and the hon. Member for Kingston and Surbiton demonstrate that perhaps it should take place in the context of a more wide-ranging review of the approach to using criminal sanctions to deal with corporations. It is a welcome opportunity to raise the issue.

The concept of restitution is interesting, given that one of the reasons why we are promoting the Bill is to give some sense of justice to families who have suffered the loss of a loved one. Not only do they want justice and to see someone held accountable and responsible for the actions that led to the death of their loved one, but they want a sense that things have been put right. A fine certainly provides a punishment. If set at the right levels, we hope that it would suitably penalise the company concerned and bring an element of retribution into the punishment, as well as ensure that conduct and behaviour change so that such terrible accidents and events do not occur in future.

How can we make a company make amends—restitution—for the harm that it has caused? I have a great deal of sympathy with the approach that incorporates restitution. The reason why the matter should be part of a wide-ranging review is the difficulty of doing so in practice. Ultimately, for a corporation, one is not saying that somebody will personally and individually carry out the actions; the corporate entity is found guilty and it is therefore the corporate entity that must make amends. That is why issues of the practicalities make it slightly more difficult.

Ian Stewart (Labour, Eccles)

I welcome the hon. Gentleman to his position on the Opposition Front Bench. He speaks of the complex distinctions to be drawn between the individual and the corporate body, but does he not accept that an individual can be responsible on behalf of the corporate body—for instance, on matters of finance or the environment? Is there not a problem for all who are trying to resolve the difficulty—it is almost a conundrum—of whether a named individual can represent the corporate body?

James Brokenshire (Conservative, Hornchurch)

The hon. Gentleman will appreciate that that is the reason why the Bill was introduced, and it was part and parcel of our debates last week about the nexus of the acts of individuals or groups of individuals and the acts of the corporate body. We are talking about different legal personalities; the corporate body is a separate legal person, even though its actions are directed by its board of management, other employees and senior officers. The hon. Gentleman will know that a charge of manslaughter could still lie against an individual as a consequence of his default in certain circumstances if it can be shown that he had acted in a highly inappropriate way. That is the present law, and it should certainly be respected.

It is an interesting concept—I hope we will have the opportunity to debate it in greater detail—that a corporate body could provide restitution or to put things right. The amendments would advance that debate and allow us to consider other ways—a community award, a sum of money or some other activity—of making amends or seeking to make particular changes. That is why I welcome the debate, albeit that the subject probably needs to be fleshed out and considered in the wider context rather than concentrating on the one specific offence. It could have wider application, which is why a more wide-ranging review would be beneficial; it could come up with suitable approaches to deal with such issues.

The hon. Member for Kingston and Surbiton suggests specifying other punishments in the new subsection (5)(c) proposed in amendment No. 100, but it would not be appropriate to do that through a statutory instrument. It is better done through primary legislation. I note that the hon. Gentleman said that he was not wedded to the approach suggested in the amendment, but that he wished to advance the debate to encompass creating flexibility and taking a different look at the way in which corporate bodies could be held accountable for their actions.

It is difficult at this stage to consider the matter in isolation, saying that we should take the approach suggested by the amendments. However, it is worth considering the wider aspects of the liability of corporate bodies. We should explore whether a more direct approach could be taken to providing restitution for individuals and families who have suffered as a consequence of the acts of corporate bodies—that not only should corporations be fined but that some more general restitution should apply. However, that is a wider debate than the one before us today.

Michael Fabricant (Conservative, Lichfield)

Does my hon. Friend consider that there should be an opportunity to take civil action against the body corporate? If such an opportunity is not readily available, might one be made available by amending the Bill?

James Brokenshire (Conservative, Hornchurch)

My hon. Friend raises an interesting point about the civil remedies that might apply to a particular action or event. If somebody is killed as a consequence of a company’s default, not only could action be taken under criminal law, as we are debating this morning, but a more general civil action make be taken and a claim of negligence be laid against an individual using the civil process and leading to damages or some other award.

Clearly, if a corporation has been found guilty of a criminal offence, the higher standard and burden of proof will apply—beyond all reasonable doubt, or whatever the modern phraseology is. That test is a higher standard to meet than the balance of probabilities test that would apply in a civil action. Therefore, one would suggest—this is usually how it happens in cases where there is a criminal and a civil line of approach—that the criminal action should take place first. If the court finds against the defendant, a civil action will usually follow. It will hopefully be easier then for the individual to prove their case in the civil action.

Roger Gale (Conservative, North Thanet)

Order. Before we go too far down this road, it is an interesting discussion, but it is slightly outside the scope of the Bill.

James Brokenshire (Conservative, Hornchurch)

I will be guided by your chairmanship, Mr. Gale. I respect your point and the latitude that you have kindly granted us thus far in this debate. I draw my comments on that point to a close.

The debate has been interesting. I am sure that hon. Members will be interested to hear what the Minister will say about any further review undertaken by the Government to ensure that corporations are seen to be held to account appropriately.

Ian Stewart (Labour, Eccles)

Before the hon. Gentleman sits down, will he answer a question? Some of us in the Government have raised the issue of corporate probation and have alluded to the Canadian experience in connection with the problem that we addressed earlier of whether an individual can be identified in a corporate case. Has he looked at that experience, and has he anything to tell the Committee about it?

James Brokenshire (Conservative, Hornchurch)

I am grateful to the hon. Gentleman for his intervention in relation to other experiences. The corporate probation issue is interesting. I must confess to the Committee that I have not examined it in detail.

We need to examine approaches taken elsewhere to see what works. Ultimately, we want something enforceable and effective. When I look at sanctions such as the community punishment or service awards mentioned in the amendment, I question whether they will actually operate in practice. How would we ensure that they were complied with? Who would ensure it? We would be dealing with a corporate body rather than an individual, which would make it much less easy to identify whether somebody was in default and whether further action needed to be taken against them for that failure.

We must consider best practice to see what would be effective in providing a sense of justice and retribution as well as a sense of restitution, so that we get a rounded judgment. A fine is a particular way of doing that. It is a penalty against the company and might cause the company and its shareholders pain in the sense of financial loss, but that pales into insignificance next to the emotional loss suffered by the individuals and families who have lost a loved one in terrible circumstances.

It is quite helpful to have had this debate, although the matter is much more wide-ranging. It touches on so many issues. Should we allow registration of criminal judgments against companies at Companies House, as the hon. Member for Glasgow, North suggested, so that we can see the history of a company and its standards? They are interesting issues, but they must be viewed in a joined-up way. What should apply for less serious offences and what should apply for more serious ones? Should there be distinctions between the two? That debate is needed in its broader perspective and then, perhaps, we can return to how the specific punishments would apply in the context of individual criminal offences and what would apply in this case, compared with any other cases.

Tony Lloyd (Labour, Manchester Central)

I should like to make a few brief remarks in support of my hon. Friend the Member for Glasgow, North—and, in general terms, of the hon. Member for Kingston and Surbiton—who has sought to open up the wider debate about what are the fit and proper mechanisms to change the safety culture, particularly in respect of the most serious events leading to the deaths of employees or members of the public.

This is an important debate. It is interesting that no hon. Member who has spoken so far has been opposed to the overall thrust of the measure. I have a slight problem with the last point that the hon. Member for Hornchurch made about looking at the issue in the round. Of course, he is right; we do need to see things in the round, but doing so is a recipe for having years going by while learned people in the legal profession deliberate.

Gerry Sutcliffe (Labour, Bradford South)

Does not that make the point about why it is important to have a corporate manslaughter Bill, rather than amend the Health and Safety at Work, etc. Act 1974? This is why the Bill is necessary.

Tony Lloyd (Labour, Manchester Central)

My hon. Friend the Minister does the job he has to do; but he is right. I know that he will not agree to the amendments, which take a slightly wider view, and nor would I, were I he.

The hon. Member for Hornchurch says that it would not be acceptable for us to create sanctions by the affirmative resolution procedure. It would be frightening to leave in the hands of the Secretary of State the power to create new penalties, the bases of which have not even been discussed in this Committee in general terms, never mind specifically.

I accept that the amendments need much more consideration, but the overall basis of the debate is important. As hon. Members have already said, if we are considering how to change cultures, it is important that we are aware of a consistent failing in our criminal justice system in respect of the recognition of the victims’ needs. Obviously, in this case the victims are the deceased, but the families of the deceased are often victims too. Most Members of Parliament have met people who have lost their loved ones in such tragic circumstances. People often tell me that they do not want financial compensation. That may sometimes be appropriate, but it is not always what motivates people. The families of those who have been killed in such circumstances are motivated by what they see as the total failure of the criminal justice system to recognise that something terrible has happened and that there was a responsibility on individuals or corporate bodies. The system seems to allow things to drift on for years. In that context, it is important that we consider a range of options that can bring the law to bear on those who allow such tragic circumstances to take place.

Like my hon. Friend the Member for Eccles (Ian Stewart), I shall continue to advocate the need for individual responsibility and therefore for penalties against individuals. However, as the hon. Member for Hornchurch said, there is a strong analogy in regarding the compensation process as something that can be built into the criminal justice system, rather than being part of a separate process between the criminal and the civil law. I am not aware, because I am not a lawyer—hon. Members from Opposition parties have far more legal background than I do on which to base comment—whether this situation exists anywhere else in the law at the moment. But I cannot see, as a point of principle, why we would want to turn against that. This harks back to an old principle in English law and law still operating in different parts of the world—the rather difficultly named “blood money”—whereby compensation can be a way of expunging guilt. That may be appropriate in some cases. I want the full weight of the law to bear down on a guilty company. However, one of the problems that I have with a system consisting only of fines is that, if a company is in a parlous economic position, no wider social purpose is served by inflicting a large fine on that company if the fine puts in jeopardy the livelihoods of people who work for it—people who in some communities may include family members of those who have lost their lives.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I rise to deal with the hon. Gentleman’s point on whether this type of provision is available elsewhere. It is. Under the criminal law, courts are invariably invited to consider a compensation order alongside other penalties, though on the facts of individual cases that is rarely relevant because defendants usually cannot make compensation payments. That is not the case here and I agree with what the hon. Gentleman said about the necessity of compensation: it would be appropriate in the case of corporate institutions.

Tony Lloyd (Labour, Manchester Central)

It seems to me that there is a widespread recognition that that could be a sensible way forward. My hon. Friend the Member for Eccles invited the hon. Member for Hornchurch to consider probation orders. Those orders are a little different from admonition orders—I understand from my hon. Friend the Member for Glasgow, North that admonition orders would impact on the corporate body specifically. As an extension, I wondered whether corporate tagging and such like would be possible, but maybe that is a flight of fancy. Admonition orders could have a real impact on corporate behaviour, in the sense that if a large national company had been the subject of corporate manslaughter legislation, that would be well known. We saw that with Transco, which still holds the record for a fine on a corporate body in this country for breach of health and safety laws. For large companies it would be obvious that they had behaved in such a way, and investors and others wanting to deal with the company would know it. For medium-sized and small companies, having something on the record could well serve as a disincentive, such that it could change corporate behaviour.

Jim McGovern (Labour, Dundee West)

Last week, I quickly realised that I was in a room full of lawyers, so if I get things wrong I am sure that I will be corrected. My understanding of an admonition is that it is a legal term for a slap on the wrist. Does my hon. Friend think that that is appropriate in the case of loss of life?

Tony Lloyd (Labour, Manchester Central)

I am not sure whether, as my hon. Friend the Member for Eccles muttered, my hon. Friend the Member for Dundee, West (Mr. McGovern) said “lawyers” or “liars.” That would be a matter for you to determine, Mr. Gale, and I shall not pursue it any further. My hon. Friend’s point is important, but I can think of circumstances in which different levels of penalty may be appropriate. I make no bones about my belief that in the most serious cases of corporate manslaughter individuals should bear responsibility, and if responsibility is clear and proven, should pay the same sort of penalty as would be expected in the case of serious motoring offences, such as reckless driving. Individual directors or employees would end up in prison, and that would be absolutely right—it would recognise the serious nature of recklessly causing death. An admonition order, or other penalties, may be appropriate as something that would stay on the record and would indicate that a company had behaved in a certain way, so that people dealing with the company in future would be aware that the company was a reckless one. Long after the headlines had disappeared from the local newspapers, that would still be there on the record.

Ian Stewart (Labour, Eccles)

I was pleased to hear my hon. Friend’s explanation and expansion of what we are attempting to do in Committee. We are addressing a range of sanctions to fit the key issue which, I am sure my hon. Friend the Member for Manchester, Central (Tony Lloyd) will agree, is for families to see justice done. The hon. Member for Hornchurch has mentioned that on several occasions. I therefore make no apology for pressing the issue to the boundaries, so that we can examine the range of available sanctions, including the potential for identifying a named person who represents the corporate body. It is important that we do not leave out what could be considered by families to be justice.

Tony Lloyd (Labour, Manchester Central)

My hon. Friend knows well that I sympathise with the case that he is putting forward. I therefore refer to the concept of probation orders. They are similar to admonition orders. Used in the Canadian context, they impact on individual directors. In some circumstances, I would regard a probation order as being a ridiculously trivial consequence for a director, but there are times when it would plug a gap in the existing levels and range of penalties. I suggest admonition orders for corporate bodies, and probation orders for individuals and named directors. A director against whom a probation order was on the record would find it difficult to move from one company to another. Few companies would want a person with a probation record to chair their board.

Ann McKechin (Labour, Glasgow North)

Does my hon. Friend agree that a probation order would be appropriate when, for example, a company had little money with which to pay a fine, as a result of which the fine imposed by a court would be severely limited? Yet the court would want to ensure that the future practices of the company, particularly if it became more profitable, still did not escape an appropriate form of punishment.

Tony Lloyd (Labour, Manchester Central)

My hon. Friend is right. In specific circumstances, individual servants of the company could be guilty of manslaughter even under existing law, whether or not we are discussing corporate manslaughter and individual liability. However, it could still be considered that the company and individual directors had general responsibility—not enough for individual liability against those particular people, but enough to carry the test of corporate manslaughter. As my hon. Friend said, in some circumstances it would be appropriate for admonition and probation to be kept on the record. For the company to expunge the admonition or probation, it would be important for it to demonstrate that it had put its house properly in order and had changed its ways and corporate culture. That would serve as part of the armoury in driving through the change in health and safety culture that we want to achieve under the Bill.

I do not seriously expect my hon. Friend the Minister to accept the amendments today. However, I hope that he will not pour scorn on the concept and accept that there is merit in further examination of such proposals. As the hon. Member for Rugby and Kenilworth said, perhaps we can consider the non-used compensation powers under existing criminal law. He educates me. As I confessed last week, I come here for my legal education. Courts could decide whether to use that concept, admonition or probation in individual cases, particularly as a way in which to change culture and behaviour. Furthermore, an important part of what we want to achieve is a system that gives comfort to the bereaved and ensures them that they are being taken seriously by our judicial process.

James Duddridge (Conservative, Rochford and Southend East)

This has been a useful discussion. I am sure that the Minister will want to reflect on what has been said and bring forward Government amendments. I was particularly impressed with the elegant nature of amendment No. 31—with its simplicity but wide-ranging effect—from the hon. Member for Glasgow, North. The hon. Member for Manchester, Central said that it might be withdrawn or that the Minister might not accept it if it were pressed to a Division. If it were pressed, I would be minded to vote for it on the basis that it would be a clear indication from this Committee that it was serious about asking the Minister to fill in the detail.

If the Minister were minded to consider amendment No.100, I would suggest a few amendments. It refers to

“one of the following penalties.”

There is potential merit in referring to “one or more” of those penalties—that is to say, a fine in combination with another element.

I was also concerned about corporate community service orders. I think I understand what that means—in terms of restorative justice—and am supportive of it. However, if the Minister were to add more detail, we would have a closer definition of exactly what that entails.

In relation to paragraph (c), there might be benefit in putting more details under the potential sanctions. One of the greatest sanctions on a corporate is to damage its brand, perhaps more so than a financial penalty. For example, if a soft drinks company were prosecuted and forced, for one year, to print on every soft drink can that was produced that it had been convicted, that would be both a strong sanction and a preventive measure.

I did not fully understand why the hon. Memberfor Glasgow, North had not combined amendments Nos. 31 and 32. However, that might be my inexperience of this place or an indication that the hon. Lady was hoping that if both amendments were not passed, amendment No. 31 might be.

Gerry Sutcliffe (Labour, Bradford South)

I add my congratulations to hon. Members for their contribution to what are, as has been said, probing amendments that test the Government’s view on sanctions. I am happy to consider many of the points that hon. Members have made this morning in the spirit of what we are trying to achieve, namely to change the corporate culture.

As this group of amendments suggests, it is vital that the new offences of corporate manslaughter and corporate homicide are accompanied by appropriate sanctions. We cannot imprison a company, so it is vital that the penalties for the new offence properly punish the convicted organisation and sufficiently deter them from future offending.

It is even more important, as my hon. Friend the Member for Eccles says, that the families involved see that justice is being done. My hon. Friends the Members for Manchester, Central and for Eccles are consistent in their views about the issues affecting individuals and I am sure that we will return to those as we go through the other clauses.

As these amendments make clear, there is some concern that fines are not enough. However, the courts are showing increasing willingness to hand down severe penalties in serious cases of health and safety breaches. Last year saw the highest ever fines against a railway company in relation to Hatfield when Network Rail was fined £3.5 million and Balfour Beatty, in another area of the industry, was fined £7.5 million, and, as has been said, Transco was fined £15 million for health and safety breaches.

Fines for the new offence will vary enormously according to the circumstances—they will need to reflect the seriousness of the incident and the size of the company concerned. However, we expect the courts to take the new offence very seriously. The hon. Member for Kingston and Surbiton is right that the Sentencing Guidelines Council will be issuing guidelines for the new offence.

However, the fine is not the only sanction that will arise out of the new offence; it will be coupled with the censure of a very serious criminal conviction. The Bill’s purpose is to make it easier to prosecute complex organisations when their gross negligence causes someone to die, so the seriousness of the conviction will mirror the gravity of the offence, which has not been the case for complex organisations prosecuted under current law. That is the driving force behind the Bill, and it is why we differ from the Opposition on amending the 1974 Act.

Nevertheless, we recognise the concern that financial penalties alone might not always be enough to change undesirable business behaviour. For that reason, the Government have commissioned a comprehensive review, led by Professor Richard Macrory, of existing penalty systems for corporate offences. The review team is consulting on a range of proposals for more innovative penalties for regulatory offences. It is also considering the use of a wider range of sanctions in the criminal courts.

Amendment No. 100 proposes corporate community service orders, which I was interested to hear about. A similar approach, in the form of corporate rehabilitation orders, is under consideration in the Macrory review. The sort of order that Professor Macrory has been considering would enable the court to require an organisation to undertake specific activities. A company might be obliged to provide extra personnel training in health and safety matters or to undertake some reparative activity within the community. In the consultation paper he published in May, he suggested that compliance with the order would be monitored and the company would be returned to court if it failed to observe the terms of the order.

The alternative sanctions under review offer some interesting avenues for the future, and the Government are looking forward to the publication of Professor Macrory’s findings this autumn, but further work and consultation will be needed on the practicalities of any recommendations made by the review. It is not simply a case of granting courts new powers. For example, detailed work would be needed to give courts frameworks for setting rehabilitation orders and to decide how compliance would be monitored. Clearly, the issues go wider than corporate manslaughter. The Government will consider sentencing for corporate offences in the light of the Macrory review findings.

Jeremy Wright (Conservative, Rugby and Kenilworth)

The Minister has rightly identified the need to make a full assessment of how the orders would be enforced, but would he also say that it is important to look at the cost implications of monitoring and enforcing the orders? In criminal law, we have seen the extra pressure placed on the probation service when extra orders are introduced. It would be unfortunate if such cost implications were not considered in this context also.

Gerry Sutcliffe (Labour, Bradford South)

I am thankful for the hon. Gentleman’s intervention. That is the very nature of what needs to be considered. It will come as no surprise to him that the Home Secretary is keen to ensure that we consider the cost aspects of implementation. It is a fair point across the criminal justice system. He makes it well, and I thank him for it.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

Would not one solution be to ensure that any fine that accompanied one of the new, innovative orders was sufficient to meet the Government’s monitoring costs?

Gerry Sutcliffe (Labour, Bradford South)

That is one possible solution. Clearly, we would have to consider the implications. I think that that is why the hon. Member for Rugby and Kenilworth said that we need to look right across the piece to ensure that we are not creating another problem by solving one problem in a particular way.

The other proposal put forward in amendmentNo. 100—that the Bill should provide for sanctions to be identified and introduced by affirmative order—is an interesting one. However, I do not think that it is wise to delegate such a wide power in that way. As I have said, the Government will consider carefully how to take forward the proposals made in the Macrory review. Any changes to sanctions for corporate manslaughter will be made in that wider context. It is not necessary to provide for it in the Bill.

I turn to admonitions. As my hon. Friend the Member for Glasgow, North said, they are dispositions in Scotland only. It is difficult to envisage circumstances in which the conduct of an organisation would be grave enough to merit a conviction for homicide but the appropriate sanction would effectively be a formal reprimand. Nevertheless, if there are such circumstances, it is already possible under section 246 of the Criminal Procedure (Scotland)Act 1995 for a court to dismiss with an admonition any person convicted by the court of any offence, and that would include organisations convicted of the new offence of corporate homicide. Clause 1(5) will not prevent use of the disposal, and there is therefore no need to make special provision in the Bill.

I agree that the courts should be able to make compensation orders in appropriate circumstances. I am satisfied that the courts in England and Wales already have that power. Under the Powers of Criminal Courts (Sentencing) Act 2000, the criminal courts can award compensation orders against a convicted defendant for any personal injury, loss or damage resulting from an offence. It applies to corporate defendants in the same way as it does to individuals. There is therefore no need to make specific provision for that in the Bill.

However, we do not expect that compensation orders will often be made in corporate manslaughter cases. The orders are designed for straightforward cases in which the amount of compensation can be readily and easily ascertained. Where someone loses their life, assessing the appropriate level for the compensation order would be relatively complicated. In practice, it might be more appropriate for compensation to be considered in the civil courts, which have the expertise to assess the extent of damages.

I am aware that in Scotland the position is different. Under section 249(4) of the Criminal Procedure (Scotland) Act 1995,

“No compensation order shall be made in respect of...loss suffered in consequence of the death of any person”.

However, I understand that the Scottish Executive are currently considering a report from the Sentencing Commission for Scotland on financial penalties, including compensation orders. As part of thatwork, the Executive will be looking at the effect of section 249. I will draw the comments made during this debate to the attention of the Minister for Justice.

The issue of corporate probation has been raised, particularly the position in Canada. I am very interested in those proposals, and will be considering during debate what lessons can be learned from them and what can be done. I will consider the innovative sanctions to which hon. Members have referred.

Ian Stewart (Labour, Eccles)

It is good to hear that the Minister is prepared to consider the concept of corporate probation. I forewarn him that my hon. Friends and I will be tabling an amendment to assist him in his deliberations.

Gerry Sutcliffe (Labour, Bradford South)

I am ever grateful for my hon. Friend’s warnings about what he proposes to do. I will consider it with a great deal of interest.

Amendment No. 33, tabled by my hon. Friend the Member for Glasgow, North, dealt with what could be done to affect a company’s brand, including registering at Companies House. I do not think that the idea is quite right as it is set out in the amendment, but there are possibilities to consider, and I will be happy to do so during debate.

This has been a useful debate that has shown the genuine attempt by all parties to come up with solutions. More work needs to be done. In that spirit, I urge hon. Members not to press their probing amendments.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I apologise to the Committee for rising again, but there is a substantive point that I failed to mention in my earlier remarks—how sanctions would apply to public sector organisations. It is important that we discuss it. Professor Macrory’s view, as I understand it, relates primarily to private sector corporations. The Bill is intended, as I believe we will discuss at length, to apply to bodies in the public sector. That is a concern, because fines on a public sector body, if that body provides an important public service, could hit the wider community and be almost a community punishment for something that the public sector managerial team got wrong. The Treasury might decide that it did not want a cutback in that public service and make good the money taken by the fine. Hon. Members will see the conundrum in simply applying fines to public sector bodies.

I hope that the Minister will explain the Government’s thinking on the matter, because innovation is clearly needed. Obviously, there are other forms of accountability for public sector bodies. We shall have such debates when we discuss Crown immunity and the various exemptions under the Bill, but the Minister should not allow those types of accountability system to be seen as a sanction in the context of the Bill. There needs to be innovation in respect of sanctions and public sector managers. Clearly, people’s reputations and careers can sometimes be hit, but the mistakes that I have seen made by public sector managers do not seem to have affected their careers. Indeed, they have often been promoted to other bodies in other parts of the country. Public sector bodies can sometimes get away with it and, if the whole purpose behind the Bill is to make sure that people do not get away it, that the victims of gross negligence and their families receive retribution and that there is a feeling that justice has been done, we need to be innovative in such areas, too.

Tony Lloyd (Labour, Manchester Central)

In general, I support what the hon. Gentleman is saying, but he needs to be careful when suggesting that the highly insulated public sector is radically different from large corporate bodies, for example. Frankly, the idea that shareholder power impinges on the decisions of the most senior captains of industry is a myth. The degree of insulation in large private companies is equivalent to that in public sector companies. He should not push the public sector-private sector difference too far. That is not the position. The difference concerns those who need other spurs to make sure that their behaviour conforms to what is set out in the Bill.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I certainly did not want to give that impression, so I am glad that the hon. Gentleman has enabled me to put that on the record.

The fines on a corporate cannot easily be passed on to the consumers, unless they have monopolistic power. It is hoped that, in a competitive market, fines will affect the profits of the company and, thus, hit the shareholders in some way. As the hon. Gentleman implies, whether or not the fines hit the directors would depend on whether the shareholders wreak their retribution for lower profits as a result of the fine. My point in wanting to extend the debate a little longer than I had intended originally is to show that that type of mechanism does not work as well in the public sector. I am not suggesting that the public sector is insulated because, as the Minister and councillors will be aware, when a public sector body has behaved badly there are often political results and great embarrassment, and rightly so. I am still not convinced, however, given this debate and what the Bill is trying to do, whether that is sufficient. I should be interested to know whether there is some thinking in the Minister’s Department about how we can be innovative with respect to public sector bodies.

In no way did I wish under amendment No. 100 to give the Home Secretary the power to produce sanctions under such a procedure. I wanted to tease out from the Minister—I am not sure whether I did—what sort of timetable he proposes to give to the House. Yes, we have the view of Professor Macrory and that of the Sentencing Guidelines Council. The hon. Gentleman was right to say that there will need to be a serious reflection on the practical implications of new types of offences, but given how close that is to what we are debating now, it is sensible that the Committee hears what plans the Government have in mind.

Gerry Sutcliffe (Labour, Bradford South)

As for how we would approach the matter, we could do so through secondary legislation and the affirmative resolution procedure at the appropriate time when we have looked at the various issues that I outlined earlier in respect of the Macrory proposals. Such matters do not have to be outlined under the Bill. As the hon. Gentleman said, we would not want the powers to be so wide-ranging. When we reach that position, we shall hold the appropriate discussions.

On the public bodies issue, the Bill removes Crown immunity. We shall debate the extent and the appropriateness of that later, but I am sure that there will be an informed and detailed discussion on the way in which the Bill deals with public bodies. Fines are already available in relation to public bodies, in so far as many local authorities face fines for corporate offences, and I am not against innovative ways of dealing with them, because it is important that Crown bodies do not escape sanction for what is a serious offence. There is the issue of recycling of funding if public bodies are fined, and I shall be happy to examine matters in greater detail during the passage of the Bill, and to discuss matters with Committee members. With that in mind, I would ask that the amendment be withdrawn.

Ann McKechin (Labour, Glasgow North)

We have had an interesting debate, and it has been good to see some degree of cross-party consensus on the need to consider a wide range of penalties, so that the courts are not limited in their ability to impose appropriate sanctions in each case. I welcome the Minister’s comments about the possibility of a corporate rehabilitation order, which has been mentioned by the hon. Member for Hornchurch. To some people it may sound similar to the principle of corporate probation, but it is worth considering, though it needs to be properly tested, and examples and enforcement in other jurisdictions should be considered. Nevertheless, I believe that an essential part of the range of penalties that needs to be on offer is that the courts be able to retain some sort of control over companies for a period, to ensure that practices change. That should happen either now, in the Bill, or, in light of the Minister’s comments, after the Macrory review results are known.

On amendment No. 32, I accept the Minister’s comments on admonition. Realistically, admonition would happen only if the victim were a direct relative of a company’s directors, and if the company had very few assets. I appreciate the Minister’s comments that the power already exists, however.

I accept the Minister’s comments about the law in England on compensation orders, and that that penalty is already available to the courts, but that is not the case in Scotland. Regrettably, the level of damages in Scottish civil cases has historically always been lower than the English average. So the issue of compensation orders is important—particularly, as I mentioned, in the case of single people with no dependants, for whom the level of damages that can be expected in a civil court may be very small. If a company has been so grossly negligent as to deserve a conviction for corporate homicide, it is appropriate that the penalty constituted by a compensation order is available. Will either the Minister, or the Advocate General, Lord Davidson, make a direct submission to the Sentencing Commission for Scotland on that point, and request that the commission consider the matter when it makes its final report? Obviously it will have to wait until enactment, but it is important to flag it up now, because consideration of the Bill for Scotland has happened very quickly and it may well be that the members of the Sentencing Commission are not fully aware of the implications of the Bill.

On amendment No. 33, I am pleased that the Minister indicated he would make some further comments later. Putting notices in the register of companies is a very important sanction that would have a salutary business effect on some companies. As was mentioned by the hon. Member for Hornchurch, it may be appropriate not only for manslaughter and homicide but for other serious offences. In my own constituency, a company was convicted of selling weapons of torture, and I regard that as a serious offence that would be worthy of note in the register of companies.

I welcome the spirit in which the Minister has addressed Members’ concerns today. I certainly hope to see further progress as we go forward in the Bill, and I am sure that my hon. Friends will be raising the question of individual liability. That is an important matter which, as they say, has to be considered as a separate issue. I beg to ask leave to withdraw the amendment.

Roger Gale (Conservative, North Thanet)

With this it will be convenient totake the following: Amendment No. 75, in clause 24, page 13, line 2, leave out ‘Manslaughter’ and insert ‘Killing’.

New clause 2—Amendment of Health and Safety at Work etc. Act 1974—

‘(1) The Health and Safety at Work etc. Act 1974 (c.37) is amended as follows.

(2) After section 33 insert—

“33A Offences committed by corporate body etc.

(1) Any failure by—

(a) a corporate body,

(b) an unincorporated body,

(c) a department or other body listed in Schedule 1 to the Corporate Manslaughter and Corporate Homicide Act 2006 (c. ), or

(d) a police force,

to discharge a duty to which it is subject by virtue ofsections 2 and 3 of this Act whereby a person’s death is caused shall be an offence.

(2) The offence under this section is called—

(a) corporate killing, insofar as it is an offence under the law of England and Wales or Northern Ireland;

(b) corporate homicide, insofar as it is an offence under the law of Scotland.

(3) A body corporate or unincorporate that is guilty of corporate killing or corporate homicide is liable on conviction on indictment to a fine.

(4) The offence of corporate homicide is indictable only in the High Court of Justiciary.

(5) The offence of corporate killing is triable only on indictment.”.’.

Amendment No. 74, in title, line 2, leave out ‘manslaughter’ and insert ‘killing’.

James Brokenshire (Conservative, Hornchurch)

The new clause tests the approach being taken by the Government in relation to the Bill to establish whether it is the correct one and whether there may be more elegant and effective ways of addressing the issues before us. At the outset, my hon. Friend the Member for Beaconsfield said that he aimed to provide a simpler alternative, although he noted that he would not ruthlessly pursue that objective, and I will reflect my hon. Friend’s approach.

However, it is worth taking a step back and testing whether the line that we are taking is appropriate and whether there are other ways of addressing the concerns that we have debated. The Health and Safety at Work, etc. Act 1974—in particular sections 2 and 3—is the starting point for the new clause. It incorporates duties on employers to ensure that, so far as is reasonably practicable, the health, safety and welfare at work of all of their employees is protected and that they conduct their undertaking in such a way as to ensure that—so far is reasonably practicable—the persons not in their employment, who may be affected thereby are not exposed to risks to their health or safety.

Building upon those general duties—established under existing health and safety law—the new clause take this established law as the starting point, and applies it to a situation in which a specified organisation or body fails to discharge the general duty set out in sections 2 or 3, resulting in a person’s death which constitutes an offence. There is merit in examining this approach. We have seen from our debate thus far, the challenges and difficulties of seeking to frame the legislation within the concept of manslaughter, and it may be more effective—more elegant and easier—to create an aggravated offence under the existing Health and Safety at Work, etc. Act, which will reflect the gravity of the matters before us.

Tony Lloyd (Labour, Manchester Central)

Will the hon. Gentleman clarify what the impact of the new clause will be? As I read it, the new clause would do nothing more than the existing Health and Safety at Work, etc. Act, except to give the label of corporate manslaughter in England and corporate homicide in England, Scotland, Wales and Northern Ireland. Under the current law, any failure by any of the organisations as listed would already be a breach of the duties under the Health and Safety at Work, etc. Act. Although the label is different, the fact that on conviction or indictment the organisation is liable to a fine is equivalent to the existing legislation. I am not clear how that provision differs from current legislation. Perhaps the hon. Gentleman would clarify the way in which, apart from the labelling, it differs—I do not dispute that labelling can have some importance, but it is not a huge change.

James Brokenshire (Conservative, Hornchurch)

The hon. Gentleman makes an interesting point, but what are we changing by virtue of this corporate manslaughter Bill? We are effectively creating a new offence with a title of corporate homicide or corporate manslaughter. The penalty that is leviable in relation to a breach of the terms of the Bill would be a fine equivalent to provisions under the existing health and safety legislation. That is why, in my initial comments, I was talking about stepping back to consider the changes we are seeking and to find out whether there are more elegant ways in which to take it forward. I will listen to further comments and consider whether I can explain that thinking more fully.

Tony Lloyd (Labour, Manchester Central)

In essence, this is the nub of what we are trying to achieve. If the hon. Gentleman reflects on the previous debate on the needs of victims and, in a sense, the needs of society more generally, he will appreciate that there is something qualitatively different between causing serious injury, for example, and causing death. That is recognised in other areas of the criminal law. As with other aspects of criminal law, we now say in the Bill that creating a different offence—causing someone to die through recklessness—with the title of corporate manslaughter would mean having a different process for taking prosecutions forward. I do not mean that the evidence would be examined differently, but there would have to be separate tests to determine whether an offence constituted corporate manslaughter. I am not clear whether amending the 1974 Act would have the same impact as a social sanction.

James Brokenshire (Conservative, Hornchurch)

We are seeking to examine this provision in terms of the need for justice to be seen to be done. I have reflected on that in many contributions to the Committee thus far and I believe strongly that that needs to be addressed in relation to this matter. If someone dies as a consequence of some failure by a company or one of the specified bodies to which this legislation would apply, there should be suitable admonition and a recognition that we wish to punish that and treat it seriously.

It is not that the health and safety at work legislation is not serious, because breaches are serious, but people’s perceptions of it have not, for whatever reason, gained the level of standing that the criminal sanctions that we have been debating thus far have achieved. The fundamental purpose in creating the aggravated offence that we are talking about is to underline how seriously such breaches are taken by making them constitute a separate offence and to recognise the huge damage caused by a failure of the breach of duty undertaken by the company resulting in an individual’s death.

I am following a different line of thought on how to address the failure and give it suitable standing and status to ensure that people feel that justice has been achieved by virtue of the mechanism. The broader framework of the Bill underlies what we are trying to achieve. We are seeking to change the way in which corporate entities and organisations undertake their business and to prevent such breaches happening. Clearly, prevention is the most fundamental issue. However, if an event were to result in somebody’s death, there should be suitable punishment.

In many ways, the Health and Safety Executive, which monitors and prosecutes such offences, is the appropriate body to take such issues forward by putting the evidence together and ensuring convictions. We feel that in the context of trying to cure the evils before us and seeking to change the corporate environment as well as providing a sense of justice, an alternative mechanism could be to create the aggravated offence of corporate killing or corporate homicide within the Health and Safety at Work, etc. Act 1974. That would provide a clear and understandable framework.

We have debated the problems that might arise from mismatches between offences under the Health and Safety at Work, etc. Act and the Bill’s corporate manslaughter offences. It would provide an elegance and simplicity of approach, as well as certainty and the elevated nature of the offence before us, to specify the offence in the health and safety at work legislation. That would give it sufficient standing and status and ensure that companies appreciated and recognised their failure, that the community was seen to have received justice and that punishment at an appropriate level was properly maintained.

The Minister has given examples of fines that have been levied partly under existing health and safety at work legislation. Parallels can therefore be drawn. Our question is whether we are taking the right approach. Is there a more effective approach to achieving what we want from a change in legislation?

Jeremy Wright (Conservative, Rugby and Kenilworth)

Does my hon. Friend agree that there is another potential merit in taking this approach instead of the Government’s? In many cases, the duties to which the bodies described in new clause 2 are subject by virtue of sections 2 and 3 of the Health and Safety at Work, etc. Act are wider than the duties described in the Bill. We might in fact be able to encompass more examples of bad practice thanthe Bill.

James Brokenshire (Conservative, Hornchurch)

My hon. Friend makes a valid and effective point about the scope of the legislation. Sections 2 and 3 of the Health and Safety at Work, etc. Act frame quite broadly such duties regarding the safety and welfare of employees and state that persons not in employment should not be exposed to risks to their health and safety. These are known concepts that have been tested before the courts, and it is understood what they mean. They probably have broader application in the context of the Bill. It is interesting that the Bill seeks to draw parallels by saying that breaches of health and safety legislation will be relevant factors for the jury to consider.

The Bill accepts a link between breaches of duties established within the Health and Safety at Work, etc. Act and offences under the Bill. We seek to take that a step further, asking whether it is the right approach. If that approach were taken, would it be more effective and result in more successful prosecutions? Would it create that change in culture that we have discussed and all of us would like to achieve? In tabling the amendments, we are asking whether it is more effective.

James Duddridge (Conservative, Rochford and Southend East)

Does my hon. Friend agree that two additional benefits of new clause 2 might be that prosecutions would be brought faster and—speaking as a non-lawyer—that in the event of an accident, we would not be lining the legal profession’s pockets in quite the same way that we might if the two pieces of legislation ran parallel?

James Brokenshire (Conservative, Hornchurch)

Although I am a non-practising solicitor, I would be pleased to provide ways to cut lawyers out of the process or reduce the costs of ensuring speedy justice. I am no practitioner in the area of health and safety—although my hon. Friend the Member for Beaconsfield is—so it is difficult for me to form a judgment as to whether a case under health and safety legislation would be quicker than a criminal case. However, as we have heard this morning, the Bill as framed will cover only a limited number of cases—12 to 15 a year is the number being talked about. The proposed offence would cover more than that, and in so doing might create a greater sense of justice and corporate social responsibility, which we all hope can be achieved.

I would welcome some means of introducing clarity and simplicity in the law to achieve just outcomes at the end of the day. That is why we believe that the approach outlined in the Opposition’s amendments bears consideration, to see whether they can create that sense of justice and purpose that we all want.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

New clause 2 and amendments Nos. 74 and 75 are very welcome. The only surprise for me is that the issue was not raised in great detail on Second Reading, although to be fair to the hon. Member for Beaconsfield, he talked about an amendment to the Health and Safety at Work, etc. Act 1974, but did not relate it to the offence of corporate killing.

That is a significant development in thinking on the Conservative Front Bench. I understand from private discussions with the hon. Gentleman that the thinking goes along this line: the Government’s approach to how the offence would be committed is rather narrower than it would be if it were linked with health and safety, and would create other new tests, whereas health and safety legislation is clear to companies and, I hope, increasingly clear to public sector bodies. However, the hon. Gentleman was anticipating the Government’s concern about that, namely that the offence would not have the same effect on a company’s reputation and image, and would not send a clear message to the victims and the public that a serious offence had been committed.

As I understand it from the argument that the hon. Member for Hornchurch made, using the new term of corporate killing—an idea for which I have a great deal of sympathy—would enable a prosecution under the 1974 Act to carry a greater stigma and force, and separate the offence from a criminal offence under manslaughter legislation. That idea has some merits and the Government have a case to answer. My only surprise is that Conservative Front-Bench Members are going that far, because the proposal would extend the number of cases in which companies would be found guilty of a serious offence. I welcome that shift, because that thinking has not always held on the Conservative Front Bench.

Gerry Sutcliffe (Labour, Bradford South)

The hon. Gentleman raises an interesting point that I had not thought about. There has been a great deal of consultation on the Bill with a number of stakeholders, most notably the business community. To probe the Opposition, I wonder whether they have had a great deal of debate with the business community on their proposal.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I clearly tempted the Minister by introducing a political edge to this debate. Obviously I cannot answer for the hon. Member for Hornchurch and his colleagues, but I am sure that in winding up he will tell us about an extensive consultation, because I would expect that from him and his hon. Friends.

We return to the core part of what is proposed. I hope that the Minister will not dismiss it out of hand, because it is a serious point and is well made. It may be a Second Reading point, but it might have merit. I wonder whether the Minister will be able to tell us that a serious amount of it has been undertaken but that it has been rejected for good reason.

Although I do not completely commit myself or my colleagues to supporting it, it is an interesting development and I look forward to the Minister’s response.

Roger Gale (Conservative, North Thanet)

Order. Before we move on, the hon. Member for Kingston and Surbiton suggested that the hon. Member for Hornchurch who leads for the Opposition would be winding up. He will not be. We are debating the motion that clause 1 stand part of the Bill, and the Minister will wind up.

Tony Lloyd (Labour, Manchester Central)

I hope that my hon. Friend the Minister will not be tempted to accept new clause 2. I shall give my reasons.

At the outset, however, I must say that the hon. Member for Rugby and Kenilworth (Jeremy Wright) made an interesting intervention about the breadth of the legislation. My hon. Friend the Minister may want to reflect on that. Although the hon. Member for Hornchurch put it in a challenging way—that is a compliment, not criticism—the Committee seeks to improve our health and safety culture, and we want any new legislation to be commensurate with what we already have but to recognise its faults.

In light of that, I must point out that the fault in the past has not been an absence of legislation on corporate manslaughter; we have always been able to prosecute incorporated bodies, at least in principle. The problem is that existing legislation has been ineffective because the liability test proved to be too high in the most celebrated cases; that is what has led to the demand for legislative change. That is an important point. If we were starting now, I would accept that. If we were creating a new legal framework, people may well start off on a different basis: health and safety legislation might run from the beginning to the very end of the process; that might be one way of doing things, and I can understand the logic of such simplicity.

I know that the hon. Member for Beaconsfield has great expertise in such matters. At some point, Mr. Gale, you may wish to let the Committee know the correct pronunciation of the hon. Gentleman’s constituency—“Beconsfield” seems to be the southern pronunciation; any northerner would know automatically that is must be “Beeconsfield”. That, however, is an aside. I know that the hon. Gentleman believes strongly that it is one way of doing it, but I genuinely think that the signal that the House of Commons would give by saying that de facto we would abolish the existing law on manslaughter with respect to corporations and replace it with legislationsimply under the Health and Safety at Work, etc.Act 1974—which already exists because it is clear that under the existing legislation it would be possible to pursue prosecution against a corporate body, as, in a way, the new clause seeks to do—would be detrimental to those who campaigned for many years to change the law and, importantly, in terms of the broader signal that it gives society. In that context, I hope that the Minister will resist the concept that is being offered.

As I say, because the new clause was tabled in a spirit of helpfulness, I shall not make the charge, but it would have been made had it been moved in a more assertive manner as an attempt to downgrade the seriousness of the corporate manslaughter test by shuffling it away into the margins of existing legislation. That clearly is not the case, so I do not make that charge against the hon. Member for Hornchurch or against the hon. Member for Beaconsfield. Indeed, the hon. Gentleman was consistent on Second Reading that this was his preferred approach, so I am not sure why the hon. Member for Kingston and Surbiton said that such an approach had not been put forward on Second Reading. However, the approach matters enormously, not because the impact can be different outside of the point made by the hon. Member for Rugby and Kenilworth, nor because, in practice, the effect ought to be different in respect of who appears before the legal process, but because the signal that it would give would be difficult for many people to take on board.

My final point will probably not receive support from Opposition Members nor from my hon. Friend the Minister. The advantage for those of us who believe in a rather tougher framework is that, in the context of individual liability, the Bill is a more sensible vehicle for keeping together the concepts of individual liability and corporate liability under the laws of manslaughter. Subject to the serious point that has been raised about the breadth of the Health and Safety at Work, etc. Act and the importance of making sure that we do not unintentionally have narrower legislation, I hope that my hon. Friend the Minister will respond robustly to my argument and that he will stick with the legislation before us.

Gerry Sutcliffe (Labour, Bradford South)

Thank you, Mr. Gale, for your advice about this being a clause stand part debate. Clause 1 represents the very core of the Bill. It sets out the new offence of corporate manslaughter, which will be known as corporate homicide in Scotland. At its heart lies a new approach to corporate liability. The offence is not about changing the regulatory structure on businesses or other organisations, but imposing a specific sanction for gross mismanagement. We intend the benchmark for that to be the current framework for ensuring health and safety. Organisations can be reassured that, to avoid culpability, the action that they must take is to make proper efforts to comply with current health and safety standards.

We have debated at length the detail of clause 1, in particular the test for liability when we agreed amendments that, I hope, members of the Committee will accept are a significant improvement. We have also considered the relevant duty of care and the application of the offence to bodies corporate—we shall shortly come to the schedule in respect of Government Departments—and discussed the need to show that in breach gross failure occurred.

I shall mention briefly the other matters dealt with under clause 1. The penalty for the new offence will be an unlimited fine. Clause 10 makes provision for remedial orders in addition to that. Questions have been asked about the application of new forms of sentence for the new offence. As I said, we are not closed to that, but the matter of alternative sanctions for corporate offending is being addressed by Professor Macrory and needs to be taken forward in that wider context.

Clause 1 also makes provision for the new offence always to be tried before a jury. In England, Wales and Northern Ireland, that will be the Crown court. In Scotland, it will be the High Court of Justiciary. That reflects the serious nature of the new offence. I have dealt with the main elements of the new offence, some of which we shall return to in more detail when considering other clauses in the Bill.

I come now to the new clause to which the hon. Member for Hornchurch spoke so ably. I am delighted to see the hon. Member for Beaconsfield. I am sure that he will give us the correct pronunciation of his constituency when he has the opportunity. In 1982, the Prime Minister stood in a by-election there, and I can remember it being pronounced “Beconsfield”.

Dominic Grieve (Conservative, Beaconsfield)

I am delighted to enlighten the Minister. It is pronounced “Beconsfield”. It is “Becca’s field”, Becca being a Saxon individual who lived in the locality. Benjamin Disraeli called himself the Earl of “Beeconsfield”. Why he did that, no local person knows.

Gerry Sutcliffe (Labour, Bradford South)

I thank the hon. Gentleman for that clarification. I am sure that the two debates about pronunciation will continue.

The hon. Member for Hornchurch referred to the alternative proposal of amending the Health and Safety at Work, etc. Act 1974 to create a new offence of causing death through health and safety breaches. He mentioned that on Second Reading and made it clear that he was minded to consider the whole area of health and safety. He spoke about experiences in his professional life in relation to health and safety at work. He sees that implicitly as the approach to take, and I agree that it would mean less legislative change.

As the hon. Member for Kingston and Surbiton said, we considered whether that approach would be the best one, but, as he will remember from my opening remarks to the Committee, we did not think that a mere addition to the regulatory framework for health and safety would be good enough. We thought that we needed to raise the profile of corporate killing, or corporate manslaughter.

James Duddridge (Conservative, Rochford and Southend East)

Perhaps the Minister could assist me, as I am struggling with some of the history. At the Labour party conference in 1997, the then Home Secretary said that there would be a new offence of corporate killing. At what point did the Government make a commitment to introducing a new Bill?

Gerry Sutcliffe (Labour, Bradford South)

This has been a manifesto commitment for several years. My hon. Friends will remind me of that in their contributions later, if they feel that I have not met their concerns about it. It was first raised in 1997.

James Duddridge (Conservative, Rochford and Southend East)

I am starting to piece things together. Perhaps the reason for the Bill was to insert individual liability. Now that individual liability for directors has been removed, is there not a much better case for legislating via amendment to the 1974 Act?

Gerry Sutcliffe (Labour, Bradford South)

I am grateful for the intervention, but the simple answer is no. I hope to convince the hon. Gentleman of that. Like the hon. Member for Kingston and Surbiton, he tempts me to explain the motivation for the Government’s thinking about corporate manslaughter and the Opposition’s thinking about the 1974 Act.

I do not agree with what my hon. Friend the Member for Manchester, Central said about the motivations for the clause. I do not accept that that was the case. At Second Reading, there was a genuine understanding of the need to try to resolve the issue and there was a genuine viewpoint that the 1974 Act could be considered. I do not think that it is appropriate, but I am happy to accept the spirit in which it was mentioned.

Tony Lloyd (Labour, Manchester Central)

I made it clear that the spirit in which the Opposition addressed the matter absolved them from any charge, and certainly it is fair to say that the hon. Member for Beaconsfield—some say “Beacon’s field”—has consistently said that the 1974 Act motivates what he says. All hon. Members on both sides should respect that.

Gerry Sutcliffe (Labour, Bradford South)

I am grateful to my hon. Friend for that clarification. He did say that that was a charge that could be made but that he certainly would not make it.

Under the Opposition’s proposal, the vast majority of work-related deaths could result in a conviction. That would be several hundred a year. No distinction would be made between the company with not quite adequate standards and the truly bad company with appalling standards. A key part of the new offence is the proper labelling of behaviour that rightly should be recognised as an offence of homicide, not a simple breach of health and safety laws.

Of course, that defect could be remedied by requiring the breach to be gross, but the offence would still not distinguish between corporate failure and a breach, albeit very serious, of a simple prescriptive health and safety requirement. Again, that could be remedied with a requirement for a failure in the way an organisation managed an activity, and the necessary material to prosecute Crown bodies and police forces could be introduced to remedy defects. However, unsurprisingly, once those changes were made, we would find ourselves looking at the Bill.

I do not accept the challenge that having the Bill increases the time scale for bringing cases forward. Corporate manslaughter charges may arise from a major incident such as a large-scale transport incident, but, by the very nature of such incidents, any investigation would be lengthy and complicated. Even at the smaller end of the scale there will be cases involving a fatality and the possibility of serious criminal charges, and they must be investigated thoroughly and comprehensively.

Dominic Grieve (Conservative, Beaconsfield)

I apologise that coming back from Northern Ireland this morning has delayed my arrival in Committee.

It was personal experience that led me to suggest that there would be more delay. I remember a case in which I was involved within the last four years in which the old type of corporate manslaughter was being considered, along with possible personal manslaughter charges against directors. I think that that resulted in a delay of some 12 months before the case was finally brought to court under the Health and Safety at Work etc. Act 1974, and the defendants pleaded guilty. That was because there were two completely different, albeit co-operating, strands of investigation. That what was I based my comments on and I do think that there will be longer delays. The Government may be happy to accept it, but that is the reality.

Gerry Sutcliffe (Labour, Bradford South)

Given the business that he has been involved in, I accept and acknowledge the hon. Gentleman’s experiences. The Government believe that delays may happen in other ways. The Crown Prosecution Service may decide not to press corporate manslaughter charges, and the Health and Safety Executive may then take over the lead in the investigation and consider health and safety charges. However, we believe that a more effective offence of corporate manslaughter will increase the chances of corporate manslaughter charges being brought in the first place, and hence speed things up. Individual charges can be made on health and safety grounds at the same time as corporate-based charges. Nevertheless, there is a disagreement between the Government and the hon. Gentleman, and that will show during progress on the Bill.

On new clause 2 and amendments Nos. 74 and 75, there would be a new offence entitled corporate killing. The 2000 consultation paper used that term to describe the proposed new offence in the context of the Law Commission’s proposal to replace the common law on involuntary manslaughter with two new offences of reckless killing and killing by gross carelessness. The proposed offence of corporate killing was intended to sit alongside those two offences. However, the new offence will sit within the structure of existing homicide offences, and the terms “corporate manslaughter” and “corporate homicide” are therefore more appropriate descriptions. They underline the relationship with existing homicide offences and provide a transparent way for the public to understand exactly the extremely serious nature of the offence.

Dominic Grieve (Conservative, Beaconsfield)

If I may make the position clear, I would not be suggesting a change to the Bill’s long title unless new clause 2 were also adopted. I suggested a change to the long title because it seemed to me to be inappropriate to refer to the aggravated offence of breach under the Health and Safety at Work etc. Act as being corporate manslaughter, because plainly, given the manner of proof, it is not. That was why I opted for the expression “corporate killing.” If that term does not commend itself to the Government and to the Committee, I would not seek to change the long title.

Gerry Sutcliffe (Labour, Bradford South)

I am grateful for that clarification. I hope that the hon. Gentleman understands our reasons for objecting to the proposals. He will know that during scrutiny it was commented that manslaughter is an outdated term and may even cease to be used as a result of the ongoing review of the law of murder. The outcome of that review is too far in the future for us to anticipate it now, however. On balance, the scrutiny report favoured the term “corporate manslaughter” over “corporate killing”, and we agree.

Clause 1 is a vital part of the Bill and represents the heart of the reform that we are seeking to achieve. It establishes new offences of corporate manslaughter and homicide, sets out a new test for corporate liability on a truly corporate basis, and applies the new offence to all incorporated bodies as well as Government Departments.

Dominic Grieve (Conservative, Beaconsfield)

I must apologise to the Minister if, in making a few remarks, I mention things that he has already dealt with before I entered the Room, but asI tabled the amendment I should perhaps briefly address it.

I picked up on one important point that the Minister made which is valid in a sense. In proposing newclause 2, I am proposing a completely alternative approach to tackling the difficulty of workplace-related death, and of people being killed by the activities of corporations. My reason for doing it was to put forward a simplified structure because, having read the Bill, I felt that it is at least arguable that having an aggravated offence under the 1974 Act will produce the same results—namely substantial and heavy fines on corporations that kill people in the workplace or those affected by their activities—but in a much simpler structure, which will make conviction far easier and lessen the tendency of companies to try to take up court time by resisting such prosecutions. That is the intention.

Seeing that the Government have acknowledged that the only end penalty will be a financial one—although the Committee will debate other options—one has to look at the end result and ask oneself whether this rather complicated piece of law will really do more good in the long run than simply having an aggravated offence under the 1974 Act.

Tony Lloyd (Labour, Manchester Central)

Will the hon. Gentleman give way?

Roger Gale (Conservative, North Thanet)

Order. I have a sense of unease about this debate. I know that the Committee understands, as the Chairman certainly understands, the onus on Members to be in more than one place at a time. The Committee also respects the detailed knowledge that the hon. Member for Beaconsfield has of the subject. However, before we go any further I should point out that we are in some danger of going over ground that his hon. Friend, the hon. Member for Hornchurch, leading for the Opposition while he was not here, has already covered. We could be in danger of re-rehearsing the entire debate. I mention that as a courtesy to the whole Committee in the hope that the hon. Member for Beaconsfield will take my point on board.

Dominic Grieve (Conservative, Beaconsfield)

I hope very much to take that point on board. I am sure that the Committee will scowl at me if I go over old ground, so I shall keep my remarks brief.

Tony Lloyd (Labour, Manchester Central)

I, too, will try to keep my intervention short. The nub of the argument is something that the hon. Gentleman will recognise from his own extensive practise. How do we give the appropriate signal? The issue is almost encapsulated by the phrase that he used. I cannot remember exactly how he completed the sentence, but he talked about cases being “simply” under the framework of the Health and Safety at Work, etc. Act 1974. Although I can understand the technical elegance and his attempt to incorporate a fast-track system of justice, that approach would send a difficult signal, because it would take us away from the existing corporate manslaughter legislation, which is there but simply inadequate. That is the problem.

Dominic Grieve (Conservative, Beaconsfield)

I entirely accept that point, which concerns one of the balancing exercises that the House and the Committee must perform. Since I anticipate that I shall lose this argument, I shall support the Minister to the best of my ability to try to ensure that the Bill goes on to the statute book, as the Government intend, as corporate manslaughter.

Ian Stewart (Labour, Eccles)

The Committee has accepted that what the hon. Member for Hornchurch presented on behalf of his party this morning was in the right spirit and developed our understanding. However, could the hon. Member for Beaconsfield say why, in explaining his opposition to the concept of a custodial sentence for a named director, he does not accept that he has, even symbolically, changed the approach, by using the term “killing” instead of “manslaughter”? How does he reconcile the rejection of a named director and a custodial sentence when we are asked to accept that killing has taken place?

Dominic Grieve (Conservative, Beaconsfield)

Manslaughter has a well-established definition in our law, which is killing as a result of gross negligence or sometimes, under criminal law, as killing somebody when doing an unlawful act towards them that falls short of intent to cause them grievous bodily harm. That is a well-established definition, but, to pick up on the Government’s thinking, once we depart from the established test of manslaughter, we should be careful about ending up with custodial sentences for individuals. Historically, we have not imprisoned people for negligence in this country, although we seem to be making an inroad in that direction with the offence of causing death by careless driving in the Road Safety Bill, which is one of the reasons I vehemently disagree with it. Indeed, if I had had an opportunity at Report, we would have had a debate and I would have explained why I thought that was the wrong approach.

In creating corporate manslaughter, the Government have added something to the manslaughter body of law, but they have done it in such a way that, when they reflected on it, they could not see that it was justified to lock up an individual merely because the corporation had been convicted. I believe the Government are 100 per cent. right about that. You have to show that manslaughter has been proved against the individual. That can be done under the old law, if one thinks there is a basis for doing it. The fact that someone is the company director of a big corporation, which ought to behave better, does not mean that he should be locked up for manslaughter unless it can be shown that he, personally, has been grossly negligent. That is why I do not like departing from that principle.

Given that we are dealing only with corporations, why should we get hung up on the word manslaughter? One should look at the penalty. However, I accept—I said this earlier and on Second Reading—that manslaughter has a stigma attached to it such that even when applied to a corporate body, there may be some force in arguing that we should prosecute them for that. However, if we are going to depart from that, we should have an offence of corporate killing and the Health and Safety at Work, etc. Act should be amended, although it should be made quite clear that an aggravated offence under that Act is not equivalent to manslaughter in our old law—although the tests for prosecution and conviction are much simpler, which is why it is attractive to prosecutors.

I have picked up two points from the debate that I might be able to deal with now. I am told that the hon. Member for Kingston and Surbiton—who is now not in his place—asked what consultation I had conducted before presenting my proposal to the Committee. The subject of corporate manslaughter has been discussed extensively over the past three years at the criminal Bar, which does health and safety work, and at various informal seminars, and my own chambers organised a discussion on it. At the risk of incurring the Committee’s wrath, our impression is that the proposal is fascinating, but it is good money for lawyers; we questioned whether, ultimately, it would make a substantial difference to the culture within corporations. It has been chewed over endlessly—if I have been doing a health and safety at work case, it is the subject that is talked about during coffee breaks. It has been topical at the Bar. That is the extent of the consultation. There has been no more structured consultation, although I discuss the subject with solicitors and anybody I meet. It has been very much uppermost in my mind over the past two or three years.

The second point relates to penalties. I heard the Minister make a perfectly sensible point when he said that, if we are going to prosecute for an aggravated offence where a death occurs, everybody is going to be convicted of that aggravated offence because they are going to be prosecuted for it the moment that a death results. That will, he said—I hope I paraphrase him correctly—lead to a sentencing difficulty. In some cases, although there is a death, the culpability is not very great, whereas in others, although there is a death, the culpability is enormous. That is absolutely true. It is also true to say that under the old regime—that is, the present regime of the Health and Safety at Work, etc. Act—killing somebody is not necessarily the worst thing that one can do under the Act.

I once did a case concerning a nuclear power station in which, although nobody was hurt, killed or contaminated, the risk created by the activities of those running the power station, at Wylfa in North Wales, was such that, if not for the grace of God, there would have been a plume of contaminant which, depending on the direction of the wind, would either have come down to Luton or gone to Dublin. Whichever it was, it was not very good news. The company was fined a very substantial amount—hundreds of thousands of pounds—for that breach even though, as it turned out, nobody was injured at all. Equally, one may do Health and Safety at Work, etc. Act cases in which somebody dies and although the person may be guilty of a breach under the Act, most people considering it would have considerable sympathy with the employer. Sometimes there is considerable contributory negligence by the employee, and sometimes there is a coming together of unfortunate circumstances.

The disparity already exists but—this is the problem that the Minister and the prosecutors will have to face up to—once corporate manslaughter is on the statute book in the form it takes in the Bill, the pressure willbe on prosecutors to prosecute for corporate manslaughter every time there is a death, but in many cases people will look at what went on and say, “Well, actually, it’s only a breach of the Health and Safety at Work Act,” and there will be a lot of public outcry and pressure. It will often be misplaced, but we only have to look at the example of the problem with the Road Traffic Acts to see that that is exactly what has happened there, too. A terrible accident happens—for example, five people are killed in a pile-up—but the blame on the person who caused it is tiny and he is prosecuted for careless driving under the Road Traffic Acts, which leads to a fine of £250 and a big outcry.

It is precisely because I want to get away from that I decided that we should have an offence that, although it does not impose imprisonment on an individual, states that if someone is killed as a result of negligence that is a separate offence, and that leaves the judges to put in the necessary differentiations through the fines. The Sentencing Guidelines Council can do that. It will mean that sometimes, as in my Wylfa nuclear power station case, a big fine is imposed when no one dies; equally, someone may be prosecuted for the aggravated offence and be fined much less. However, those issues will always arise, and we have to leave them to the judiciary to sort out because we in Parliament certainly cannot do so.

Ian Stewart (Labour, Eccles)

The hon. Gentleman has outlined the spectrum of culpability and he explains that there may be circumstances in which an individual may have little culpability. However, does he not recognise and accept that we are trying to focus on the other end of the spectrum, where there is clear culpability? Is it not self-evident, glaring and accepted that, in such circumstances, we must do what we can to ensure that the families of the deceased feel that justice is done, in the words of the hon. Member for Hornchurch?

Dominic Grieve (Conservative, Beaconsfield)

Yes, I agree. That is a good reason to try to do what the Government are setting out to achieve. All I am saying is that, based on my professional experience, my hunch is that there will be quite a lot of cases that, as cases always do, will fall in the grey area between being a breach of the Health and Safety at Work, etc. Act with no recognition of death—death is recognised as an aggravating feature in sentencing, but that is only in the sentencing guidelines—and being corporate manslaughter.

I hazard the suggestion that we might well end up with people feeling that the death of a relative or friend has not been adequately recognised because, perfectly properly, the prosecutors has considered what went on and said, “I’m sorry, but this is not corporate manslaughter as defined in the Bill.” There will be a health and safety prosecution, the company directors and everybody else at the company concerned will breathe a sigh of relief, go to court cheerfully, plead guilty and be fined, and people will come away feeling distressed and unhappy. That is always a problem.

I have prosecuted cases where, for some reason or another, the evidence has failed in the course of the case and I have had to accept pleas to regulatory breaches and not a breach of the Health and Safety at Work, etc. Act. I remember how difficult it was to explain to the relatives of the deceased person why I had done that, which, as the prosecutor, I had a duty to do. In fact, I had no option. I know from that experience how difficult that is. The Bill offers a way around that problem because all that is left is fixing the tariff for the penalty.

Equally, however, the hon. Gentleman is perfectly right: if what the Government want to do is to identify a particularly bad form of behaviour—I see the Minister nodding—and then to structure a quite complex offence targeted solely at corporations, which will be visited by a fine, so be it. The Government accept that not much can be done other than to fine corporations. That is dealt with in clause 9. There will be no unfairness. The trial will be perfectly fair and the proposed structure is reasonable, but if I am asked my opinion, I will have to say that I really wonder whether we are not taking a slightly blunt instrument to the problem, and whether we could not generate as good a culture change by what seems to me to be a neater and easier alteration to the law that would lead to a very high rate of conviction and might impose some stigma. After all, under my proposals, a company would be found guilty of corporate killing. I know that that is not quite the same as manslaughter, and I think that we should keep such distinctions present, but it still does not sound very good in a company’s annual report to shareholders, and we will secure more convictions.

There are two options. I have presented my option. I have probably spoken too long. I apologise, Mr. Gale, and thank you for your indulgence on the matter. I shall not trouble the Committee further, except to apologise for not being here at the start of the sitting.

Gerry Sutcliffe (Labour, Bradford South)

I set out the Government’s position earlier. I respect wholeheartedly the hon. Gentleman’s right to put the Opposition’s case for the reasons that he gave. Nobody in the Government would challenge his professional experience, but there is a clear, fundamental difference between our approaches to the problem. That was clear on Second Reading and has been clear in Committee.

The Government believe that the Bill is about changing the culture and ensuring that corporate bodies understand their responsibilities. There is a difference of opinion between us, but I still hope that hon. Members will support clause 1.

Schedule 1

Gerry Sutcliffe (Labour, Bradford South)

I beg to move amendment No. 7, in page 14, line 3, at end insert—

‘Assets Recovery Agency’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss Government amendments Nos. 8 to 29.

Gerry Sutcliffe (Labour, Bradford South)

The Bill will, for the first time, remove Crown immunity to prosecution. It is a significant step that raises a number of practical issues that the Bill must deal with, particularly the fact that the offence is one that is committed by organisations and not by individuals, but the vast majority of Crown bodies, such as Departments, do not have their own legal identity distinct from the Crown. A mechanism is therefore needed to identify those organisations that operate on behalf of the Crown and against which proceedings for the new offence could be taken. The purpose of schedule 1 is to identify those bodies and others in a similar position.

There is no need, however, for the list to cover public bodies that are incorporated, because they will be covered automatically by the offence. They include a wide range of bodies in the public sector such as local authorities, NHS hospital trusts and other NHS bodies and a wide range of statutory non-departmental bodies as diverse as the Health and Safety Executive, the Parole Board and the Civil Aviation Authority. Few such organisations have Crown immunity. They are therefore already liable to prosecution for gross negligence manslaughter.

The schedule therefore focuses on ministerial and non-ministerial Departments. We have identified a number of further departments that must be added to the schedule. They are the Assets Recovery Agency,the Central Office of Information, the GeneralRegister Office for Scotland, the Land Registry, the National Archives, the National Archives of Scotland, National Savings and Investments, the Office for National Statistics, Ordnance Survey, Registers of Scotland, the Revenue and Customs Prosecutions Office, the Royal Mint and UK Trade and Investment.

We also propose to add to the schedule three statutory bodies: the Welsh Assembly Government, the National Audit Office and the Northern Ireland Audit Office, which are all statutory organisations that are not incorporated and therefore need to be listed to ensure that the offence applies. On the other hand, the schedule will not list all Departments, because a number are incorporated and will be covered by the offence without being listed in the schedule. They include Northern Ireland Departments, the Office of Fair Trading, the Food Standards Agency, the Office of Rail Regulation and the Postal Services Commission.

The amendments will remove a further two bodies from the list because they are becoming bodies corporate. One is the Charities Commission, which is due to become incorporated as a result of the Charities Bill.

Michael Fabricant (Conservative, Lichfield)

When the Bill becomes law, as I assume it will, if other Government agencies are set up or change their structure and become corporate, will there be a mechanism to bring them into its ambit or to remove them from it?

Gerry Sutcliffe (Labour, Bradford South)

I hope to explain that further during my speech.

As I said, the Charities Commission is due to be incorporated under the Charities Bill. The Office for Standards in Education will become a body corporate under the Education and Inspections Bill. In addition, the Office of the International Rail Regulator is removed from the list because it has been abolished. The reference to the Public Records Office is removed because it is now part of National Archives, which has been added to the list.

References to the Scotland Office and the Wales Office are also removed under amendments Nos. 26 and 28 because although they are technically Departments, both bodies are administratively a part of the Department for Constitutional Affairs and, for practical purposes, it is that body that should be responsible for the duties of care owed to staff and others. Generally, no further clarification would be needed that the listing of a Department included all its associated bodies. For example, although the Commissioners for the Reduction of the National Debt and the Public Works Loans Board are both non-ministerial Departments, they are both also part of the United Kingdom Debt Management Office, an executive agency of the Treasury, and therefore covered by the listing of that Department. However, as there are separate Secretaries of State for Scotland and for Wales, the better approach is to clarify that the entry for the Department for Constitutional Affairs includes the Scotland Office and the Wales Office. Amendment No. 10 achieves that.

I have mentioned Executive agencies and some hon. Members will have spotted that a number of bodies included in the schedule are Executive agencies. Our approach is to list all Departments, whether or not they are also Executive agencies. In other cases, Executive agencies will be fully a part of their parent Department. There is a degree of managerial independence, but no formal separation. It is not our intention, in applying the offence to the Crown, to alter the relationships between Departments and agencies by introducing any formal separation through the provision of independent criminal liability. That does not mean that fatalities associated with Executive agencies will not be covered by the offence. The listing of a Department covers its associated agencies.

I am conscious that I have spoken at some length—hopefully with some clarity—on this group of amendments and, in doing so, I have had described them in the wider context of how the schedule operates and the policy behind the compilation of this list.

Clause 19 makes provision for the schedule to be amended by secondary legislation. That deals with the point made by the hon. Member for Lichfield (Michael Fabricant).

Clause 3

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I beg to move amendment No. 123, in page 2, line 23, after ‘supply’, insert ‘or provision’.

We may now begin to discuss a series of amendments, with which we will no doubt deal in greater detail this afternoon, on the extent of the exemption from the new offence for public authorities. The Government are trying to narrow the relaxation of Crown immunity rather too much. That will be clear in specific examples that we will debate in detail.

Amendment No. 123 would start to whittle away the restrictions that the Government are imposing. They seem to think that the exemptions are valid because public sector bodies are accountable in different ways: to Parliament or via the prospect of judicial review, public inquiries and ombudsmen’s inquiries and so on. However, we do not accept that such forms of accountability work as powerfully as we need them to when we are dealing with something as serious as corporate manslaughter.

I am sure that the Minister is aware that although ministerial responsibility and accountability can sometimes apply, in many cases Ministers find ways of ensuring that they do not. That has been the case under not only the present Government, but many past ones. The constitutional doctrine has fallen into misuse and non-use on many occasions.

I am not convinced that the Government have adopted the right approach. Judicial review will not apply—primarily because if the limits are in statute, there will be nothing to review. As we all know, whether public inquiries occur is rather haphazard; Ministers often resist them until the last moment. Legislation that has recently passed through the House looks as though it will make that type of accountability even less likely. The same concerns relate to ombudsmen. The Government’s approach to justifying the exemptions does not bear much scrutiny.

By ensuring that we understand the distinction between “supply” and “provision”, amendmentNo. 123 seeks that the restrictions on public authorities in general should not be drawn too narrowly. Most public services involve supply, but in certain cases they involve not supply but provision. The distinction was taken up by the Select Committees, which felt that the Government did not emphasise the use of the words in the draft Bill. The Committees felt—and I agree with them—that by excluding the notion of the “provision” of public services, there was a real attempt to limit applicability.

I shall give concrete examples. David Bergman, director of the Centre for Corporate Accountability, told the Joint Committee that the Home Office had made it clear to him that there was an intention to restrict. The Home Office felt that by not including the word “provision”, services such as the police, the Prison Service, law enforcement bodies and inspection agencies would not be covered in respect of many of their activities. That is particularly surprising.

There is a danger that the problem will slip in. In later clauses, there are specific provisions on such services and bodies. However, clause 3, which is framed more generally, contains words that would also impinge on such bodies. I am sure that there is no intention to mislead, but there could be confusion. I hope that the Minister will try to explain why he wants to go down that route. We feel that it will have unintended consequences.

Dominic Grieve (Conservative, Beaconsfield)

I have listened carefully to the hon. Member for Kingston and Surbiton; he makes an important point. I shall be interested to hear the Minister’s response, but, oddly enough, I am not entirely persuaded that the removal of the word “provision” makes a bean of difference. The word “supply” must cover provision. I am worried and alarmed that the Home Office seems to have got it into its head that removing the word may be the vehicle for getting it off the hook of its responsibility.

Subject to hearing the Minister’s views, all I can say to the hon. Member for Kingston and Surbiton is that if I were a lawyer acting for the Home Office I might be a little worried about going into court to argue that removal of the word “provision” actually made any difference to where responsibility might lie. There are other exemptions in the Bill, of course, that relate to public policy issues, and that may be the nub of the debate that the Opposition want. However, I am not persuaded that there is any difference in having the word “supply” rather than “provide”. I think that the supplier is the provider, and the provider is the supplier, and that the two words are in practical terms interchangeable.

Gerry Sutcliffe (Labour, Bradford South)

I am grateful to the hon. Member for Beaconsfield for putting the Government’s case yet again—I am delighted that he is doing that because it is very helpful. He is right to say that the motivation for the amendment derives from the untrusting approach of the hon. Member for Kingston and Surbiton to the exemptions that we shall discuss later. I think that that was what motivated him to move the amendment relating to the difference between the words “supplied” and “provided”. He will not be surprised when I say that I do not share his views.

So the Committee understands why we prefer the wording as it stands, let me remind Members why the Government have chosen to provide for categories of duty. We considered the point last week, so I shall try to be brief. The new offence applies when the organisation in question owes a duty of care to the victim under the civil law of negligence. In the vast majority of cases, we would expect matters to be straightforward, and that no particular issues would be raised. For example, it will take little effort to establish that an individual was employed by a company, and was therefore owed a duty of care. Similarly, there is no argument that rail passengers are owed duties of care by rail companies. However, this is a developing area of law, especially in relation to the liability of bodies that carry out public functions. We therefore sought to provide clearer guidance on when the offence will apply by setting out the types of activity that it is intended to cover. That will give certainty to organisations and to the public about which situations are not 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 consideration of detailed questions about the duty of care.

The categories cover three types of duty: duties owed to those working in or for an organisation company; duties owed in respect of the workplace; and duties owed in respect of a company’s activities. At present we are concerned with the last category. Our intention is to list circumstances in which duties of care will commonly arise, and the starting point is when an organisation is supplying goods or services. The term “supply” is used deliberately in that case; it is intended to cover the relationship between companies and either 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 also covers services supplied by the public sector, such as NHS bodies offering medical treatment, or local education authorities offering services to schools.

However, 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. Using the term “provide” rather than “supply” would therefore undermine the very clarity that we are trying to achieve. It would encourage potentially speculative investigations on the basis that the courts might perhaps be persuaded to extend the duty of care. We do not think that that is desirable.

I hope that that satisfies the hon. Gentleman. If not, I have more, but given the time I hope that he will withdraw his amendment. We will discuss exemptions later.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

It is interesting that the Minister said that the hon. Member for Beaconsfield was answering me. It seems that the Minister is now answering him on my behalf, so there are some interesting dynamics.

I shall not prolong the debate. I am glad that we teased out of the Minister, for the record, the distinction made by his colleagues and the Home Office, because it was an important point and we may wish to return to it. I beg to ask leave to withdraw the amendment.

Tony Lloyd (Labour, Manchester Central)

I beg to move amendment No. 92, in page 2, line 29, after ‘vehicle’, insert ‘, substance hazardous to health,’.

The amendment is very simple—

Standing Committee B

Clause 3

Tony Lloyd (Labour, Manchester Central)

I hope, Mr. Benton, that you will give me some leeway and consider what I say now not simply to be a repetition, but a reminder.

Amendment No.92 is straightforward. The purpose of clause 3(4) is to delimit construction or maintenance operations and members of the Committee will see a whole series of activities that are caught by this part of the Bill. What amendment No.92 seeks to do is insert the words “substance hazardous to health” at page 2, line 29 after “vehicle”. I do not wish to dwell on it, but it is a matter of practical fact that substances hazardous to health are those substances that can in some circumstances cause injury, but in some circumstances can kill. It is important to recognise that in the context of the Bill we are talking about those circumstances where substances hazardous to health were sufficient to have resulted in death.

The purpose of the amendment is simply to add words because at the moment it is not obvious that among the activities listed, the failure to operate properly and in a safe manner consistent with health protection in the use of hazardous substances is covered by this part of the relevant duty of care. The relevant duty of care must contain reference to the question of substances hazardous to health. I would like the Minister’s assurance—it would be helpful in terms of the way in which the legislation is interpreted—that it is implicit in the Bill that substances hazardous to health are included. Alternatively, if he is unable to do that, will he accept that there may be a need to amend the Bill? Obviously, I will listen to the Minister’s words carefully and I hope we can make it clear that there is no intent that these substances should be out of the scope of the Bill.

Ian Stewart (Labour, Eccles)

In support of my hon. Friend, earlier in the sitting this morning the hon. Member for Beaconsfield (Mr. Grieve) and other hon. Members talked about the difference in breadth in terms of the Health and Safety at Work, etc. Act 1974. Part I section 2(2)(b) of that Act talks about the use, handling, storage and transport of articles and substances. That clearly shows why my hon. Friend the Member for Manchester, Central (Tony Lloyd) has tabled this amendment. If the Minister is unable to accept the amendment, the words that he says as recorded in the Official Report will become all important.

Dominic Grieve (Conservative, Beaconsfield)

I was about to intervene on the hon. Gentleman, but as he has finished I will put in my pennyworth.

The Health and Safety at Work, etc. Act 1974 was drafted in the 1970s according to what I regard as rather old-fashioned principles of drafting compared with those we have now; there was a tendency to dot the i’s and cross the t’s. Therefore, the amendment strikes me as being perfectly reasonable. That said, my reading is that a hazardous substance would be covered by the “other thing” in subsection (1)(a)(iv). However, it is a sign of changes in the way we draft legislation that nowadays we put in far more assumptions, rather than including every possible item.

Ian Stewart (Labour, Eccles)

Eminent as the hon. Gentleman is, he is not the Minister, no matter what he thinks. It is the Minister whom we want to hear.

Dominic Grieve (Conservative, Beaconsfield)

In this context I am pleased not to be the Minister—I shall leave him to answer for himself. I can only give the hon. Gentleman the benefit of my thoughts in so far as I have considered the amendment and wondered whether there was any merit in what he and the hon. Member for Manchester, Central have said.

Gerry Sutcliffe (Labour, Bradford South)

I welcome you to this afternoon’s proceedings, Mr. Benton. I also thank my hon. Friends the Members for Eccles (Ian Stewart) and for Manchester, Central for their support for the amendment, which is important for the reasons given. It is important that the Bill should cover the sort of activities that have been referred to and I am pleased that they are on the record. I am also grateful for the legal advice that the hon. Member for Beaconsfield gave.

I am satisfied that the substances that my hon. Friend the Member for Manchester, Central talked about are properly covered by the Bill as it stands. Quite rightly, subsection (1)(c)(iv) already refers to

“the use or keeping by the organisation of any plant, vehicle or other thing.”

The last term is deliberately intended to be very broad. It is certainly broad enough to cover the sorts of substances that my hon. Friend is concerned about. As the hon. Member for Beaconsfield said, the reason for including the term “other thing”, which is not prescriptive, is that additional wording could start debates about whether the intention was to exclude substances that are not inherently hazardous to health, or arguments about whether a substance is a hazard to health or simply dangerous. It is important that the offence extends to the use of drugs in hospitals and the storage of petrol.

I fully support the sentiments of my hon. Friend in tabling the amendment. My reply is intended in no way to diminish the importance of the topic or the need to ensure that the Bill extends to hazardous substances. However, I am satisfied that they are already properly covered and that we would not improve the Bill by including a specific reference. I hope that on that basis my hon. Friend is happy to withdraw the amendment.

Tony Lloyd (Labour, Manchester Central)

I am reassured by the Committee’s legal adviser and even more so by the Minister. It was important that he placed his words on the record. I am satisfied in any case that hazardous substances were probably covered but, as the hon. Member for Beaconsfield pointed out, there was a time when things would automatically have been included beyond peradventure, whereas we now perhaps leave a little more to interpretation. I can understand arguments for both approaches, but what is important is that the intention of Parliament has been made clear by the Minister’s statement, so that it is clear in any future interpretation, and usable in any proceedings, that the many substances that are hazardous to health are covered by the Bill. I beg to ask leave to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 135, in page 2, line 32, leave out subsection (3).

This is a probing amendment, although behind the probe there is a certain amount of wondering on my part about what the Government have done. Subsection (3) establishes that although corporations will be tried by jury for any allegation of corporate manslaughter, it seems that the trial will fall into two distinct parts. It will remain within the jury’s province to decide whether there has been a breach of any duty of care, but the Government have spelt out that the decision of whether a duty of care is owed to a particular individual by a corporation is a question of law. I do not disagree with that—it is quite clear.

However, subsection (3) also states:

“The judge must make any findings of fact necessary to decide that question.”

The Minister will correct me if I am wrong, but this seems to be a bit of a novelty in our criminal law. I would normally expect the judge in a criminal trial to determine the scope of the duty of care as a question of law and to put that to the jury in the summing-up as part of a twofold process, saying, “Members of the jury, you have first of all to decide whether the facts amount to owing a duty of care. If you are satisfied that they do, you must decide whether that duty has been breached.” The judge would guide them on the law and explain that a decision on the law was for him. However, the final decision would still lie with the jury, which would decide if the facts, as described and given to them by the judge, amounted to a duty of care in the first place.

The Government have gone for a completely new system. I am not necessarily against that. I have a lot of confidence in jury trial. However, removing this aspect of a jury’s role in deciding the primary facts on which duty of care might be established is a bit of a novelty. I am also puzzled as to how it will be done in practice. How will the trial be split up so that the twofold process takes place? Presumably, the prosecution will present its case to the judge and there will be an opportunity for the defence counsel to submit that there is no case to answer at half-time. However, that might not be enough and the defence case might have to be presented; then the judge would have to rule before he summed up to the jury as to whether he had decided that there was a duty of care in existence in the case in question and what the facts were upon which he made that decision. I assume that the Government intend the courts to adopt that procedure, but I should be grateful if the Minister explained how this will work out in practice, because there is a certain novelty about it.

If the jury will not be the arbiter of whether the facts are such that a duty of care is owed—under the judge’s guidance on the law—I am worried that we may risk juries reaching conclusions on whether there has been a breach of duty of care that are incompatible with the facts on which the judge has decided that the duty of care exists in the first place. We need to think about that.

On the whole, our criminal courts have moved away from the principle that judges can direct juries to convict. The Minister may be familiar with, or may remember, the Ponting case. Mr. Ponting admitted to a national newspaper various facts about disclosing documents that were subject to the Official Secrets Act. Frankly, the facts that he admitted were the offence, and he as good as admitted the offence by admitting to the set of facts. I recollect that the judge indicated to prosecution and defence counsel that he was minded to give the jury a direction to convict Mr. Ponting. The prosecution quickly rowed away from that idea, because it thought that it was in rather dangerous waters. As a result, Mr. Ponting was, rather surprisingly, acquitted, because the jury took a robust and wholly individual view of its own about whether he was guilty.

Perhaps in the circumstances about which we are talking such a problem will not arise in quite the same way. The judge will say, “I tell you as a matter of law that a duty of care exists in this case. Therefore, all you have to decide is whether it has been breached.” However, although that sounds simple, one could face problems if the jury, having listened to all the evidence, were not satisfied that a duty of care existed at all, notwithstanding whatever the judge might or might not tell them. One may end up with difficulties with a two-stage process.

I want to make it clear to the Minister that I wish to hear more from him about how the Government envisage that working, what discussions they have had with the judiciary about how it would operate in practice and what thought has been given to the practical difficulties of a two-stage approach.

Tony Lloyd (Labour, Manchester Central)

I may be about to talk nonsense, but one of my worries about the duty of care is that it is often breached when an illegality is involved in the process. Let us consider the cockle pickers’ accident. If illegal immigrants were working illegally in that framework, would there be a breach of the duty of care? Would it be a defence in the case of corporate manslaughter to argue that there was no duty of care, so even though materially the same company in the same circumstances would clearly have been guilty of corporate manslaughter, it could avoid the charge and the penalty? What concerns me is leaving a big hole in legislation affecting the most vulnerable people in our society.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman describes a hazardous area in which lawyers fear to tread. On the face of it, duties that are specified in clause 3—under “Meaning of ‘relevant duty of care’”—including, in particular, the definitions of the law of negligence at the top of page 3 of the Bill cover a duty to people who may be acting unlawfully themselves. I shall give an example. I might have cited what I am about to describe earlier, in which case I ask the Committee’s indulgence if I repeat myself.

I refer to the case of young children who routinely trespass through a service yard where lorries are manoeuvring. They are undoubtedly there as trespassers. Notices are frequently put up saying that they should not come into the yard and attempts are made to fence the yard to prevent children from using it as a short cut. I had a similar case, although it involved a little old lady who routinely used a marshalling yard as a short cut to the shops.

The route was used frequently, so the wire was often cut. Having simply tried to fence it off, the company concerned took no further steps to have regard to the fact that, when lorries were manoeuvring, occasionally people were in the yard who should not have been there. The situation results in a reversing lorry running over a child. My view is that, notwithstanding the duties of care that are outlined or restricted, that case would be capable of being prosecuted as corporate manslaughter if it could be shown that there was a serious failure to have regard to a clear and obvious risk that arose from the unlawful activity. I give that as an example to the hon. Gentleman, and I do not believe that that is something that could be prevented.

Matters cut both ways. Undoubtedly, establishing whether or not a duty of care exists is very much a matter for a trained lawyer, but the trouble remains that the decision of juries will, I am sure, be influenced about whether there is a breach of the duty of care by their attitude and whether they regard it as common sense for there to have been a duty of care in the first place. As the Ponting case highlighted, whatever judges may tell juries in their summing up that the law says that there was a duty of care in certain cases, it would be idle to pretend that that may not have an impact on the way in which juries view cases. When dealing with people who are engaging in unlawful practices, juries may subconsciously or consciously have regard to that when reaching their decisions. That is why I am so interested in hearing from the Minister about how the Government think that the system will work in practice. I have a very slight niggle that it may prove to be a little more complicated than has been realised. Once a judge starts removing decisions from the jury, there is the potential for a clash between the two, which would lead to Court of Appeal hearings and all sorts of difficulties. I would like to see whether we can prevent that.

Gerry Sutcliffe (Labour, Bradford South)

As the hon. Gentleman said, amendment No. 135 would remove the requirement for the judge to decide whether a duty of care is owed. I am no lawyer, and, like the hon. Member for Kingston and Surbiton (Mr. Davey), neither do I aspire to be one, but I do not wish to be disrespectful to lawyers. [Interruption.] On this occasion I do not wish to be disrespectful to them.

For the benefit of the Committee, I shall go through this information as slowly as possible, as it contains my legal advice from the Home Office. If there is a need to challenge it, I am sure that the hon. Member for Beaconsfield will do that.

I understand that in a handful of gross negligence manslaughter cases involving individuals, the point relating to the judge’s involvement has been considered. The position generally seems to be that it is for the judge to decide whether, legally, a duty of care could exist in the case, and for the jury to decide if one arose. In at least one case, the judge decided the matter and directed the jury that a duty existed as a matter of law.

To step back for a moment, I should emphasise that we doubt that this will be a specific issue for many prosecutions. The vast majority of the duties of care relevant to the offence are well established—for example, the employer’s duty of care to employees—so resolving the question of whether a duty was owed will be relatively straightforward. If there is doubt, the categories in the Bill will assist in determining whether a case should be brought, so the question will be more complex in only a small number of cases.

Generally, the duties that organisations owe will be considered and decided in the civil courts, where it will be the judge who settles the issue, as juries are not involved in civil negligence actions. That means that the question will primarily be a legal one, decided by reference to case law. We think that it is more sensible to require the judge to decide, in the same way that he would decide any other matter of law in the case. It also means that there will be consistency between civil and criminal law in this area, and that is important. Duty of care forms an important part of the regulatory framework for organisations, and it would not be sensible for organisations to owe a different set of duties for the purpose of this offence.

That approach will not affect the position in manslaughter cases involving individuals, where the question will remain with the jury. In those cases, the jury will decide whether a duty is owed between two or more individuals. In some cases, the decision will be straightforward—for example, the duties that parents owe to their children—but if the position is more complicated, the question will still be one of whether a particular individual owed a duty of care to another; for example, whether one drug user owes another a duty in relation to drug use.

Subject to the judge first deciding whether the facts are capable of giving rise to a duty, a jury of ordinary people will be in a strong position to assess the situation. The question of consistency with the civil law is less important because negligence actions against individuals are less common and duties of care do not provide the same regulatory framework for people as they do for organisations. That is the basis of the position so far.

The hon. Member for Beaconsfield and my hon. Friend the Member for Manchester, Central raised various issues. My hon. Friend’s concern is that cases such as that of the cockle pickers might not be covered because the Bill links the new offence to owing a duty of care in the civil law of negligence, and liability can be precluded in the civil law between people engaged in criminal activity. We considered that civil law principle, which is known as ex turpi causa non oritur actio—or something near that—when responding to the joint report of the Home Affairs and Work and Pensions Committees. Our view is that the doctrine, which operates as a defence to a civil claim, would not prevent a duty of care from being owed for the purposes of the new offence.

The Court of Appeal in Wacker decided that the doctrine had no application to manslaughter even though the necessary ingredient of gross negligence manslaughter existed, but that there had been a breach in the duty of care under the ordinary principles of negligence. We are satisfied that that would be no major obstacle in such cases.

The hon. Member for Beaconsfield asked what discussions there had been with the judiciary about the proposals. There has been extensive consultation on all aspects of the Bill, and this one in particular. Sir Igor Judge gave evidence to the scrutiny Committee and I know that judges have raised the matter with us.

The hon. Gentleman asked how splitting the role of the judge and jury will work in practice. As he knows, the Bill contains no special provision for that, and we are satisfied that none is required. Criminal proceedings will often involve questions that need to be decided by the judge as a matter of law and this matter will fall to be decided in the same way. It is worth remembering that in the majority of cases whether or not a duty existed would be a straightforward matter—for example, when the person killed was an employee or a train passenger. In cases of uncertainty a defendant can apply before the case reaches the court for it to be dismissed on the grounds that there is no case to answer. If it is not dealt with then, it can be raised as a preliminary point at the start of the proceedings in the way that points of law generally can be raised for the judge to consider. In the vast majority of cases, it should be straightforward. I hope that that helps the hon. Gentleman, and that he will be happy and content to withdraw his amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister, and he has gone a long way towards reassuring me. I certainly did not intend to press the matter to a vote. I shall go away and reflect on whether I am completely happy and if not I shall come back to the matter on Report. I should make it quite clear that this is a matter of practicality. It is not some big issue of principle for me, much as I like jury trial, and as long at the jury has the final say on whether there has been a breach I am content with the slightly unusual role of the judge. I was interested to hear, and was not aware, that a judge had on at least one occasion usurped the jury’s role in a gross negligence manslaughter prosecution by giving it direction of law as opposed to telling it what the law was and hinting at the probable outcome of what it should decide. That is not improper in itself. I beg to ask leave to withdraw the amendment.

Clause 4

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 43, in page 3, line 22, after second ‘a’, insert ‘ministerial’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment No. 44, in page 3, line 37, at end insert—

‘“ministerial” means a decision made by one or more Ministers of HM Government, Scottish Ministers, Welsh Ministers or Northern Ireland Ministers;’.

Dominic Grieve (Conservative, Beaconsfield)

We now come to rather an important and potentially controversial bit of the Bill, although again I should make it clear that these are probing amendments and I am interested in trying to tease out exactly what the Government intend so that we can decide whether we think that they are going far enough or too far.

Amendment No. 43 would exclude only ministerial decisions from the public policy decisions that might be made by officials, and amendment No. 44 goes on to define a ministerial decision. Clearly, one of the issues that has given rise to some anxiety in the course of the passage of the Bill is whether it is giving the Government an easy time and whether they have wriggled off the hook of their potential responsibility for corporate manslaughter by limiting the way in which the duty of care operates in clause four.

I will read the clause again, because it is important to have it in context:

“Any duty of care owed by a public authority in respect of a decision as to matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests) is not a ‘relevant duty of care’.”

At what point does a decision become a matter of public policy rather than a matter of, for instance, management in the allocation of resources? That is what we need to concentrate on.

I completely accept that if we start including public policy decisions within the scope of the Bill—although there are some purists who would like that to happen—it would make the management of government impossible. There are financial constraints on government which mean that Governments must sometimes make decisions that have a potential impact on people’s well-being. Obvious examples include, for example, the way that the National Institute for Health and Clinical Excellence decides to ration or allocate drugs such as anti-cancer drugs—an example that we have heard a great deal of in the last two or three weeks—or the availability of fire engines and fire appliances, and whether one can meet the settled criteria for getting to a fire on time. One can think of all sorts of other examples, and not only in the field of emergency services—I should make that clear, because they are covered by other aspects of the Bill.

There needs to be some understanding of where the dividing line lies in the activities of the public authority concerned. For example, if the Government decide that they must cut the budget of one of their organisations, many of which are listed in the schedule to the Bill, and one of the consequences is that some health and safety training previously thought to be appropriate does not take place and an accident happens on the premises, where does the fault lie? What happens if, for example, those who run the organisation concerned say, “This is all very well: you’re prosecuting us, but it was a decision taken ultimately by the Minister.”? That is one possibility. If we exclude the Minister, the decision could have been taken by officials very high in the Department.

The amendment aims at that precise issue. The reality is that Ministers do not take day-to-day decisions about running Departments. If they do, all that I can say is God help them if they have got themselves into that mess. Equally, one picks up anecdotal evidence—I am sure that every Committee member is aware of it—that decisions taken quite low down the chain, particularly within Government, often seem to be the result of some emergency or problem that has arisen and has led to permanent under-secretaries picking up the telephone and saying that something will be done in a particular way. If that is the case, is it a public policy decision or is it a managerial decision with a direct impact? That is the question for the Committee.

The amendment is probing, because I accept that when we get to the point of public policy, if we start to prosecute people for getting their policy wrong, the rule of the judges is truly upon us. I am not sure that that is a good idea. None the less, we need to know where the dividing line is.

Gerry Sutcliffe (Labour, Bradford South)

As the hon. Gentleman said, the amendment brings us to our first discussion on the important topic of exemptions, which I am sure we will debate fully as the Committee progresses. For the moment, I will confine myself to the specific details of the proposed amendment, in the expectation that we will discuss the wider context in due course.

Clause 4(1) deals with decisions of public policy taken by public authorities. Public authorities are defined by reference to the Human Rights Act 1998 and include Departments, local government bodies and other bodies whose functions are public, such as primary care trusts. The clause will exempt from the offence high-level decisions concerning 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. As those examples demonstrate, such decisions are not confined to Ministers, but might be made by a wide range of public authorities.

The amendment would have a very undesirable consequence. The courts have already recognised that such decisions 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 such activities. The purpose of the exemption is not to exclude activities that would otherwise be covered by the new offence, but to provide clarity about what is and is not covered.

The amendment would remove that clarity. If it were agreed to, the Bill would suggest that only ministerial decisions were exempt, although in reality a duty of care would not be owed in a much wider range of circumstances. The result would be that public authorities would not be clear about the application of the new offence in respect of public policy decisions. There would therefore be a risk of encouraging an overly defensive or cautious approach in those seeking to safeguard the public from risk or danger. We do not believe that that would be in the public interest.

The hon. Gentleman made reference to the management of resources; I must make it clear that the exemption is not about that. Once a public body has embarked on a particular activity, it must fully observe its safety responsibilities and cannot plead lack of resources as a defence. The exemption does not change that. Nor is it the case that the exemption prevents public authorities being accountable for their decisions. Public bodies often hold special authority or perform functions that the private sector does not or cannot do on its own account. Due to that and the fact that such bodies operate on behalf of the public, they are already subject to a strong and public framework of accountability, such as public inquiries and other independent investigations.

Clause 4(1) makes it clear that public bodies will not be liable for their decisions that are underpinned by considerations of public policy. The issue is not confined to ministerial decision making. I hope that, with that clarification, the hon. Gentleman will withdraw his probing amendment.

Dominic Grieve (Conservative, Beaconsfield)

Yes, I shall ask leave to withdraw my amendment, but I leave the Minister with one thought—he may want to write to me about it. I do not claim huge expertise in the field of judicial review, but it seems to me that the Minister is right to say, as a generality, that the courts have refused to interfere with public policy decisions. When he identified that as the dividing line, that had resonance for me and made sense.

I wonder whether the Government have thought about one issue. As the Minister knows, the concept of areas in which courts are prepared to interfere is flexible and can develop over time. For example, the Human Rights Act 1998—or rather the European convention on human rights, which the 1998 Act did no more than incorporate—provides for a right to life. One need only read academic treatises by academic lawyers nowadays to note that there is considerable speculation about the extent to which that right is starting to raise obligations on the state to maintain life, as opposed to imposing prohibitions on taking it except in certain circumstances. Those very decisions are often public policy issues, into which, as the Minister rightly said, the courts refuse to stray. However, I do not think that we can entirely rule out the notion that we might find them moving into such areas.

We are already on that cusp in relation to matters such as the withdrawal of treatment to people who are dying, even when the issue under consideration is not euthanasia but the point at which one need not strive officiously to keep alive. The tendency may be widened over time. If the courts start saying that, under the 1998 Act, judicial review might intrude into such areas, would it follow that such areas would be removed from the public policy sphere and that Government Departments or public authorities would be open to prosecution for corporate manslaughter?

The Government may have already carefully considered that point, but it would be useful to have a response as to the way in which they envisage the provision working before this Bill goes on the statute book. Would a court decision, so removed from the field of corporate manslaughter that it could look at a particular area of Government policy—such as in the operation of the European convention on human rights—have the immediacy of triggering, as a consequence, a duty under this Bill?

Gerry Sutcliffe (Labour, Bradford South)

If what I am about to say does not help the hon. Gentleman, I will do as he suggests and write to him with the detail. The Bill does not link the exemption to circumstances in which the civil law does not apply, but it recognises the same principle. The courts will determine the limits of the exemption in the light of our human rights obligations.

Dominic Grieve (Conservative, Beaconsfield)

That is helpful. If the Minister would like to amplify his remarks in a letter, that would also be helpful. On that note, I beg to ask leave to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 45, in page 3, line 26, leave out subsection (2).

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment No. 46, in page 3, leave out lines 33 to 37.

Dominic Grieve (Conservative, Beaconsfield)

There might be some repetition of the previous debate in our discussion of these amendments. Amendment No. 45 would delete the lead subsection—subsection (2)—of clause 4 and amendment No. 46 would delete the definitions of “exclusively public function”. It would drive a coach and horses through clause 4 and is intended to tease out from the Government what the consequence of that would be. We might have touched on that already but I do not need to amplify it further. If the Minister has any further comments on this probing amendment, I would be grateful to hear them.

Tony Lloyd (Labour, Manchester Central)

Given that the amendment is probing, I ask the Minister to address the following points. We are talking about the exercise of an exclusively public function and its exemption from the law—unless it falls within the categories set out in clause 3(1)(a) which refers to

“a duty owed to... employees”

and persons who are in quasi-employment positions, and in clause 3(1)(b), which refers to:

“a duty owed as occupier of premises;”

May I take it for granted that there is a precise analogy with health and safety legislation in which members of the public are protected, because that is a duty owed as an occupier of premises? The duty to the public in that provision is clear and is not excluded by the impact of clause 4(2). That must be the case, but I would be grateful if the Minister would again make it clear to the Committee that it is.

Gerry Sutcliffe (Labour, Bradford South)

I will try to help my hon. Friend the Member for Manchester, Central. If I do not, I am sure that he will return to the points that he has raised.

As the hon. Member for Beaconsfield said, we have touched upon this subject in previous debates, but I should deal with it in the context of the Government lifting Crown immunity. The new offence will apply to Crown bodies. Criminal accountability will extend to their management and organisation for the first time—a significant step. That is no small achievement and it shows that where private and public sector bodies are engaged in similar activities, there will be a level playing field under the new offence. That has been widely welcomed by industry and trade unions alike. However, it raises difficult questions about when Government and public bodies should be accountable in the criminal courts for the way in which they carry out their activities.

The exemption for an exclusively public function goes to the heart of the debate. It is important to recognise that the offence is rooted in the need for employers to provide safety in the workplace, to ensure that employees have safe systems at work and that work sites are safe places to be. The Bill applies widely to the responsibility that the Crown and other public sector bodies have as employer and occupier. The exemption expressly does not override those duties. The adequacy of the carrying out of those functions is therefore relevant.

In our view the purpose of the offence is not to establish new ways of holding the Government to account for the way in which they meet their public responsibilities. The exemption therefore deals with activities that fall within the Crown prerogative, or that are of the type necessitating state authority. We believe that those are intrinsically public functions, and their management and organisation will frequently be closely linked to questions of public policy, so that they are more appropriately subject to wider forms of accountability—public inquiries and independent investigations—than to the accountability that can be achieved under the criminal law.

The exemption covers activities carried out under the prerogative, including activities at the heart of state responsibility, such as Government provision of services in a civil emergency. It also extends to activities that by their nature require statutory authority. It does not include activities merely because they are carried out on a statutory basis, however; the activity’s nature must be such that it can be carried out only with state 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 to medical treatment that requires statutory powers, and private organisations can offer medical treatment independently. Examples of exclusively public functions are the licensing of drugs, the issuing of driving licences and the granting of planning permission. Exemption does not cover activities merely because a licence is required to perform those activities, however—[Interruption.]

Joe Benton (Labour, Bootle)

Order. I am sorry to interrupt the Minister but could someone establish what is going on outside the room? It sounds to me like a fire alarm. In the meantime, let us proceed and wait for news to be brought.

Gerry Sutcliffe (Labour, Bradford South)

Watching television in this country requires a licence, but that does not make it an exclusively public function. Only an activity that by its nature requires statutory authority is covered by the relevant limb of the exemption. The phrase “by its nature” is intended to focus the test on the core part of the activity—the public function—and the exemption does not extend to activities that are ancillary to that function. Keeping people in custody is intrinsically a public function, but secondary activities such as providing catering to prisoners or responding to their health care needs are not exclusively public functions and would therefore be within the scope of the offence whenever duties of care arose.

The exemption does not override duties of care owed by an employer or occupier. An authority that otherwise benefited from the exemption would still be under a duty to provide safe systems of work for its employees and to ensure that its premises were maintained in a safe condition. If the authority committed a gross breach of either duty, it would be liable to prosecution for corporate manslaughter. That is the overall picture.

Tony Lloyd (Labour, Manchester Central)

I suspect that I am being troubled by something that is not really an issue, but let me put to the Minister a point relating to the comparison with the Health and Safety at Work, etc. Act 1974.

It is clear that organisations owe a duty of care to their employees and, as the occupiers of premises, to the wider public who may enter the premises. They also owe a duty of care to the passing public in the operation of their working activities. On a narrow interpretation of the Bill, it seems that the duty of care is owed specifically to employees in some areas, and that there is a general duty of care as an occupier. Will the Minister clarify, possibly at a later stage, by analogy with the 1974 Act that the public are specifically covered if they are on premises in the vicinity of the operation of work?

Gerry Sutcliffe (Labour, Bradford South)

I want to reassure my hon. Friend, but it would probably be better to write to the Committee; if we need to return to the subject we can easily do so. I am told that the public and premises are covered by the occupiers’ duty, but my hon. Friend wants to be reassured, so I shall set it out in letter form. Committee members will thus be able work out whether they want to pursue the matter further.

As I tried say in a detailed response to the hon. Member for Beaconsfield, the courts have shied away from imposing duties of care in relation to the exercise of many activities that are exclusively public functions. Amendments Nos. 45 and 46 would result in a lack of clarity about whether such activities were covered and whether they should be considered by the courts. That in itself may leave the bodies carrying out those functions uncertain about whether they were covered, which could encourage risk-averse behaviour. We should not take that risk lightly: public authorities often find themselves in a difficult position when seeking to protect others from harm. We would not want the fine balance needed in decisions such as taking children into care to be swayed by fear of prosecution. That would not be good for children or for families.

I hope that I have reassured the Committee about public functions. I know that we will want to discuss some aspects further, but I hope that the hon. Member for Beaconsfield is prepared to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister, but he may have detected from the brief way in which I opened the debate that, in all honesty, I find it a difficult matter. Above all, I want clarity as to what the Government intend, and the Minister has been helpful in providing that. However, some difficult issues remain.

The Minister cited the example of children being taken into care. It is something that I know of from personal experience. I sometimes have serious anxieties about the manner in which children are taken into care by local authorities, and the treatment that they subsequently get once they are in care. Indeed, children are sometimes killed when in care, and it is not unusual for public authorities to be criticised for being negligent in allowing that to happen.

In the context of the Bill, that raises some interesting questions, as the Minister will appreciate. He is saying that although there might be a possibility of prosecuting an individual social worker for manslaughter because of gross negligence, there would be no possibility of prosecuting a local authority for those of its public policy decisions that might arguably have brought about the situation. That may be so, notwithstanding the fact that there might be scope for the public authority to be sued for negligence at civil law, even though no criminal prosecution would occur. That may be another key area upon which the Committee will want to reflect.

I shall withdraw the amendment, but I must tell the Minister that this is one of only a couple of areas in which, as a result of his comments, I intend to do a lot more thinking, particularly on whether Parliament might wish to impose higher duties or at least the possibility of criminal sanctions for failure. However, I have to accept what he said—that once we move down that road, the shift to risk-averse decision taking in areas that are inherently difficult could become very real.

I certainly do not wish to put an excessive burden on groups of individuals who on the whole will be trying to make decisions for the best in areas where one often cannot easily come to the right decision. With that in mind, I shall go away and think about the Minister’s answers; and we can return to the subject on Report if necessary. I beg to ask leave to withdraw the amendment.

Clause 5

Jo Swinson (Liberal Democrat, East Dunbartonshire)

I beg to move amendment No. 126, in page 4, line 2, leave out ‘in preparation for, or’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment No. 127, in clause 6, page 4, line 27, eave out ‘in preparation for, or’.

Jo Swinson (Liberal Democrat, East Dunbartonshire)

It is great to see you back in the Chair, Mr. Benton. I am pleased to continue the discussion on exemptions. Amendment No. 126 deals with clause 5 and the military, and amendment No. 127 deals with clause 6 on policing and law enforcement.

It is uncontroversial to state that some exemptions from the Bill’s scope will be necessary, particularly in relation to the military and policing. In training of a hazardous nature and dealing with terrorism, problems with public disorder and civil unrest, there will clearly be risks to members and employees of our armed forces and policing authorities. Those risks will be unpredictable and it is not possible to foresee all eventualities. Some exemptions are needed so that those people can carry out their general duties. However, my problem with clauses 5 and 6 is to do with whether routine training will be exempted.

Amendments Nos. 126 and 127 serve similar purposes in relation to the military and policing respectively and would remove the words “in preparation for, or” from clauses 5(1)(b) and 6(1)(b). We want that paragraph in both clauses to say, “activities carried on directly in support of such operations”, so it is clear that routine training would not be covered and would thereby exempted from the provisions. Training environments need to be created so that those serving on the front line for us can experience simulations of the real risks that they may face when doing their job. However, training exercises must be sufficiently well planned so that they do not lead to the tragic consequence of death.

Michael Fabricant (Conservative, Lichfield)

My hon. Friend the Member for Beaconsfield has spoken about his experience in the court room. I can talk about my experience having a petrol bomb thrown at me during training for riot police officers. If I were a riot police officer going into such a situation, I should not like to be on the streets having a petrol bomb thrown at me if I had not encountered it under controlled conditions. If that were stopped as a consequence of the hon. Lady’s amendment, it would weaken police forces’ ability to control difficult situations in reality.

Jo Swinson (Liberal Democrat, East Dunbartonshire)

In that case I must clarify my remarks. Clearly, it is not pleasant for people to have petrol bombs thrown at them wherever they are, but if it is going to happen they would prefer that it had occurred previously in controlled circumstances. However, in a training scenario the proper precautions must be taken, including protective clothing being worn, and all the different consequences must be thought about, including what could go wrong and what might cause death or injury. If death occurs as a consequence of badly planned training, we need such cases to be examined by the courts and those responsible to be held to account.

The Joint Committee agreed with us, stating:

“We are concerned that ‘preparation’ for combat operations would encompass routine training and believe that such a wide exemption cannot be justified.”

I seek some reassurance from the Minister that routine training will not be exempt and that the military and the police should still have to demonstrate that they have properly planned and thought through their training. In any such circumstances, things can still go wrong, but if the organisations had thought it all through a court would find that that had been done, whereas if training had not been well thought out and well planned, it would be relevant to the court’s decision.

Gerry Sutcliffe (Labour, Bradford South)

As the hon. Lady said, we move to the important part of the Bill. Clauses 5 to 8 set out a number of specific public functions that will not be covered by the new offence. I will pay careful attention to the concerns that have been expressed about the exemptions. We have sought to make the exemptions as tight as possible, but inevitably there are questions about their proper extent. As the detail of the clauses demonstrates, we have sought to define carefully where exemptions should apply.

Amendments Nos. 126 and 127 deal with an important part of the exemptions extended to the armed forces in clause 5 and to the police in clause 6(1). Those exemptions apply to a narrow band of operational activity, but extend across the range of relevant duties of care in clause 3, including the employer’s duty of care to his employees. That contrasts with, for example, exemptions covering the emergency services and, in the majority of circumstances, police forces, where the exemptions focus on the impacts of operational activities on others, but maintain liability for ensuring safe systems of work for employees.

I should focus on the employer aspect of the exemption. If public policy warrants an exemption in respect of the employer’s duty, it is clear that the duties owed to others would similarly fall to be exempt. As the hon. Member for East Dunbartonshire (Jo Swinson) said, the armed forces are in a unique position by the nature of their activities, often working in extremely difficult and volatile situations, in which military objectives are absolutely imperative. That raises difficult questions about the extent to which the court should later scrutinise decisions about how those objectives were secured and whether the systems that were in place for carrying out those activities were adequate. Those considerations have been recognised in the civil courts. It is now a firmly established part of civil law that a combat immunity extends to the armed forces, for the reasons that the hon. Lady described. I welcome the recognition in the amendment that in principle the armed forces should be exempt in certain circumstances.

One consequence of that is that the armed forces will not owe a duty of care where the combat immunity applies, whether or not an exemption is granted in the Bill. It is important to include that in the Bill, for the sake of clarity for the armed forces and to remove the possibility of speculative and potentially damaging prosecutions. Doing so also means that, for combat immunity, we are not exempting activities that would otherwise be covered. An exemption is based on the civil law concept of combat immunity and focuses on difficult operational conditions in combating terrorism and potentially violent peacekeeping operations. However, we do not seek to exempt the military generally and much of the day-to-day activities of the armed forces, on bases and patrolling the seas, will be covered. The hon. Lady’s point about training is within that position.

We have carefully considered the proposals with service colleagues. I am satisfied that we have extended the right aspects of combat immunity to the new offence. I hope that the hon. Lady is satisfied that the point that she raised about normal, regular and well-planned training has been addressed.

To turn for a moment to the police, the exemption in clause 6 mirrors that which I have described for the armed forces. Where the police and armed forces overlap in their activities to combat terrorism and serious public disorder—at times even working together—it would be illogical for the police to have a different liability for the offence. I understand hon. Members’ concern about the exemption being too wide, but I believe that it is necessary.

Operations to tackle terrorism, civil unrest and serious disorder will place significant pressures on the police and may well be carried out in haste in emergency situations. The police and other law enforcers will not necessarily have the luxury of time or resources to ensure that all their obligations under health and safety have been met before attending to the situation. It would be wrong for one set of priorities to be given undue weight. We would not want the police to be slowed down in their response by undue concerns of the threat of manslaughter charges. That could be detrimental to the protection of the public at large from the serious threats.

There will inevitably be questions about exactly what is covered by the term “preparatory”. We do not think that it is desirable to try to spell out a list of activities in the Bill—an impossible task—but that does not leave the scope of the exemption at large. Some concern has been expressed that “preparation for” could be interpreted very widely by the courts to cover, as the hon. Lady mentioned, training or routine maintenance of riot control equipment and so on. I hope that I have shown her that that is not the intention. We believe that the drafting is sufficiently tight. Specific mention is made of training in subsection (1)(c) of clauses 5 and 6, which deal with hazardous training.

Michael Fabricant (Conservative, Lichfield)

To return to the police, they deal with certain equipment, which the Minister mentioned. We know from today’s tables that some police forces are better than others—it is worth noting that Staffordshire came top of the poll. What if a police force had a fairly slapdash way of maintaining equipment and a gas canister exploded? Surely the police force itself should bear some responsibility.

Gerry Sutcliffe (Labour, Bradford South)

The hon. Gentleman makes that point rightly. I would say that, if there was a reasonable prospect of the event being foreseen in the general application of the force’s responsibilities, the jury would have the opportunity to take that into consideration.

We have tried to take a significant step forward in taking away Crown immunity. We have tried to ensure that the exemptions are targeted and appropriate in the conditions that I have outlined. I hope that, in those circumstances, the hon. Lady feels reassured and will withdraw the amendment.

Joe Benton (Labour, Bootle)

Before I call Jo Swinson, I wish to notify the Committee, just to put everyone’s mind at ease, that I have been informed that there is a fault with the fire alarm on the first floor in the area of the Members’ Tea Room, which is being looked at now.

Jo Swinson (Liberal Democrat, East Dunbartonshire)

I welcome the reassurance that the Minister has given, the fact that it has been put on the record that routine training and the day-to-day activities of the military and the police will not be exempted by this measure, and the maintenance point raised by the hon. Member for Lichfield (Michael Fabricant). I therefore beg to ask leave to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 47, in page 4, line 4, leave out paragraph (c).

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment No. 48, in page 4, line 13, leave out subsection (3).

Dominic Grieve (Conservative, Beaconsfield)

Amendment No. 47 would leave out clause 5(1)(c), which is the paragraph on

“training of a hazardous nature, or training carried out in a hazardous way”.

The second amendment would leave out clause 5(3), relating to the special forces.

I shall deal first with paragraph (c). The Minister touched on this issue in his earlier response, which is why I did not intervene in that debate. I am referring to training of a hazardous nature, if it is accepted that it is necessary for the carrying out of military operations. Although I can see the attraction of excluding it from the possibility of a corporate manslaughter charge being brought, I want to raise the question of whether it is necessary to do so as distinct from

“activities carried on in preparation for, or directly in support of,”

military operations, which is clearly at a time when actual imperatives are taking place relating to active service.

My reason for saying that is that I question whether a prosecution could be successfully brought, provided that it were open to the Ministry of Defence to show that a proper assessment of the hazards had been made before the hazardous training took place. Although there was inherent hazard, as long as that inherent hazard had been provided for in so far as that was possible and things had been considered beforehand, we would be talking about a complete exoneration if something then went wrong.

I do not think that the Minister, in his answer to the earlier debate, quite dealt with the issue. I accept that ultimately it is a public policy decision, but why should people, simply because they decided to carry out hazardous training, be protected from a prosecution brought for gross negligence corporate manslaughter because they were in fact grossly negligent in the way in which they carried it out?

Let me give the Minister an example. There is a failure by the MOD to carry out in one location proper checks to parachutes after packing, as a result of which some parachutes fail to open and servicemen are killed. In those circumstances, if what is shown is a command structure failure in the armed forces without individual culpability, why should the Ministry of Defence escape corporate manslaughter prosecution when its systems were apparently at fault in allowing it to happen? What about abseiling off rocks when equipment has not been properly checked and the ropes fail? Those are just examples of the sort of hazardous training that the military must undergo frequently.

What is the public policy reason for exempting the military completely? I think that it was argued that by its very nature, hazardous training involves hazards, and that therefore it is wrong for the military and the Ministry of Defence to be held responsible under corporate manslaughter if somebody gets killed in the course of that sort of training. But it seems to me that that misses the point. Inherent risk can never be eliminated, but nor can anybody be prosecuted for it. The only circumstances in which I suppose that clash could happen are those in which somebody argued that a training was so hazardous that it should not be carried out at all and the Ministry said, “Actually, for public policy reasons, we had to carry it out, however hazardous it might be.”

There I have sympathy with the Minister. I cannot help wondering whether it would not be possible to craft an amendment that protected the Ministry of Defence from precisely that sort of assertion, but the unintended—or perhaps intended— consequence of the framing of the provisions on training is such that even hazardous treatment incompetently and negligently organised and conducted is completely protected from any criminal sanction. That bothers me, because I wonder on a public policy basis whether that is the appropriate approach. I accept that there are difficulties.

Jeremy Wright (Conservative, Rugby and Kenilworth)

On my hon. Friend’s example on which he said he had sympathy with the Minister, that of hazardous training that could be carried out in only one particular way, does he agree, looking back at clause 1(3)(c), that when the jury came to consider that matter, they would have to be persuaded that there was a gross breach, on the basis that the breach fell

“far below what can reasonably be expected of the organisation in the circumstances”?

Would not what he describes be perfectly properly considered as part of the circumstances of the alleged breach, leaving the jury to conclude, quite probably, that there was no gross breach?

Dominic Grieve (Conservative, Beaconsfield)

I think that my hon. Friend is right. Of course, the Government could argue that they are entitled to protect the Ministry from even the prospect of prosecution and all the anxieties that go with it if they take the decision that a particular future military operation requires really hazardous training. We must accept the fact that in the armed forces, a great deal of hazardous training routinely takes place. Practising escapes from submerged submarines or training in the tower at Portsmouth are rather hazardous activities. I can think of many other activities that are clearly inherently hazardous, and I want to see them protected. My concern is that the protection extends much further than that to protecting the Ministry of Defence in a corporate sense from prosecution for what many would regard as a totally botched training operation.

I am trying to think of examples from the recent past. As I recollect, one case involved the aftermath of training in the escape tower at Portsmouth. On coming out, service personnel were required to run in their wetsuits. As a result of that, I seem to remember, one serviceman collapsed and died from heat stress. I think that internal inquiries took place afterwards, and changes were subsequently made to how training was carried out. I suggest to the Minister that that is an example of something that might have had a legitimate purpose but was not fully thought through, so one asks the question: is it right that we should be protecting the Ministry of Defence from prosecution?

One of the attractive features of the Bill is that precisely because the Government have taken the decision not to target individuals, we can be slightly more relaxed about the problems that it may pose to organisations. Clearly, organisations cannot serve sentences of imprisonment; they can only be fined and most cases would involve raps over the knuckles and embarrassment, which is what the Minister intends. We should not pitch the legislation in a way that leads to safety culture being put so high that the ordinary activities of the organisation are seriously inhibited. I do not want to see that happen. In the context of the military, I fully accept that we need to be careful because the truth is that hazardous training is hazardous, but neither should we go so far that we are in fact providing a complete protection against charges of serious negligence. It is all the more ironic because in different contexts there may be other laws that will still bite on organisations, such as the Health and Safety at Work, etc. Act, although of course in that context there are also exemptions for this particular setting.

I have a concern and wonder whether there is a better way of drafting the Bill—one which makes it impossible to question the nature of the hazardous activity, but possible to question the manner in which it was executed. That may be too difficult to draft, but the Committee and the Minister may want to consider it.

The second amendment in the group is, in a funny way, more straightforward. I am at a loss to understand why subsection (3) is in the Bill. It appears to give some special protection to the Ministry of Defence in respect of activities carried out by members of the special forces. I invite the Minister to reread subsections (1) and (2) in the quiet of the evening. They are so wide in scope that I am unable to think of a special forces activity that does not fall within the protection afforded by those two subsections. If that is the case, why is subsection (3) there? Is there something that I have completely failed to understand about the activities of the special forces that requires some extra level of protection? My comments might not be correct if we start tinkering around with hazardous training as an example, but assuming for one moment that the entirety of the rest of this clause stays intact, why are activities carried out by members of the special forces not covered by a relevant duty of care?

As the subsection is drafted, it seems that if a member of the special forces leaves his quarters at the Hereford base, goes to the top of a staircase and as he goes down, one of the treads gives way and he falls to the ground, killing himself, there is no redress against the MOD whatsoever. I cannot believe that that is what is actually intended.

Can the Minister please explain what aspect of special forces activity is not covered by the blanket protection in respect of preparation for and in support of operations and training of a hazardous nature? I know that the special forces are used for all sorts of things, some of which would be difficult to discuss in Committee, but trying to apply my mind as best I can, I find it difficult to see that those activities will not be covered by subsection (1)(a),(b) and (c).

I appreciate that there may be a problem and that it may present the Minister with a difficulty. He may wish to speak to me privately at the bottom of the staircase. However, in pure logic, something is a little odd because all the skulduggery in which the special forces are supposed to become involved seems to be covered by subsection (1)(a), (b) and (c). What is it that requires special attention? Is it the case that, as usual, someone has sent a memo round to the Ministry of Defence and received one back saying, “Above all, the special forces mustn’t be covered!” so such matters have just been slotted into subsection (3) without any more thought? As drafted, the provision is bizarre and the Minister will have to rise to the occasion and, without betraying the national interests of the state, explain why it is there.

James Duddridge (Conservative, Rochford and Southend East)

I should like the Minister to stress test a particular case study and say whether clause 5 is sufficiently robust. He may know that half of my constituency is owned by the Ministry of Defence. However, the land that the Government privatised is leased to QinetiQ and, on that land, a number of military activities take place in respect of training and preparation for war. I believe that it would be an appropriate site for special forces to test operations prior to going into any situation. Occasionally, however, the military works alongside QinetiQ, which is a plc. I believe that on that site, which is owned by the MOD, and on more than 20 to 25 sites throughout the country QinetiQ is responsible for health and safety. I should like the Minister to deal with my concern that there will be resistance from that plc to allowing military operations to continue on the sites because the military would be immune from a corporate manslaughter prosecution, but the public company, QinetiQ, may indeed be subject to prosecution.

Gerry Sutcliffe (Labour, Bradford South)

I fear that I may not answer the hon. Member for Beaconsfield in the way that he would consider appropriate. Clearly, there are issues in connection with the intelligence services that prevent me from going into the detail that he requires.

As the hon. Gentleman described, amendment No. 47 would remove the exemption in clause 5 for hazardous training. He accepts that it is important that our service personnel are properly prepared for the difficult and dangerous circumstances that they will face, either on the front line in combat or when undertaking peace-keeping missions in potentially hostile environments. The armed forces owe their personnel a duty of care to ensure that they are properly trained in that respect. Realistic training ensures both that soldiers can deal with difficult circumstances, reducing risks of death and injury, and that the effectiveness of troops in those circumstances is maintained.

I should emphasise that in carrying out all training, the armed forces are committed to the highest standards of safety performance and take their responsibilities to personnel very seriously—a point that has been accepted by the hon. Gentleman. Instructors are exceptionally well trained and competent, and best practice processes are always strived for. However, the best means of training for hazardous situations is to make that training as realistic as possible so that personnel are readily able to translate those pressures, experience and requirements to their operational work. For the armed forces, that will inevitably mean that elements of training are clearly hazardous.

We have considered the provisions carefully with colleagues in the Ministry of Defence. I will say that again, and the hon. Gentleman will understand why: we have carefully considered the provisions with colleagues in the Ministry of Defence. There is significant concern that bringing hazardous training within the ambit of the offence would transfer risk from the training scenario to the battlefield. Risks in training would be reduced, but servicemen would be exposed to a greater level of risk when conducting operations because they were less well prepared.

That does not translate into a need to exclude all training from the scope of the offence. As I tried to explain to the hon. Member for East Dunbartonshire, many circumstances that fall outside the scope of the criminal law because of Crown immunity will be covered in future. It might be helpful to illustrate that with some examples.

The Ministry of Defence has received a number of Crown censures for health and safety failings, some of which have involved fatalities, in the way in which training has been carried out. For example, apprentice tradesman Kevin Alan Sharman drowned in a cave in Wales while undergoing adventurous training at Sennybridge. An investigation established that risks had not been properly controlled. The Ministry of Defence also received a Crown censure about a failure to ensure the health and safety of a Royal Marine during recruit training at Woodbury Common in Devon. Furthermore, arrangements for monitoring and reviewing preventive measures were criticised in a case involving the accidental shooting of a soldier by a gun used in an improvised firing position. None of those cases would be covered by the exemption that we are discussing.

I hope that the Committee is assured that we have taken a careful approach to the issue, not sought a blanket exemption. There is a requirement for some hazardous training, or training done in a hazardous fashion. We could further mitigate the risks involved in that, but doing so would undermine the very objective of the training in the first place: to prepare troops for dangerous and risky situations. Examples include refuelling planes mid-air or replenishing ships at sea. In the normal course of events, risks could be minimised by a plane landing and being refuelled or ships docking and taking supplies on board. However, the armed forces need to practise those activities as they would be undertaken during combat operations; of necessity, that involves accepting greater risks. However, risks that are not part of the training will not be taken.

None of that is to say that the armed forces will in future take a less responsible approach to the conduct of such training. We do not want the effectiveness of training to be undermined, with consequent risks to the safety or capability of troops in operations, because commanders feel constrained by the application of the offence created in the Bill.

Amendment No. 48 would remove the exemption for the special forces. Operational activities and hazardous training for all armed forces are excluded under clause 5 in any event. However, a wider exemption is appropriate for the special forces because such units operate, train, liaise with and support the security and intelligence services. Those services are not covered by the new offence because of the inevitable difficulties that would arise in any investigation and prosecution. In particular, there would be a risk of compromising the secrecy that attaches to their work in respect of personnel, operations and operational techniques. Owing to the risks to national security, it has been widely accepted, including in pre-legislative scrutiny, that the new offence should not apply to the security and intelligence agencies. Similar considerations arise in respect of the special forces.

Dominic Grieve (Conservative, Beaconsfield)

I am not surprised to hear the Minister’s response, but will he confirm that excluding the special forces would have an interesting consequence? Suppose, for instance, that banal and routine failures in maintaining property at a special forces base led to the death of a serviceman as he got out of bed in the morning. His death would be unrelated to training, but might be the consequence of gross negligence by the Ministry of Defence property services department. However, he would not be covered. In effect, anything unrelated to his role that happened to a member of the special forces at the hands of the Ministry of Defence could not result in the prosecution of the Ministry.

Gerry Sutcliffe (Labour, Bradford South)

I fear that the hon. Gentleman may be right, so I shall look further at the amendment, as he has asked me to. However, he understands the general principle of why the special forces are treated in the same way as the security and intelligence agencies. With the caveat that I shall reflect on the example that he has given, I ask the hon. Gentleman to accept the spirit of why the special forces are treated as they are. I hope that he will withdraw his amendment. I shall come back to him about the scenario that he raises. I will talk to him at the bottom of the stairs about a number of issues that I have not been able to explain to him in Committee. He will know the reason for that.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his response. I shall deal with the amendments separately. On amendment No. 47, the Minister has gone a long way towards persuading me that it is probably impractical to include training of a hazardous nature in the scope of the Bill. In some instances, all that remains will be Crown censure under the 1974 Act. That will not be as a result of the provisions of the Act, because the ministry and military are exempt, but, in effect, there is a remedy, albeit one that does not lead to prosecution.

As far as amendment No. 48 is concerned, I hope that the Minister has got my point. He may be right that there is absolutely no way to put together a package that provides any sort of protection to members of the special forces. I think he can see the logical outcome of the extraordinary blanket exemption, which would also apply to the intelligence services. Presumably, if someone were to fall down the staircase at the headquarters of the Secret Intelligence Service or the Security Service, there would be no redress through prosecution, however culpable the Government’s property services department might be. I can see that the prurience of the press might be entertained by the facts that would emerge in a trial, such as the extent to which a building might be in a ramshackle condition or something that might have been done that led to a failure, but it is slightly unfortunate that individuals—or rather their relatives, as the individuals in question will be dead—should be left so singularly without redress for what falls so far outside the ordinary scope of secret activity.

The Minister might be right that there is no way to draft an appropriate provision, but I slightly regret that. I would have thought that there must be some way of enabling such matters to be covered while protecting special forces or the intelligence services from scrutiny in the fields of their activities. However, I shall go away and reflect on the matter, and I beg to ask leave to withdraw the amendment.