Corporate Manslaughter and Corporate Homicide Bill

Public Bill Committee, 26 October 2006.

Standing Committee B

Clause 6

Gerry Sutcliffe (Labour, Bradford South)

May I say good morning to you, Mr. Benton, and to the Committee as we continue our deliberations?

I beg to move amendment No. 112, in page 4, line 24, leave out ‘police force or other’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss Government amendments Nos. 113 to 118.

Gerry Sutcliffe (Labour, Bradford South)

Clause 6 deals with how the offence will apply to the activities of police forces and other public authorities that have law enforcement functions. I see that amendments have been tabled on the detail of what activities should be exempted; we will discuss those a little later. First, however, I turn to those to whom the exemptions apply.

Although clause 6 is aimed primarily at the police, other public authorities can be engaged in the same or similar activities, so we intend to extend the exemption to them—and to an extent it already does. However, we are not satisfied that the clause deals adequately with the full range of public authorities engaged in law enforcement. The amendments are intended to ensure that when public authorities other than the police deal with terrorism, civil unrest or serious public disorder, they too will be exempted from the offence.

The exemption as it stands, and as we propose amending it, does not extend to public authorities that are involved in serious disturbances but are not responsible for countering them, nor for training related to their roles. One example is ambulance staff, who may be called upon to provide medical treatment to those injured in a riot but will not be responsible for tackling the riot itself. The exemption is specifically in connection with terrorism, civil unrest and serious public disorder, and training to improve the public authorities’ effectiveness when dealing with such circumstances. It deals with a limited range of public authorities and a limited range of training. We are satisfied that that extends beyond the police.

What we have in mind, in particular, is prison officers who come under attack during riots. Prison officers can find themselves in the same sort of situations as police officers, and we do not see the logic in treating those activities differently. In order to assure Committee members that the amendments are necessary, I shall outline the type of hazardous training that prison officers undergo. Like the police, prison officers undergo full riot training, which includes dealing with petrol bombs—a point raised during our previous deliberations. Much of that training focuses on ensuring staff and aggressor safety during incidents, but it necessarily includes real experiences of danger.

Similarly, amendments Nos. 116 to 118 are about ensuring equitable treatment for all police and law enforcement activities, whether carried out by the police forces listed in clause 13 or by other public authorities with law enforcement roles. In particular, we want to ensure that the operational activities of police working in harbour authorities such as at ports will be exempted. That has always been our intention, but when we discussed the matter with colleagues in the Department for Transport we found a potential technical deficiency in clause 6 in that respect. It is dealt with in amendments Nos. 116 to 118.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for explaining the scope of the amendments. I have two concerns. The first is that he wants to extend a particular sort of training to the Prison Service. Is the drafting such that the Prison Service will be the only organisation caught by it? It seems to me that the wording has the potential to extend much further than that.

I realise that exhaustive lists can sometimes be a risk, because civil servants cannot always identify every public authority that might be covered, but my feeling is that the provision goes much wider than the Prison Service. On the face of it, any organisation involved, even peripherally, in operations dealing with terrorism, civil unrest and serious public disorder would be caught. Perhaps they should be covered, but unless the Committee has a pretty clear view of what we are talking about, there is a slight risk of our letting through something much wider in scope than we realise.

Michael Fabricant (Conservative, Lichfield)

Last time we met my hon. Friend talked about the possibility of an SAS officer getting out of bed to go to training but then falling down the stairs because there was something wrong with the construction of the building. Would not a local government officer doing civil defence training, for instance, also be included in the ambit of the amendment? If there was an injury during the training itself, that would be fair enough. However, if the officer was put up in a hotel that was owned by a local authority that had not shown a duty of care in properly maintaining the stairs or a light fitting and the chap was then electrocuted, is there not a possibility that that authority would be exempt?

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend makes an important point. That is the sort of thing that we need to tease out in Committee, so that we can be satisfied that we know what the scope will be.

It would be helpful if the Minister could explain a slightly more general point, which I suppose applies to the armed forces as well, but particularly to policing and law enforcement, emergency services and children protection, which are dealt with by clauses 6 to 8. Those clauses are not stand-alone provisions because, as I understand it, they will have to be read in conjunction with the existing exemption that we are providing for in clause 4(2), which says:

“Any duty of care owed in respect of things done in the exercise of an exclusively public function is not a “relevant duty of care” unless it falls within section 3(1)(a) or (b).”

All the bodies in question appear, potentially, to be public authorities anyway, so they are already protected under clause 4(2), which is a substantial fetter on the “relevant duty of care” in clause 3. The Government are adding yet a further restriction on prosecuting the military, police authorities, emergency services or local authorities under child protection law.

Unless I have misunderstood the position, those further restrictions remove policing and law enforcement entirely from the protection that would otherwise be provided by the framework of the Bill, by exempting

“operations within subsection (2)...activities carried on in preparation for...such operations”

and

“ training of a hazardous nature...which...needs to be carried out”

for those operations.

I am sure that the Minister would be the first to admit that those restrictions make substantial inroads into the framework of the Bill. They are a double whammy—not only do police authorities have public authority protection, but they have further protection. As we know, particular concerns have been expressed that the Bill would already remove from the Prison Service—which is not specifically covered, except in clause 4(2)—any possible liability for corporate manslaughter in the context of a death in a cell during the exercise of public duties. Why does the protection afforded to the Prison Service under clause 4, which is already extensive, need to be reinforced under clause 6? Perhaps I am wrong about this, but I would have imagined that any activity taking place within a prison

“in the exercise of an exclusively public function”

would already be covered.

I hope that the Minister has got my point, and I am sorry if I have laboured it a bit. I should have thought that suppressing a riot in a prison would be part of the exclusively public functions of the Prison Service, but if I am wrong about that, doubtless somebody can explain it to me, so I should be grateful if the Minister could amplify his remarks.

Jo Swinson (Liberal Democrat, East Dunbartonshire)

I welcome the fact that the Minister wrote to all members of the Committee to explain the reasons for tabling the Government’s amendments. On reading the letter again, I picked up on the fact that the amendments address two minor issues. The technical provisions on harbour authorities are not controversial, but it seems to me that the amendments do not make merely a minor change to the legislation. In fact, they seem to create a wide definition of exempted categories—any public authority involved in “policing” or other “law-enforcement activities”. That net could be cast very widely indeed, and local councils could well be included. In fact, it might not always be that simple to draw the line.

In moving the amendments, the Minister said that they applied mainly to the Prison Service, as the hon. Member for Beaconsfield (Mr. Grieve) observed. However, if they are meant to cover the Prison Service only, why cannot the service be named? Many other organisations and departments are named in the Bill, so the amendments are clearly designed to catch much more. We would all welcome clarification on whether the provisions will apply to authorities other than the Prison Service, especially as that latter organisation is probably the least controversial.

Tony Lloyd (Labour, Manchester Central)

There is genuine concern, as I am sure my hon. Friend realises, that the clause as amended would be very open; the definition of “public authority” would become enormously wide. Will he undertake to have a careful look to see whether the width of the clause as amended is what he wants, or whether there might be better ways of doing it—perhaps by being specific about the public authorities that he wants caught within the ambit of the Bill?

The Committee must be satisfied that we do not leave the matter so open that we come to regret the fact that we unintentionally allowed people to escape the ambit of corporate manslaughter in the public domain; frankly, none of us could conceive that to be the case. I hope that my hon. Friend will take on board the points that have been raised this morning.

James Brokenshire (Conservative, Hornchurch)

I seek further clarification on the language of clause 6 as it will be amended. In particular, the definition seems sufficiently wide to capture people and organisations associated only indirectly with the preparation of civil contingency-type matters. For example, in an emergency local authority officers might be actively engaged in gold command and co-ordinating what is happening. They may be fulfilling those duties from their own offices or from other command offices associated with the management of the particular incident. The executive directors of health authorities, too, may be seeking to control the area of operations.

The phrasing would appear to extend the provision to all such persons; it may be the intention to capture all officers and persons associated with the management of an operation. Although they may be not directly concerned—in other words, not specifically on the ground—they would be involved in

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

In other words, they would be involved in directing the operation or acting in response to the activities that are taking place.

Confusion has arisen as to whether that is the intention. If it is, the Committee needs to know. If not, the language needs to be refined in order to narrow its scope. We need to make it clear that, in those circumstances, officers fulfilling other duties who would appear to be caught within the ambit of the provision are not so caught. I look forward to hearing whether I am wrong in my assumption.

Gerry Sutcliffe (Labour, Bradford South)

Committee members are suspicious and concerned this morning about what the Government intend; I thought that we were making our objectives clear. I am grateful to the hon. Member for East Dunbartonshire (Jo Swinson) for thanking me for writing to the Committee about the details of the Government amendments. I am delighted that she is happy on the harbour ports issue. It is not our intention to confuse, mislead or widen the exemptions too far. We thought that there was consistency in our approach. The scrutiny Committee had expressed concern about a lack of clarity in the Bill, and we wanted to be clear about who we were including and excluding.

The hon. Member for Beaconsfield asked whether the measure could apply in theory to organisations other than the Prison Service or whether it applied to the Prison Service only. In theory, perhaps it does not and it could be widened out, but the key to all this is the issue of countering serious disorder and the duties in respect of that. I cannot think of many organisations that would be in a similar position to that of the Prison Service. We can think of what we said earlier about the police and the armed forces. I suppose that the immigration authorities in immigration centres could be included, because there have been disturbances and problems there.

We think that there is consistency in what weare trying to achieve. The words “dealing with” in subsection (2) restrict the clause. It is not enough for a public authority to have some tangential contactwith unrest and disorder; it must be involved in countering it.

Michael Fabricant (Conservative, Lichfield)

What the Minister is saying is helpful, but what about the example that I and my hon. Friend the Member for Beaconsfield gave last week or earlier this week? We spoke about a tangential situation. An exercise may be going on, but the harm or death occurs not in the exercise, but at the accommodation or in a route through the area where there has not been an adequate duty of care to ensure that premises or vehicles transporting people have been maintained properly.

Gerry Sutcliffe (Labour, Bradford South)

I am grateful to the hon. Gentleman for raising that point. I acknowledged the examples that the hon. Member for Beaconsfield gave and I undertook to have a look at the issue to see what, if anything, could be done if it was obvious that gross negligence had occurred, yet the exemption was in place. I am alive to that concern. I will see what we can do and come back to the Committee or address it on Report if there is an opportunity to do so.

We are trying to be consistent in our approach. We thought that the Prison Service represented an extension to what we were trying to achieve. We do not want to widen the measure too far. The points about hazardous training have been well made with regard to what we want to achieve. I hope that the Committee feels reassured by my words and I ask it to support the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 139, in page 4, line 29, leave out paragraph (c).

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 128, in page 4, line 37, leave out subsection (3).

No. 129, in page 4, line 41, leave out from beginning to end of line 4 on page 5.

Dominic Grieve (Conservative, Beaconsfield)

This, too, is a probing amendment, along the lines of that tabled in respect of the military. It is in the nature of the armed forces that one of their primary tasks, although the Government are unlikely to admit this publicly, is killing people, because the armed forces use force to achieve objectives. Therefore, the training carries inherent hazards. We are now dealing with the police and law enforcement. Clause 6 removes any duty of care owed by a police force, first for operations in respect of terrorism, civil unrest or serious public disorder. As I said earlier, being public authorities, they have a double protection, because clause 4 removes any duty to other people and clause 6 removes any duty to their employees or in respect of premises. This is a substantial area of protection.

I still have an anxiety—perhaps I registered it on Tuesday in respect of the armed forces—about why the Government feel, when it comes to training of a hazardous nature, that in order to maintain the effectiveness of the police in operations in relation to terrorism, civil unrest or serious public disorder, the duty of care that any other corporate organisation in this country will be subject to should be removed.

The Minister has said on a number of occasions in Committee that the threshold for bringing a prosecution under the Bill will be high. There will be many instances of death occurring in the workplace, to somebody who is affected by workplace activity or to somebody who might have been provided with a defective service. To give an example, death may occur to somebody who goes on an outward bound training course run by a corporate entity. Although death may result from an accident, and even though there might be a degree of culpability, the Government’s view is that it is most unlikely that a prosecution will follow.

In such circumstances, there is already a considerable safeguard—I said this on Tuesday, but I repeat it because it is important—for those who are carrying out training of a hazardous nature. It seems to me that as long as they can show that the training was reasonably necessary for the proper training of the police or the military, and as long as they can show that it was properly planned, they will be protected from any possibility of prosecution if something goes horribly wrong and somebody is killed. I know that the Minister’s fear is that without the training exemption people will feel fettered in the way in which they carry out training, but the reverse is also true. If we do not have such a possible sanction for examples of gross negligence, there will be an inclination to sloppiness because people will take the view that there is not a serious sanction if something goes horribly wrong.

I realise that this is a difficult subject, but as we move away from the armed forces, and perhaps away from the special forces on a pinnacle of their own, and through the other activities, I am slightly anxious about giving the police protection for gross incompetence in their training. I appreciate that there may well be an investigation by the Health and Safety Executive, a censure, or internal inquiries, and that those will all contribute to ensuring that such accidents do not happen again, but I am sure that the Minister is conscious that the danger is that when such incidents occur in the future and there is a suggestion of really gross incompetence, which occasionally happens in human affairs, when it is announced on the radio or television that no prosecution for corporate manslaughter will be possible because the police are exempt, the consequence will be public disquiet, which is the very thing that the Bill has been introduced to try to deal with.

Gerry Sutcliffe (Labour, Bradford South)

The hon. Gentleman makes a point developing his argument, as I would expect him to do, but does he accept that the context is that we are removing Crown immunity, that there are ways other than a charge of corporate manslaughter—including judicial review or public inquiry—by which the police and other authorities can be investigated, and that there is a range of sanctions and efforts that can be made to right a wrong?

Dominic Grieve (Conservative, Beaconsfield)

Yes, the Minister is quite right. We are removing Crown immunity, and one of the consequences of that removal is that if in future the sorts of things that I have described happen and people are unhappy about that, pressure will no doubt build on Government to start revising the categories of the exemptions that they have created. On the one hand, the Government have said that Crown immunity will go—the public appreciate that, because historically it has been regarded as a way in which the Government avoid censure for serious mistakes made at management level within the system—but, on the other hand, they have put in a complex panoply of exemptions to protect those areas that they think are particularly sensitive. There is nothing wrong in that—it is a perfectly reasonable way to proceed—and, as I said, the one great argument in the Minister’s favour is that, having established the principle, if in future the detail appears to be wanting, there will no doubt be a Corporate Manslaughter and Corporate Homicide Act (Amendment) Bill. I envisage Members of Parliament, some of whom might be members of this Committee, introducing such legislation in private Member’s Bills. I see the hon. Member for Eccles (Ian Stewart) smiling. I think that I understand the direction in which he is going.

Yes, we have established the principle. However, given that the Government are asking this Committee to consider the detail, we need to look at the issues individually. I put a slightly bigger question mark over police training than over military training, so am simply flagging up the matter. That said, and given that the Minister will be able to respond more fully in a moment, I repeat that this is a probing amendment.

Jo Swinson (Liberal Democrat, East Dunbartonshire)

I welcome this opportunity to speak to amendments Nos. 128 and 129. Amendment No. 128 would remove subsection (3), and amendment No. 129 would remove paragraphs (a), (b) and (c) from subsection (4) but leave the definition of public authority.

We have tabled the amendments because, in our view, subsections (3) and (4) create a blanket exemption for the police. The Minister said that the Committee was being somewhat suspicious, and perhaps I am guilty of being suspicious, but the Government must make the case for such an exemption when other organisations and companies will have to comply with the legislation. A good case must be made for an organisation such as the police to be exempt.

If the amendments are not accepted, I fear that the police or by other public bodies acting in a policing or law enforcement capacity will be exempt from the application of the legislation in respect of all but the very worst mistakes. Surely, if the police cause a death that could reasonably have been prevented, they should not be above the law. The Minister will say that there are other accountability structures, but, as my hon. Friend the Member for Kingston and Surbiton (Mr. Davey) said in a previous sitting, they are not always adequate in holding the police or other bodies to account.

I also want to ask the Minister’s opinion on an example which I am sure has been put to all members of the Committee by Liberty. It may not be the Home Office’s favourite organisation, but it raises an interesting point. Imagine a police force that knowingly and consistently ignores guidance that its officers should be trained in the use of restraining techniques—it is widely known that such techniques can kill if they are not used properly. To prevent a suspected shoplifter from running away, an officer uses a dangerous technique to restrain him and kills him. If the officer has received no training, he could not be held responsible for the death, but as a result of the exemption, it seems that there would be no possibility of prosecuting the police for failing to give such training.

What is the Minister’s view on that case, and how will the police be covered by the legislation? It seems that there is a huge exemption for them. I would like him to outline the circumstances in which the police could be prosecuted under the legislation if it is not amended.

Gerry Sutcliffe (Labour, Bradford South)

I thank hon. Members for the spirit in which they have proposed their amendments. I listened carefully to their views on whether and which policing and law enforcement operations should be covered by the offence. I want to explain why the definition of law enforcement activities excludes policing and law enforcement activities in general, and custody in particular, but includes immigration enforcement. Of course, as I explained earlier, all of that is in the context of extending the law to the police and the Crown.

As hon. Members have said, amendments Nos. 128 and 129 would remove subsection (3), which exempts police forces and other public authorities from the relevant duties of care in relation to policing or law enforcement activities, other than duties that are owed as employers or occupiers, as we discussed earlier.

The police do of course have a general duty in relation to their policing operations to protect the public from unlawful behaviour. However, that duty is owed to the public at large and is not by itself a basis for holding the police legally to account. The activities in which the police engage are influenced by considerations wider than the immediate circumstances of the event, such as the deployment of resources and the prioritisation of incidents.

As a public body charged with public duties, the police are in a position quite unlike a private security firm. The differences between the two types of body warrant a different approach in relation to the offence. Unlike a private security firm, a police force cannot turn down a request for protection and find itself entirely without responsibility. A private security firm would not be held responsible if it refused a job because of a lack of resources and the client was subsequently attacked. Similarly, a private security firm should turn down a job if it does not have the appropriate resources. No one would consider taking legal action against a private firm for refusing that job, but the police provide services to all members of the public, and those whom the police have been unable to aid may wish to take legal action.

The police do not have infinite resources, despite the Government’s massive investment in policing. Questions about how the police carry out their activities will ultimately involve issues of public policy—how to prioritise their resources between different operational demands, and how to balance the protection of potential victims with risks to suspects, members of the public or others caught up in an incident.

We do not think that the best way to secure accountability for the way in which the police organise and manage their activities is to subject them to the criminal offence set out in the Bill. Decisions about police resourcing, operational prioritisation or the best way to carry out particular operations should not be unduly fettered by concerns about possible future legal proceedings. Such concerns could result in a shifting of priorities to crimes where injury might occur, no matter how slight the injury or how small the risk of it. For example, we would not want the police to divert resources from, say, investigating and attending burglaries to attending every incident of a threat to kill, no matter how unlikely the threat is to be realised. In 2005-06, the police recorded almost 19,000 offences of threats to kill or conspiracy to murder.

The difficulties that I have outlined have already been recognised by the civil courts. The courts have been slow to find that the police owe duties of care in respect of their operational activities.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry to interrupt the Minister’s flow, but I hope that in discussing amendmentsNos. 128 and 129 he can also deal with the issue thatI flagged up, which is particularly relevant. Why is clause 6(3), for example, necessary at all, in the light of clause 4(2)? It seems that clause 4(2) already covers the exercise of public functions—I think that is what the Minister is now talking about—but that exemption is spelled out again in clause 6(3). If the one does not completely overlap the other, where are the examples of why clause 6(3) is needed, in the light of the existence of clause 4(2)?

Gerry Sutcliffe (Labour, Bradford South)

I understand where the hon. Gentleman is coming from. I shall continue my speech and see whether the answer unfolds. If it does not, I am sure that there will an opportunity to return to the subject.

We want the police to be clear about the offence. Taking a cautious approach is appropriate at this stage. The scrutiny report recognised the potential for the police to become risk averse if their operations came within the scope of the offence. The report suggested that education could combat that, but we do not agree that it would be sufficient in the context of extending the law of corporate manslaughter to the police for the first time, nor practical in such a complex area. There need to be clear lines to delineate where the offence does and does not apply.

Society has a right to expect the police to protect it, but where violent offenders kill, should the police be held to account for an offence of homicide for failing to prevent the killing? Where a prisoner commits suicide or is killed by a fellow inmate, is the Prison Service’s failure to prevent the death an act of homicide by the Prison Service? The label of manslaughter in such cases does not seem to be apt.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I am not sure whether this has been mentioned in previous debates, particularly on Thursday afternoon when I was not present, but the case of Jean Charles de Menezes seems particularly relevant. Is the Minister clear that the exemption sought in the clause would mean that the Metropolitan Police Authority could not be charged with manslaughter in that case?

Gerry Sutcliffe (Labour, Bradford South)

It is difficult for me to respond to that point because, as the hon. Gentleman knows, the case is sub judice and I cannot discuss it individually. However, the issues that are raised may become clearer if he allows me to continue.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate that the Minister cannot comment on an individual case, but it must be clear that, in the light of the existence of clause 4(2) and of the entirety of clause (6), those responsible for any action by the police in carrying out an anti-terrorist operation that leads to the death of an individual that is not justified under law on the grounds of self-defence or the protection of the public, could not be prosecuted, no matter how culpable the management structure of the police service might have been. That has given rise to quite a lot of adverse comment on the structure of the Bill and without considering the particular example, we can be satisfied that it is quite clear that prosecution could not happen.

Gerry Sutcliffe (Labour, Bradford South)

The hon. Gentleman comes my aid yet again, and I thank him.

Tackling deaths in custody is a key priority for the Government. We have several initiatives aimed at making custody safer, including suicide prevention co-ordinators in all prisons, the development of new safer prison design that will include safer cells, and the investment of £26 million allowing physical improvements to be made at six pilot sites. There is no question of exempting the Prison Service from the offence: it will be covered in important respects. It is also imperative that where individuals have acted unlawfully, they should be accountable under the law, and that will continue.

We are dealing with a wider point: accountability for the organisation and the management of detention. Detention goes to the heart of the exercise of state power over individuals in a complex environment. Prisoners are often vulnerable people and there is a complex mesh of policy and operational constraints, which has to balance the protection of the public and staff with the needs of individuals. To take a topical example, where there are constraints on the availability of places for prisoners, difficult decisions need to be made on how prisoners will be detained, such as whether to use police custody, the appropriateness of doubling up and the early release of certain categories of prisoner. Those questions go to the heart of balancing the safety of the wider community with the safety of prisoners and demonstrate the close link between the way in which detention is carried out in any particular prison and broader issues about detention and criminal justice in general. We think that those matters call for wider accountability than is achieved through the criminal law, namely accountability through Parliament. I have already spoken about immigration centres and why we want them to move forward.

To return to the point that the hon. Member for Beaconsfield made about whether we need clause 6(3) because these matters are covered in clause 4(2), we believe that it is a matter of clarity. The scrutiny Committee considered that the term “exclusively public function” in clause 4(2) was not clear enough and wanted us to respond by making the provision explicit. That is what we are trying to achieve. The motivation was to be clearer and more specific.

Michael Fabricant (Conservative, Lichfield)

I ask the Minister to imagine a Venn diagram. In that diagram, what activities would be covered by clause 4 that were not covered by clause 6 and vice versa or does he imagine the two circles of that Venn diagram would overlap completely and contiguously?

Gerry Sutcliffe (Labour, Bradford South)

My imagination is ranging quite wide this morning. Although I have tried to explain the different aspects, the hon. Gentleman is clearly not satisfied. If it will help him, we will try to spell out in written form why we have done what we have done.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate the point that the Minister is making. He has helped to clarify that the Government have taken a belt-and-braces approach because of the anxiety about clause 4(2) expressed during the pre-legislative scrutiny process. That said, there must have been some discussion in the Home Office on whether there is really an issue here. Will the Minister check whether during those internal discussions any examples were thrown up of clause 6 extending wider than clause 4 in respect of the police or any other public authority that is covered by clause 6, and write to the Committee with the results of his inquiries?

Michael Fabricant (Conservative, Lichfield)

With a helpful Venn diagram. [Laughter.]

Gerry Sutcliffe (Labour, Bradford South)

That is probably the best way to assure Committee members that they need not be suspicious of our motivations. I shall try to provide further clarification.

The hon. Member for Beaconsfield returns us to our debates on training. We have had detailed discussions on that in relation to the armed forces, and, for the reasons given, we believe that the same argument applies to the police when they are carrying out hazardous training in relation to tackling terrorism, civil unrest or serious disorder. With those explanations and the promise of further clarity being provided in writing, I hope that hon. Members will not press their amendments.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

The Minister promised a little more explanation of how the measures might apply to a case similar to that of Jean Charles de Menezes. I understand why the Minister does not want to comment on that case, but as the hon. Member for Beaconsfield said, there are issues to consider that are germane to that case or similar cases that we can imagine. Given that the de Menezes case is in hon. Members’ minds, we want some light to be shed on what the Government are trying to achieve.

In a similar hypothetical case, it might be difficult to pin blame on individual officers, particularly if they were properly trained and acting under instructions. Indeed, for the reasons outlined by the Joint Committee, we probably would not want to pin too much blame on individual officers, because we do not want a risk-averse culture to develop, particularly when dealing with a threat as serious as terrorism. We need a balance between ensuring that the organisation behaves professionally and providing as many safeguards, as much training for its members and as much clarity as possible. It is reasonable for members of the public to demand that the senior managers of the police service produce those sorts of processes and make sure that the organisation operates in a way that will not lead to incidents of gross negligence.

As the Bill stands, if a manager in the police service or of any authority were found to be grossly negligent in the way in which operations were undertaken and organised, a prosecution could go forward only under the Health and Safety at Work, etc. Act 1974. That is what is happening in the de Menezes case. I am concerned by that. If an organisation has been grossly negligent and that has resulted in someone’s death, the offence thus committed is more serious than an offence under the 1974 Act.

Moreover, Liberty suggests that the Government might not be meeting their obligations under the European convention on human rights, particularly underarticle 2. In Turkey, there was a case—the Öneryildiz case, of which I am sure the Minister is aware—in which the offence that was prosecuted, of which the authorities were found guilty, was deemed not to reflect the seriousness of the conduct of the judicial authorities. There is a danger that the Government will follow that line with the exemption in clause 6.

Dominic Grieve (Conservative, Beaconsfield)

The Minister says that Crown immunity is being removed in blanket form, but the irony is that it is already possible to prosecute police under the 1974 Act, so to that extent Crown immunity is long gone. I am not sure when it went or whether it was ever present in respect of the activities of a police force. It is therefore odd that this measure is a fetter on extending the law beyond the scope of the 1974 Act, when that is precisely what the Government said they intended to do and was the rationale behind the Bill.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

The hon. Gentleman is absolutely correct, so we have to question the Government’s motives. They may feel that the police service—let us remember that we are thinking of it as an organisation, not of individual police officers—could be brought into disrepute if a case of corporate manslaughter was brought against it and that that might undermine public trust in the police service. That is a serious issue and worth debating, but we have not heard those arguments yet today. If it is the Government’s defence, we need to understand and scrutinise it. As the hon. Member for Beaconsfield made clear, we need to understand why, if the police can be prosecuted under the 1974 Act, the Bill does not subject them to the further extension that all other organisations are having to undergo. There may be an argument in that respect, but we have not heard it yet.

All the Minister’s body language suggests that he is ready for this point. I would expect nothing less from him, but I hope that he will deal with the specific point about the European convention, because if the Committee is to give the green light to legislation that will not uphold this country’s obligations, we need to worry about that. I believe that the Joint Committee on Human Rights expressed concern on that point, so I hope that the Minister can give us assurances.

Dominic Grieve (Conservative, Beaconsfield)

As mine is the lead amendment, it falls to me to say whether I intend to press it to a vote. For reasons that I gave earlier, I do not wish to do so on the question of hazardous training, but it is right to say that we have had an interesting debate on wider issues surrounding the entirety of clause 6. I want to reflect on what the Minister has said with regard to whether we could bring in further improvements on Report.

Gerry Sutcliffe (Labour, Bradford South)

Mr. Benton, please excuse my ignorance of procedure, but I believe that the hon. Gentleman is about to withdraw his amendment and I would like to answer quickly the point that has been made by the hon. Member for Kingston and Surbiton. We do not agree that the Turkish case cited means that our new offence is incompatible with the convention on human rights. We have responded to the Joint Committee and are engaged in correspondence relating to that. I take the point about the police becoming risk averse and how the balance needs to be struck. I hope that the hon. Member for Kingston and Surbiton understands our reasons for acting as we have done.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry, Mr. Benton. Had I known that the Minister wanted another bite of the cherry, I would have given him more time, but given the remarks that I have made and the fact that I do not wish to detain the Committee further on this point, I beg to ask leave to withdraw the amendment.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I rise to give the Minister a chance to give a proper reply to the previous debate, and to respond to the point that he made in his intervention. He said that he had replied to the Joint Committee. I do not know whether that reply has been made available to members of this Committee, but certainly I have not seen it. I am sorry if I am at fault in that regard, Mr. Benton, but understanding the Government’s thinking and their response to the Joint Committee’s criticism is critical. If the reply is not available now, I hope that it will be made available well before Report.

If the Government have produced a response, I hope that the Minister will share the thrust of it with us, because it is germane. Members of the Committee have been given advice by respected lawyers and by a parliamentary Committee that the legislation might not comply with the European convention on human rights. That is clearly a serious concern.

In his intervention on the hon. Member for Beaconsfield, the Minister also did not explain why the police should have a special exemption. Given that they are able to be prosecuted under the Health and Safety at Work, etc. Act 1974, why is prosecution for the new offence not to be possible? We need to tease out the Home Office’s thinking on this matter.

Michael Fabricant (Conservative, Lichfield)

I realise that the exemption is a sensitive area, and I am unsure whether the example that I shall give will be helpful or not. A friend of mine is an armed police officer. He previously served in Northern Ireland, where under the rules of engagement a British soldier could not shoot anyone unless his own life was at risk. He told me about a kid who threw a baked beans can at him—such incidents occurred. He could not tell whether it was a baked beans can or a hand grenade, but he had to decide whether or not to shoot the kid before he threw it.

My friend told me something else in relation to his role as an armed police officer. He is concerned that if the provision is too tight, he would not be given the type of training necessary for him to make those snap decisions. They are life-and-death decisions, not only for a potentially innocent victim but for him too. The Committee should bear it in mind that there is a huge burden on armed police officers in making a decision about whether to use their weapon to protect themselves or others, given that there is always the chance that they might make a mistake in that split-second. Such decisions are not easy.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I am grateful to the hon. Gentleman, because in that case of his friend he puts the two issues starkly. I do not think that anyone in this Committee or in the House would want to make the incredibly difficult job of our security services, be they the military or the police, any more difficult. They put their lives on the line for us, and we must respect that in the way we draw the legislative framework around their actions. The graphic example of the baked beans tin makes the point clearly.

However, the hon. Gentleman went on to say that his friend was concerned that he might not get the training, depending on how tightly the provision was drawn. That is the point about the organisation: we are not talking about an offence for an individual, but one for the organisation. If the organisation is not providing the training to give as good a chance as possible for the individual officer to be able to make a snap judgment about situations such as the one involving the baked beans tin or one where a gentleman is walking the streets of London in a coat that looks padded and that has nothing to do with his waist size—

Michael Fabricant (Conservative, Lichfield)

Nicholas Soames.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I shall ignore that comment from a sedentary position, tempting though it is to develop it; those in glass houses should not throw stones.

The training for those officers must be of the highest quality. We must give those men and women who put their lives on the line the best possible chance to make those decisions. Whether or not they are individually at fault, they have to live with the consequences and the images of their actions. I guess that the officers who were involved in the Jean Charles de Menezes case might have nightmares, and might be traumatised by what they have been involved in. That is why it is important to give the training to which the hon. Gentleman referred: to help those individuals deal with the stressful and difficult situations that we put them in. The whole point of the new offence is whether it should apply to an organisation to make sure that it does its job properly and has a duty of care to its employees so that they can carry out their difficult task for the members of the public they are there to protect.

Gerry Sutcliffe (Labour, Bradford South)

I am grateful to the hon. Member for Kingston and Surbiton for initiating the clause stand part debate and for giving me the opportunity to respond more fully. My only other chance would have been on an in intervention, which would have been far more rushed that I would have wished. I am grateful to the hon. Member for Lichfield for giving the example of his friend. It took my mind back to one of my constituents, Private Lee Clegg. He was a serving soldier in Northern Ireland who was convicted of murder after firing a rapid-fire automatic weapon and it was the final four bullets that got him convicted. I cannot remember the exact phrase used in the judgment, but it referred to his overuse of the weapon. That conviction was eventually quashed. There was a fine line in the decision that had to be made about the danger.

It is in that context that I have concerns about what we are trying to achieve. Yes, I am proud that we are removing Crown immunity. That is right and proper and we have talked about how we are doing that. We have to be very cautious with the police. It is this point about institutionalising risk aversion. Are we creating a bigger danger for the public by not carrying forward what the police should do on the basis that they may be in a position where they have to consider the possible consequences? We are trying to draw a fine line between the proactive errors and the failures.

There is an example in the civil courts where the police were found to have breached a duty of care and were sued for damages for using a gas canister without sufficient fire-fighting equipment to control any fire caused. To put this in context, the police were using the gas canister to smoke out a dangerous psychopath. The choice for the police of whether to act or not may well be a case of Hobson’s choice. They can act and risk danger or not act and still risk danger. On that basis, it is important that we are careful how we respond.

The hon. Member for Kingston and Surbiton may say that we are in breach of human rights legislation in the Turkish example. We do not believe that we are in breach of the European convention and the discussion with the Joint Committee on Human Rights has taken place. The correspondence is there and I am happy to ensure that members of the Committee get copies of it. The hon. Gentleman will know that lawyers disagree with each other about interpretations.

Tony Lloyd (Labour, Manchester Central)

The debate on the various amendments and on clause stand part brings out one point which I hope my hon. Friend will look at quite seriously. There must be something of a paradox. I know that we do not want to go into the Menezes case here as it is sub judice, but it would be rather odd if we ended up with a law on corporate manslaughter which did not cover the police, but where the Health and Safety at Work Act still covered them. That would be an odd conjunction of law. Even odder would be the situation in terms of risk-averseness where the individual serving officer, the officer who has to make that split second decision about the baked beans can, could be prosecuted if found to be in gross breach of duty under the existing law of manslaughter, but the lousy management decisions of his superiors would not be subject to the same scrutiny. That would be a very unfortunate consequence.

Gerry Sutcliffe (Labour, Bradford South)

I understand the Committee’s strength of feeling on this issue and the lack of clarity about what we are trying to achieve. We are trying to be sensitive about this but I am happy to take on board my hon. Friend’s suggestion. I will take this away and look further at it.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

The Minister, rightly, talked about risk aversion. As the Select Committee said, we do not want a risk-averse culture. The flip side to that is that we want a risk-management culture too. There is a fine line between risk aversion and professional management of risk. Many private companies spend an awful lot of money and time—quite rightly because they are legally obliged to do so—to ensure that they manage their risk properly. It is justifiable for us to ask public services to ensure that they manage their risk, too.

Gerry Sutcliffe (Labour, Bradford South)

I know that the hon. Gentleman’s intention is not to undermine the excellent work of those services. They consider a range of situations, and they try most professionally, either with the administration and the management of those systems, or with individual delivery, to meet the requirements of protecting the public and administering their services. He will accept the differences that I described earlier in relation to private security firms and the police service, and I am confident about the way in which we have set out the exemption provision. We are achieving what hon. Members want, but I am prepared to reflect on what has been said.

The hon. Member for Beaconsfield has already said that he will return to the issue, and I may be able to provide further clarity on Report. It might be worth trying to work on a better solution to achieve the results that the Committee wants. We have had the opportunity to tease out the issues even further in the clause stand part debate, but that does not mean that people will not support the clause. I am grateful for having had the opportunity to debate it, and I hope that it will stand part of the Bill.

Dominic Grieve (Conservative, Beaconsfield)

I apologise for rising at what may appear to be the end of the debate, but the hon. Member for Manchester, Central (Tony Lloyd) made a key point. We are creating a situation in which the individual who pulls the trigger, for example, risks being prosecuted for manslaughter, but the organisation does not. It is a bizarre state of affairs. If one were to ask police officers who have to carry out firearms duties or make split-second decisions, about their attitude towards the possibility of prosecution for manslaughter, one would hear responses about the psychological difficulties and pressures that the situation places upon them, about the burden upon them while they are under investigation and suspended from work, and about numerous instances—regularly cited in the press—in which the situation is over-onerous.

Indeed, in the past 10 days, there was an interesting report by an American psychologist who came to the House. He explained how with split-second decisions, when a police officer decides that they may have to shoot somebody because they pose a threat, the officer may be doing something rather different when the shot is fired, compared with what they were doing when they took the decision to shoot. There is important evidence about that, and it has a direct bearing on several controversial cases.

As we know, in many cases the person taking the difficult decision will have had instructions, training and management that creates the ethos in which decisions are made. They are a legitimate area for public discussion. However, even if there is clear evidence that management decisions have been poorly carried out, they will not lead the organisation to be prosecuted for corporate manslaughter.

I have spoken to officers, and I cannot help thinking that if an officer was asked, “Are you worried about the police force in which you are a firearms officer being prosecuted for corporate manslaughter if the management structures are considered seriously flawed in relation to a shooting?”, they would not lose a huge amount of sleep over it. I accept that higher up the chain, those officers who take management decisions might see their careers jeopardised, and we cannot ignore that issue because they have to make difficult decisions, too; however, the situation is odd.

We shall return to that point during our debate on clause 7 and the national health service, because I have tabled some amendments that I want to consider in the same context. The person up front could face the full rigour of the law, including the risk of imprisonment. In the public scrutiny of systems failures within the organisation, however, we are letting people completely off the hook. Most parliamentarians would consider the consequential penalties benign, although the risk is of inhibiting decision making all together.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I do not know whether the hon. Gentleman, or the Minister, has had the chance to speak to the Police Federation. I should have thought that it would be worried that the legal duties could be more onerous on the individual officer on the front line than on the senior management of the force.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a valid point. This matter causes me some disquiet, but curiously that is separate from any problems that I had in respect of the military, where different issues arise. We are dealing with civil society, from which the military is rather removed. In civil society, police officers and organisations have the same duties and responsibilities as other citizens, sometimes with special powers, but nevertheless, the idea is of the citizen in uniform. This exemption category is different even from the ones in respect of a Department, where Crown immunity issues are involved, which is perhaps why I worry more about it than clause 4(2), even though that subsection impinges on this matter, too.

I question whether this is the correct way forward. I fear that if we do not get it right, we will end up with constant criticism. As I said earlier, we will return with an amendment to the Act in the future, because people will feel that it is unsatisfactory. There is some concern about clause 6, so perhaps the Minister will take away hon. Members’ comments and see if anything else can be done on Report. I accept that this is a difficult matter.

Ian Stewart (Labour, Eccles)

Can the hon. Gentleman help us by suggesting, even at this point, a direction of travel and some possible solutions?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman gives me a hard task. The difficulty is that we may be taking the police out of the operation of clause 6(3). Let us leave subsections (1) and (2) alone for the moment, because they deal with a slightly different issue relating to terrorism and public disorder where different considerations apply.

We want to get rid of subsection (3) and, by implication, we would have to remove the police from the scope of clause 4(2), although we would have to consider what the impact of that subsection might be on the police in respect of an exclusively public function. My head is still in a bit of a cloud about that, despite the Minister’s comments about the interrelationship, but if he is right, the police would have to be taken out of clause 4(2). If that were so, they would be liable to prosecution for ordinary policing decisions outside

“terrorism, civil unrest...public disorder...attack...threat of attack or violent resistance”,

and for everything else they would be covered by the Bill.

It is worth mentioning that the “threat of attack” in clause 6(2) is so wide that it is a least arguable that it covers the Menezes case and the case of the chair leg in the Hackney street.

Michael Fabricant (Conservative, Lichfield)

Or the baked beans tin.

Dominic Grieve (Conservative, Beaconsfield)

Indeed. I accept that this is a difficult area. All I can say to the hon. Gentleman is that I do not have an immediate answer. However, the creative genius of the Home Office drafters ought to be up to thinking of some middle way. I can certainly try to think of a way forward, but it may be an either/or situation, in which case it is a difficult public policy issue. However, if the Minister has any creative solutions I should be happy to hear them.

Gerry Sutcliffe (Labour, Bradford South)

We have had an interesting debate. It showed the quality of our parliamentary scrutiny. I have reflected on what has been said and the spirit in which it was said. In answer to my hon. Friend the Member for Manchester, Central, I said that I would go away and think about it because I was erring towards his point of view. The more I think about it, however, the more I think that the hon. Member for Beaconsfield was right about subsections (1) and (2) being needed because of the current climate and the threat that we face, although he said that they might be too wide and too much of a catch-all.

I turn to the military, which is separate but similar, and to the Clegg case. Clegg stood in one position, firing shots in an arc, and it was the shots at the end of that arc that ended in him being convicted for murder. He was a highly trained soldier and had served for a number of years. The organisation—the military—was not threatened with prosecution, only the individual. The hon. Member for Beaconsfield said that the experts spoke of the crucial time in people’s minds in relation to the firing of those shots, but I think it will be difficult to find an innovative way forward. As the debate continues, I am more inclined to say that we are right. Because of our discussions and thought patterns, we will go there—we will see what can be done—but it will be difficult to find a solution.

Ian Stewart (Labour, Eccles)

I caution my hon. Friend against concentrating on the issue of a person’s mentation in making a judgment and ask him to concentrate more on whether there is a wider responsibility. That seems to be the crux of the debate, and I would like my hon. Friend to go away and think about it.

Gerry Sutcliffe (Labour, Bradford South)

My hon. Friend’s suggestion was better than his usual warning. I am thinking about it. I am wondering what the organisation can do to assist the individual in those circumstances. In answer to the hon. Member for Beaconsfield, if the members of the Police Federation go to the Association of Chief Police Officers to express their concern, will it make the police risk-averse—will it institutionalise that risk-aversion? I am concerned about that. It is on that that we need to strike a balance.

We have had a useful discussion this morning, but we all need to go away and think about the implications of what has been said. For the purposes of procedure, I ask that clause 6 stand part of the Bill.

Clause 7

Gerry Sutcliffe (Labour, Bradford South)

I beg to move amendment No. 119, in page 5, line 9, leave out

‘to which this section applies’

and insert ‘within subsection (2)’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss Government amendments Nos. 120 to 122.

Gerry Sutcliffe (Labour, Bradford South)

The purpose of clause 7 is to ensure that a narrow range of organisations is not liable to prosecution for corporate manslaughter in respect of the actions they take in response to emergency circumstances. Matters such as the timeliness of the response to an emergency, the level of response and the effectiveness of the way in which the emergency is tackled are excluded from the ambit of the offence.

It is worth emphasising that the exemption in subsection (1) applies only to the way in which those organisations respond to emergency circumstances, as defined in the Bill. Activities that do not form part of the response, such as maintaining vehicles or training staff, are not covered. If a vehicle driven at speed to an emergency crashed because its brakes had not been adequately maintained, it would not be covered by the exemption. However, an allegation that a fire authority had not provided sufficient cover at an incident would be exempt. The exemption also does not override the duties of care owed by an organisation as an employer or occupier, as previously discussed. Thus, an authority otherwise benefiting from the exemption would still be under a duty to provide safe systems of work for its employees. For example, it would be required to provide adequate training for employees who were required to drive at speed.

In most circumstances, the organisations listed would not owe a duty of care in terms of their responses to emergencies, but there are some situations in which that would be open to question. That could lead to uncertainty in the emergency services about where their criminal liabilities lie. We therefore think it right that none of the emergency services should face a potential prosecution for corporate manslaughter in respect of their responses to emergency situations that they are attempting to alleviate and which are not of their own making.

The purpose of the new offence is to tackle organisations that create risks to the safety of others, but do not manage those risks properly. Holding public authorities responsible for their efforts to assist those in danger extends the concept of manslaughter too far. Creating such liability might encourage a culture of undue risk aversion in the emergency services or have a distorting effect on operational priorities. Again, that would not be in the public interest.

Amendment No. 121 is intended to tighten the drafting of subsection (2)(d), the purpose of which is to ensure that organisations that stand in for a fire and rescue authority or are under an obligation to provide a fire and rescue service should benefit from the same exemption as those authorities. Fire and rescue authorities and their equivalent in Northern Ireland are exempted from the offence by paragraphs (a), (b) and (c). Their functions include fighting fires, rescuing people from road traffic accidents and dealing with the aftermath of such accidents. They also respond to other kinds of emergency, such as toxic spillages, floods and terrorist incidents.

Fire and rescue authorities are not the only organisations that perform such functions, however. The armed forces may be called upon to deal with emergencies, which explains the exemption in subsection (2)(i). Airports are also obliged to provide firefighting services under the terms of aerodrome licences. Teams of firefighters are co-ordinated by the Maritime and Coastguard Agency to fight fires at sea, while fire and rescue authorities have a statutory power to enter into arrangements for their functions to be discharged by other organisations. There is a wider public dimension to all those circumstances that should carry an exemption.

The current drafting goes wider than that, however, by extending the exemption to all organisations that employ firefighters, so, for example, a private company offering firefighting services to the film industry would benefit from that. We do not think that that is right. If a company offers such a service commercially, why should it be exempt from liability for performing it negligently? The essence of the exemption is to exclude those bodies that fill a statutory or other public role in responding to an emergency and which are therefore subject to wider considerations involving the public interest in meeting the demands on them.

We therefore propose to narrow the exemption. The purpose of proposed paragraph (d)(i), which would be inserted by amendment 121, is to ensure that the exemption covers all organisations that make arrangements with fire and rescue authorities to carry out their functions. That might include commercial firefighting organisations, but such organisations will be covered only where they are, in effect, standing in the shoes of a statutory body, not otherwise. Proposed sub-paragraph (ii) deals with other organisations that provide firefighting services on a non-commercial basis. That means that organisations such as those that provide firefighting services at airports, as well as others in a similar position, would be exempt in terms of their responses to emergency circumstances.

The first purpose of amendment No. 122 is to ensure that organisations that perform ad hoc rescues at sea benefit from the exemption. Subsection (2)(h) provides an exemption for organisations that provide a rescue service, such as Her Majesty’s coastguard, the Royal National Lifeboat Institution and Mountain Rescue. However, subsection (2)(h) does not cover organisations that are not in the business of providing rescues, but which may be called upon to provide rescue at sea.

Vessels at sea are under specific duties to go to the aid of other vessels in distress. The requirement to assist persons in distress at sea is found in regulation 33 of chapter V of the international convention for the safety of life at sea, which is enshrined in UK legislation. Adherence to those duties is an integral part of maritime safety, and we would not want the Bill to undermine that. We therefore think it appropriate for the exemption to extend to vessels carrying out rescues in those circumstances. Amendment No. 22 provides that cover.

The second purpose of amendment No. 122 is to extend the exemption to other kinds of responses to maritime emergencies. Under the Merchant Shipping Act 1995, the Secretary of State or his representative can take action, or issue legally binding directions on others to take action, in response to emergency situations. For example, in the event of an accident to a ship carrying hazardous substances, an order could be issued to a third party to act to prevent pollution causing serious harm to the environment.

Doing that involves the difficult balancing of various interests; for example, the potential risk to life in carrying out an order will need to be balanced against the risk of not taking any action. If those making or following orders were obliged to take into account the risk of prosecution for corporate manslaughter, it is possible that decision-making in inherently risky situations would be distorted. We do not think that that would be in the public interest. Therefore, it is appropriate that such actions should benefit from the emergency services exemption, hence the second part of amendment No. 122.

Amendments Nos. 119 and 120 are technical amendments consequential on amendment No. 122. With that explanation, I hope that the Committee will support the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I hope that the Minister will forgive me if I say to him that after listening carefully to his explanation of the Government’s tweaking of clause 7, I was left thinking that it involves a slight element of contradiction. On the one hand, he reasonably said that he wanted to extend the protection of clause 7 to vessels on the high seas that, although commercially operated, have duties and obligations placed on them to render assistance. Such a vessel might carry out a rescue because it is under a duty to do so. He said that it would be wrong in such circumstances that people should feel that there is a terrible sword of Damocles hanging over their head that might fall on them if they make the wrong decisions in a risky environment. I have some sympathy with that.

However, earlier in his remarks, he said that he wanted to exclude commercial organisations that provide fire and rescue services from the scope of the Bill. Currently, they are exempt, as they are providing rescue services described as

“extinguishing fires or protecting life and property in the event of a fire”.

I am somewhat bemused by where the difference lies. I accept that they are doing it for profit. I know that historically there has been a certain aversion to profit on socialist Benches, but I thought that that had gone out in the past 100 years.

Let us take the example of a commercial organisation that provides fire services to the film industry. I use that example because I happen to have Pinewood Studios in my constituency. The pyrotechnics at Pinewood, particularly for James Bond films, are complex, and every now and again something goes wrong. The commercial organisation that provides fire services at Pinewood, or anywhere else, will face exactly the same decisions as a statutory organisation. A fire breaks out, people rush to the scene. The service may be provided commercially. In fact, the fire and rescue services probably would not apply in the case of Pinewood, as the statutory ones are a long way away.

It is true that the commercial organisation provides services for reward—it is permanently retained and makes a profit from providing the service—but its employees are faced immediately with difficult choices that are identical to those that an ordinary fire brigade would face if they attended such a scene. What are the priorities? Should they stop the fire in building A before they stop the fire in building B? Exactly what risks do they face by rescuing people in one building and leaving the rescue of people in another building for the next half hour because they think that the first is the more urgent? What difficulties will they face if it is subsequently suggested to them that they got it wrong and that they should have gone for the other building first? Those are very real decisions, and the fact that organisations are commercial—

Standing Committee B

Clause 7

Dominic Grieve (Conservative, Beaconsfield)

I think that the last word I used before we adjourned was “commercial”. That seems to stick in my mind. I was saying that commercial organisations would be facing the same difficult life and death decisions as a statutory authority if they were providing fire protection. I had a question mark in my mind about why they should be removed from the protection that will be given to statutory bodies that carry out an identical role.

I was also conscious that the hon. Member for Kingston and Surbiton (Mr. Davey) wished to intervene, so now might be a good moment to give way to him.

Ian Stewart (Labour, Eccles)

Can the hon. Gentleman remember what he wanted to say?

Edward Davey (Liberal Democrat, Kingston and Surbiton)

Fortunately, I can remember. The hon. Member for Beaconsfield (Mr. Grieve) jogged my memory when he used the word “commercial”. Will he speculate on whether the Minister thinks that commercial fire services might be less risk averse if the offence were to apply to them than fire services in the public sector? If the hon. Gentleman thinks that that is the Minister’s thinking, can he explain why?

Dominic Grieve (Conservative, Beaconsfield)

If an organisation was providing highly skilled services for reward, it would be dependent on its reputation. That is not to say that it might not be sloppy in the way in which it carries things out. However, it would be equally affected and might be made risk averse if it considered that a draconian sanction could be visited on it if, as a result of making a professional judgment that was subsequently called into question and one that was made under the pressure of events, it started to err on the side of caution and, as a result, failed to make the right decision.

In a funny way, I am advancing a swings and roundabouts argument. Going back to what the Minister said about statutory bodies, we could argue that no statutory body dealing with fire and rescue would ever be prosecuted under corporate manslaughter—if that were possible—if it simply made an error of judgment under the pressure of events. Such action would not amount to the gross negligence systems failure at which the Government are aiming, so why are we taking the statutory bodies out of the possible orbit of being prosecuted for corporate manslaughter? Doubtless, the hon. Gentleman will put forward some powerful arguments for giving that protection, but if it were to apply to a statutory body, I am at a loss to see why it should not also apply to a commercial body.

Picking up what the hon. Member for Kingston and Surbiton said, there is an implication either that commercial bodies do not deserve a special exemption or that they might be more cavalier in their approach and thus merit greater sanction because they could be sloppier. I should be interested if the Minister can produce evidence to suggest that a private firefighting organisation that makes a profit is likely to be any sloppier than another organisation. I have always assumed that private firefighting organisations are contracted to provide fire services at airports, particularly at aerodromes. It tends to be a highly technical role, which requires high levels of training in an environment where if the commercial organisation were to end up making a mistake, it would probably ruin its reputation and be put out of business anyway because it would never be used again.

There is actually a greater sanction on commercial organisations in such matters because if they foul up their reputation might be destroyed, whereas it is a feature of a statutory organisation that, on the whole however much it fouls up, it continues to exist because there is no possible replacement for it unless the service is privatised. I hope that the Minister will take on board my thoughts and possibly consider them outside of the Committee.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I support the comments of the hon. Member for Beaconsfield (Mr. Grieve). The Minister has not yet made the case either in previous debates or in relation to the amendments that extra exemptions are needed. Let us be clear: the offence created by the Bill is narrowly defined. An organisation must have acted in a grossly negligent manner so, for there to be an extra exemption, the Minister must explain why a statutory body should still be exempt, although it had acted in a grossly negligent way and the offence was so great that it could be fitted into such a narrow scope. That is a hard test for the hon. Gentleman to prove, even with the particularly sensitive and difficult case of the emergency services. It is not that I am not open to be convinced. I should like to be convinced. I am always helpful to the Minister, but he has yet to make that case.

If the Minister were right, can he explain whether amendment No. 122 would apply to the RNLI? I wish to express an interest. I am a shoreline member of the RNLI and I am worried about those who volunteer for that amazing service. They risk their lives. They are not members of a statutory service nor are they doing it for commercial gain. Will they be subject to the exemption as a statutory body? Will they be treated differently from those on commercially operated merchant ships? Will the hon. Gentleman make it clear whether the coastguard services provided by the RNLI will be covered?

Gerry Sutcliffe (Labour, Bradford South)

Mr. Gale, this morning members of the Committee were suspicious of my motivations, yet this afternoon they say that I am contradicting myself when explaining our approach to the exemptions. I am slightly surprised that the Opposition wish to extend an exemption to the private sector, which is capable of withdrawing its services, but do not wish to extend it to the police when they are protecting the public. That is a bit of a contradiction there, but we shall put it to one side.

Dominic Grieve (Conservative, Beaconsfield)

I hope that I have made it clear that most of our amendments are probing amendments, but I am trying to achieve some internal consistency. There are grounds for arguing that there is a lack of internal consistency in the way in which matters are being approached. Some organisations are being pushed within the scope of being prosecuted, while others are kept out of it. If there is a thread throughout the clause, it seems to be a desire to protect public service providers, but not commercial or private service providers that have exactly the same role.

Gerry Sutcliffe (Labour, Bradford South)

I am grateful to the hon. Gentleman. It is not the Government’s motivation to cause greater problems for the private sector. The key point is emergencies to which we shall come in a minute.

Organisations within the public and private sectors are different in two key respects. First, the private sector organisation can choose the terms and contractual arrangements with a client and, on that basis, agree the service that it can supply. Undoubtedly, that will take into account the resources that the client is prepared to have standing at the ready. Secondly and perhaps more importantly, a private organisation can call in the back-up of the fire brigade if it is unable to cope with the demands of a given situation. It can deal with the matter as the hon. Gentleman has outlined, but if it goes wrong it can call the fire brigade as a back-up. There is certainly no back-up for the fire brigade.

Dominic Grieve (Conservative, Beaconsfield)

That may be true, but if private services were dealing with a fire on an oil rig in the North sea, which would fall within the measure, I doubt very much whether a lot of statutory back-up could be called in to help. The Royal Navy might come along and provide some assistance, but in reality the entire management of that crisis is likely to stay in the private sector.

Gerry Sutcliffe (Labour, Bradford South)

That is a key point, because the company would be acting in an emergency situation. In the hon. Gentleman’s example, the private company operating in the aerodrome would be exempt as well, because it would be operating in an emergency situation in place of a statutory body. That is the key point for the Committee to remember—we are talking about emergency situations.

The hon. Member for Kingston and Surbiton took us back to what the offence was about, and he was quite right to do so, because we need to step back and remind ourselves what the offence was intended to deal with in the first place. Its main aim is to tackle organisations that engage in activities that create risks to the safety of others and fail to manage those risks appropriately.

We agreed that applying the offence to public services is important. They too must take their safety responsibilities seriously, and the offence applies widely to employer and occupier duties when public bodies are supplying services. There is a band of activities in which public bodies are under responsibilities to protect the public from risks and harm generated by others, and they need to carry out those responsibilities properly, but the exemptions raise the question whether a public body should be responsible for manslaughter if it has failed to do so. In our view, that is taking manslaughter too far. That would amount to saying that organisations such as the fire service or NHS bodies were responsible for a person’s death because they failed to stop them from being killed. We must be careful about the implications of imposing legally binding duties or making organisations more risk averse.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

The point that I was seeking to make was that I wanted the Minister to explain why, if an organisation such as the health or fire service acted in a grossly negligent way, it should be exempt if it acted in such a tawdry manner.

Gerry Sutcliffe (Labour, Bradford South)

I am trying to see the circumstances. If it were grossly negligent in circumstances other than dealing with an emergency, of course it would be liable. That is why we have removed Crown immunity. But we are talking about cases in which the service should not have to think about its reactions and whether it should be risk averse, so that it can carry out what needs to be done to protect the public.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

The Minister is still not convincingme. We are talking about emergency services. Most of their activities, by definition, involve dealing with emergencies. It is their core business. If they are grossly negligent in their core business, I suggest to him, this is not necessarily the place to give an exemption. I want to be convinced, but he must go a bit further.

Gerry Sutcliffe (Labour, Bradford South)

Mr. Gale, if it takes me all day, I will try to convince the hon. Gentleman. [Interruption.] Perhaps not, given that it is a late stage in the week of parliamentary activity.

The definition of an emergency situation is that the circumstances are life-threatening or threaten to cause serious injury or illness or harm to the environment or buildings or other property. The decisions taken—we talked about this in military terms—are split-second decisions. The exemptions that we are considering apply to those conditions, not to how the organisation goes about its business in general. There are small areas where the exemptions are entirely appropriate. Perhaps the hon. Gentleman does not agree with me, and however hard I try he will not accept my position, but I think—

Dari Taylor (Labour, Stockton South)

I would be interested to hear whether my hon. Friend has received representations from the fire service or any other emergency service stating that the protection awarded in the Bill is not adequate. I have received no such representations.

Gerry Sutcliffe (Labour, Bradford South)

I am grateful for the intervention. My hon. Friend is helping me in her own way. She makes a fair point about the extensive consultation on the Bill. We have tried to strike a balance on responsibilities—not giving a Crown body an easy exemption, but being mindful of the impact of a decision on risk aversion. She is right that the emergency services have not contacted us saying that what we are doing jeopardises the position.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

Shock, horror!

Gerry Sutcliffe (Labour, Bradford South)

To answer the hon. Gentleman, the Royal National Lifeboat Institution would be exempt in providing emergency services. I hope that the Committee will support the Government amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. I shall reflect on the Government’s approach in changing the Bill. However, I am still concerned. An argument can be made both ways. People could ask why we are providing protection for statutory bodies when, unless they do something really bad, they will never be prosecuted anyway. Alternatively, they could say, “If you are going to provide this protection because you think it is justified, why are you excluding the commercial sector, which will have to make the same decisions in an emergency as the statutory sector?” I am not completely persuaded that we have got it right, but I shall reflect on the debate.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

On a point of order, Mr. Gale, I do not wish to be pedantic, but was Government amendment No. 122 moved?

Roger Gale (Conservative, North Thanet)

Everything comes to those that wait. It will be moved at the appropriate time.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 132, in clause 7, page 5, line 19, leave out paragraph (e).

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss amendment No. 144, in clause 7, page 5, line 22, leave out paragraph (g).

Dominic Grieve (Conservative, Beaconsfield)

The amendments will perhaps prompt a debate that is narrower in scope than our debate on amendment No. 119 and the subsequent amendments, although I accept that there is a degree of overlap.

What is an emergency service? We have to consider not what we think an emergency service may be, but what it says in the Bill. We are told that the organisations that claim exemption, except if they are mentioned in 3(1)(a) or (b), owe no duty of care to people who are at the receiving end of their services, as opposed to employees or in respect of premises. The organisations include fire and rescue authorities—the Minister has explained why—and “a relevant NHS body”, which is defined in clause 7(3) as

“an NHS foundation trust, National Health Service trust, Special Health Authority, Primary Care Trust or Local Health Board in England and Wales”.

I think that the definition refers to the same things in Scotland, and in Northern Ireland it also encompasses

“a Health and Social Services trust”.

The exemption is to cover “emergency circumstances”, but those are defined as

“circumstances that are present or imminent and...are causing, or are likely to cause, serious harm or a worsening of such harm, or...are likely to cause the death of a person”.

Serious harm is defined as

“serious injury to or the serious illness (including mental illness) of a person”

and

“serious harm to the environment”

and property.

It is difficult to see that the NHS will not be exempt from the possibility of being charged with corporate manslaughter in respect of every hospital patient who happens to be in hospital with a condition that might be life threatening, because the wording does not confine what is going on to the accident and emergency department. It extends much wider than that, which troubles me. That might be what the Government intended—perhaps it was—but that is not how I initially read the section on emergency services.

A few years ago, I was involved in the early stages of a case that involved two young hospital doctors. A patient with a life threatening condition had undergone an operation that was more than routine—there can be no doubt of that—and subsequently died of infection. The doctors were prosecuted for manslaughter. The argument was that the doctors, who were very junior, had failed to pick up the signs of post-operative infection in the patient and that that was the direct cause of death; the patient would otherwise have survived. They were successfully prosecuted and convicted.

I was not involved in that aspect of the case, but the doctors received either short custodial or suspended sentences; their careers, of course, were wrecked. During the case it became abundantly clear that the doctors’ training and supervision was woeful. As a result, consideration was given to whether the hospital trust should be prosecuted for manslaughter. A decision was taken against that, but it was prosecuted under the Health and Safety at Work, etc. Act 1974 and pleaded guilty. That is my understanding; I was not involved in the latter parts of the case, so my memory of it may be faulty.

The case had nothing to do with bringing in a patient off the street and having to make quick life and death decisions about their care—the circumstances that the Government may have had in mind when they included NHS bodies in the definition. The case was about serious failings of care that could and should have been prevented, in a hospital in which there were serious management failures.

According to my reading of clause 7, it would be impossible to prosecute an NHS health trust for such failures. It would be able to say, “The patient was facing emergency circumstances and worse serious harm and injury; we are therefore exempt”. Is that what the Government intend? I do not think that it would ever be possible to prosecute a health trust when a patient died. The other problem is that unless a hospital kills a patient who is otherwise pretty much 100 per cent. fit, it will always say that it was an emergency because the patient was at risk of serious harm.

The problem is very real. I should make clear that I sought to delete subsection (2)(e) and (g), but on reflection paragraph (g) seems to involve a very different set of facts, although it refers to the NHS. I assume that it suggests that an organisation providing services for the transport of organs, blood or equipment could not be prosecuted if, say, blood were taken to the wrong hospital by mistake and the patient did not get it. Those would be the only circumstances in which the situation could arise. The emergency nature of such services is different and the argument is different.

However, we are effectively giving “the relevant NHS body”, as defined in clause 7(3)(a), (b) and (c), pretty much blanket protection against killing a patient in its care. Is that what the Government or the Committee want?

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I share the concerns of the hon. Member for Beaconsfield. Any ordinary person reading the clause, given how it hangs together, would take the view that an awful lot of NHS activity will be exempt. I am shocked by that reading. I hope that the Minister will tell us that our understanding of the clause is completely wrong. If so, he needs to tighten up the wording. Given the words “emergency services”, I had thought that we might have seen specific mention of accident and emergency and NHS ambulance trusts, for example. I did not expect every single type of NHS trust to be listed.

It may be that the Government had in mind particular aspects of health services that are related to emergency. However, the exemption seems rather broad, and I do not think that they have targeted it in the way that most people would have expected. The hon. Gentleman gave an example. I am sure that, like me, other hon. Members have frequently been concerned at how junior doctors and junior NHS staff often end up with their heads on the block because there has been a failure resulting in someone’s death, yet the trust and the management do not seem to get any comeback. If that situation were changed, and if there were the possibility of prosecuting organisations more simply—as the Bill, without these exemptions, would permit—that could benefit our NHS staff. They may be concerned about the current situation, under which they face prosecution. If I were a member of the family of a patient who had died, I would rather take an action against the organisation than against the individual members of staff, and I would like the law to enable that.

Michael Fabricant (Conservative, Lichfield)

The required level of evidence is a lot higher for criminal actions such as those that we are discussing. If there were a subsequent civil action in which the relatives of the deceased sought redress from the hospital, it would be easier for them to pursue that in court if there had already been a criminal conviction.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

The hon. Gentleman makes a valid point, and I hope that the Minister will reply in some detail, because if my interpretation and that of the hon. Member for Beaconsfield is correct, the Bill is proposing quite a significant change. I think that the Minister’s colleagues would be worried about that and would find it difficult to explain to their constituents, were they backing a change of the breadth that we fear.

Gerry Sutcliffe (Labour, Bradford South)

I am grateful to the hon. Gentlemen for the way in which they have commented on the amendments, and for trying to tease out the Government’s thinking. I am an ordinary person, and I can assure the hon. Member for Kingston and Surbiton that on my reading of the Bill the exemption is very tight indeed, though he may want to question my definition of an ordinary person.

The hon. Gentleman spoke of the difficult situations in which people find themselves when a loved one has died and when the cause is uncertain—when it could be the result of either the individual practitioner’s treatment or of system failure within the organisation. That is one of the reasons why we have had Crown immunity removed.

It was said that there may be occasions when it could be appropriate to pursue action against both organisations—against a grossly negligent individual and against the organisation if a link could be made to gross negligence on its part. However, the exemption is drafted as it is to take account of emergency situations. The effect of subsection (2)(e) is to exempt NHS bodies, including hospital and ambulance trusts, from the offence in relation to the way in which they respond to such emergency circumstances. That would mean that trusts would not face criminal prosecution in relation to their management of response to an emergency—the number of medical personnel attending, the time taken for ambulances to arrive, or decisions about patient prioritisation by staff on the ground. Trusts must balance finite resources against competing demands when responding to emergency circumstances. We do not believe that it is right to impose a criminal liability for the consequences of those decisions.

The exemption is not intended to, and does not, extend to medical treatment. The relevant NHS trust should not face a prosecution for corporate manslaughter in relation to the time taken for the ambulance to arrive or the number of personnel sent. However, if a patient died because an ambulance worker was so poorly trained in resuscitation techniques that it amounted to gross negligence on the part of the NHS trust to allow him to perform that role, it would not be exempt.

Dominic Grieve (Conservative, Beaconsfield)

I am pleased to hear the Minister say that. Perhaps I am wrong, but reading how the clause is worded, I am not persuaded that he will achieve that outcome. Even if he is correct, there is a grey area when the emergency circumstance ends and the ordinary treatment in the hospital begins. Even if the hon. Gentleman wants to pursue that line, we need greater clarity about where it lies. At present, it is completely unclear.

Gerry Sutcliffe (Labour, Bradford South)

I shall continue and hopefully reassure the hon. Gentlemen. If I fail to do so, I am sure that we shall return to the matter. We are certainly not attempting to exempt NHS trusts in circumstances that are not emergencies. The difficulty would be to draw up a credible, detailed set of circumstances. The hon. Member for Beaconsfield is far more expert than I at understanding legal framework and how such a list could be drawn up. As for the exemptions, the Scrutiny Committee told us to be clear about what we put inthe Bill.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

Will the Minister give way?

Gerry Sutcliffe (Labour, Bradford South)

Let me go a little further. I might help the hon. Gentleman. We tried to set out circumstances in which trusts would not be exempt. I have given examples of when they should be exempt. I emphasises that negligence would have to be attributable to the relevant NHS trust and not solely to the individual administering the treatment. That is where the balance lies.

Whether or not ambulances owe a civil duty of care in terms of responses to emergency circumstances is open to question. They have been held to owe duties of care in some situations. For example, in the case of Kent v. Griffiths, the ambulance service was found to owe a duty of care in relation to a delayed response to a 999 call made on behalf of a named individual. However, Lord Woolf, in making his judgment in that case, made it clear that such duties may not always arise. For example, when a delay was due to no ambulance being available or to a conflict of priorities, the imposition of liability might not be appropriate.

If amendment No. 132 were accepted, NHS trusts would be left in some doubt about their liability on corporate manslaughter, and that is not desirable. It would risk trusts adopting defensive practices that would not be in the best interests of the public.

The purpose of clause 7(2)(g) is to ensure that an organisation transporting blood, organs, personnel or equipment by arrangement with a relevant NHS trust should benefit from the same exemption as the trust, but only if it were operating in emergency circumstances. The exemption puts those bodies in the same position as an NHS trust when, for example, there is a need to transport medical personnel to the scene of an accident or an organ to a person in need of a transplant in emergency circumstances.

When a trust has arranged for another body to carry out an emergency response on its behalf, we do not think that criminal liability should attach to one body, but not the other. To allow that might risk reducing the availability of such alternative forms of transport to NHS trusts, which would not ultimately be in the public interest. The difficulty that the Committee faces is that the Government, in trying to be transparent in how they regard the exemption, have put in the Bill how they want to progress. The amendments would remove the exemption and do not accept that there are certain emergency circumstances in which the services might find themselves. That dilemma faces the Committee today. My balance would be to support the Government position unless the Opposition can come up with a better remedy than just removing the exemption. Hon. Members have said in their contributions that they accept that there are such circumstances, but they feel that the exemption is too wide and want to narrow that exemption.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

The whole point of this debate is that the Government are claiming credit for eliminating Crown immunity, but there is a real danger that they are just bringing it in again by the back door in the same Bill. Let me give an example. If one of my constituents is suffering from acute appendicitis, with the danger that it could turn into peritonitis, which is life-threatening, would the Minister consider that to be a serious illness under the terms of the clause?

Gerry Sutcliffe (Labour, Bradford South)

I say this without medical expertise, so I hope that the hon. Gentleman will give me the benefit of writing to him if I am making a grave mistake, although I do not think that I am. That is medical treatment; it is about the treatment of that condition. We are talking about emergency circumstances. I have sparked a much wider debate. I give way.

James Brokenshire (Conservative, Hornchurch)

Perhaps the issue is the definition of emergency circumstances. Appendicitis, or indeed any serious medical condition, would appear to be circumstances—the word “circumstances” would extend to an illness or medical condition—that are present or imminent. I think that that is the issue that we are struggling with, and which lies behind the amendment. Will the Minister at least reflect on the issue that has been highlighted—the use of the word “circumstances” in that context? It could extend not only to the response to an emergency or an accident but to an existing medical condition.

Gerry Sutcliffe (Labour, Bradford South)

I thank the hon. Gentleman for his intervention. I shall try to go a bit further.

The measures are not intended to extend to the hospital environment. A person who suffers a cardiac arrest on a hospital ward is in an environment where expert help is at hand. The patient’s circumstances, understood in terms of the patient’s environment, are not part of the emergency and do not in themselves threaten to worsen the patient’s condition, although the condition might itself be an emergency. By contrast, a person suffering a cardiac arrest at home is in extra danger because of the absence of expert help.

We think that the Bill is drafted to that effect, and hope that we can help hon. Members accept the spirit of what we are trying to say. The hon. Member for Kingston and Surbiton does not accept the spirit, because he wants to argue both ways. He wants to argue that we should not try to clarify the position, as we have been doing, in light of what the scrutiny Committee says.

We are trying to make it clear to the trusts what their liabilities are. I believe that it is clearly set out. Using the amendments to remove the exemptions would be using a sledgehammer to crack a nut, because hon. Gentlemen have said themselves that they want to consider the way forward. That might be the best way for us to proceed. The hon. Member for Beaconsfield said that it was a problem amendment. Therefore, let us agree to return to the matter later, because I do not think that we will reach agreement at this point. With respect, I ask the hon. Gentleman to withdraw his amendments.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

The Minister accused me of wanting to have it both ways, so I shall make absolutely clear what I am suggesting. The Government’s policy decision to remove Crown immunity in many circumstances received a cross-party welcome. On Second Reading, Members from all parties welcomed it. Our concern in this debate is that with respect to the NHS, it appears that the Government are reinstating Crown immunity in quite a wide set of circumstances, going against the pledge that they made in 2000. That policy decision has taken six years to implement, and it looks like it will not be properly implemented if we allow the clause to pass.

I listened to the Minister when he tried to define emergency circumstances and tried to convince us that they were very unusual, but I was not convinced. If he wants to get rid of crown immunity, except in a small set of cases that are generally to do with the actions of the emergency services, in order to give them a degree of extra cover so that they do not become risk averse, he will have to come back with wording that is much narrower and tighter than that before us. I am trying to help the hon. Gentleman reach his stated policy decision, so as always I have been constructive.

Dominic Grieve (Conservative, Beaconsfield)

We have had a fascinating debate. I am sorry if the Minister has felt slightly harassed by it. Before withdrawing the amendment, I will attempt to summarise the issues. The Government have set out this regime in clause 7 because they want to protect emergency services when they have to take quick decisions at the scene of an emergency about how a patient or patients are prioritised and looked after in the context of the emergency.

It is worth making the point that we might be making a mistake in doing that. As the Minister rightly said, it is possible for an ambulance crew to behave in a way that is grossly negligent, and which might be due to a management failure. For example, if ambulance men spend their time having cups of tea in a cafĂ(c) rather than sitting in the cab of their ambulance and so fail to save somebody on a routine emergency or to go to someone’s house, and it turns out that the management of the ambulance trust knew very well that this was a regular practice among numerous ambulance crews and had done nothing about it—almost a standard health and safety matter—the management will notbe capable of being prosecuted for corporate manslaughter by virtue of this arrangement. That is one end of the spectrum.

The Government justify that by saying that what they are really aiming at is the scene of a multiple car pile-up in which urgent decisions have to be taken—triage—and some people may even be left to die because there are not enough people there. Help is prioritised and given to those who are most likely to recover. That is one end of the spectrum. The other end is to say that the Government are right in what they are trying to do, in trying to protect emergency services. The issue then becomes one of definition. The Minister used the expression “treatment”—he said this is not designed to cover treatment. However, the problem is that one starts to treat a patient from the moment that one lays hands on him and starts to clear his airway at the roadside. If the treatment is being carried out correctly, it should be a seamless process from the time that he is first picked up to the time that he is taken into hospital, operated on and hopefully ends up in post-operative recovery, getting better on a ward.

As drafted, there is a total lack of clarity as to where the cut-off point lies and, as with so many other things, it might have the law of unintended consequences. The Minister will forgive me if I touch on a controversial subject, that of the targets set for dealing with patients in accident and emergency departments. There has been plenty of anecdotal evidence to show that in order to meet targets, accident and emergency departments have tended to say that they have looked at a person when they have actually sent them up to a ward in which they are looked at by a specialist. It is treated as a patient having gone through the A and E department and looked at by the mainstream consultant. The poor patient then has to wait another hour and a half before he is seen but he has been crossed off the four hour target.

Therefore, we have to be rather careful. Is it being suggested, for example, that it is treatment in an accident and emergency department, which by its very name has the word emergency attached to it, that would be exempt, but that the moment that the patient is passed to a mainstream department of a hospital, that is ordinary treatment? That is a wholly artificial definition. Is it the case, as the Minister seemed to be hinting, that we are dealing here with only those events that take place outside the hospital environment or the surgery? In which case, that is certainly not spelt out in the Bill and is also a rather artificial distinction.

This issue has to be reconsidered. We will come back to it on Report if the Minister cannot introduce something better. There is an interesting philosophical discussion calling into question the entirety of the Government’s structure in relation to emergency services. That is also linked to the police and, to a lesser extent, the military and, perhaps, to the exemptions for public authorities generally in clause 4(2). Leaving that to one side, even if we are dealing merely with the detail of what the Government are trying to achieve and trying to get it right, my view is still that at the moment the measure is opaque. If it is opaque, it will leave hospital health trusts and everybody else unable to know when the cut-off comes. I suspect that prosecutions will be brought where the legal definitions will have to be hammered out in judges’ rulings, because such rulings will be about whether or not the duty of care is owed in a particular circumstance within the scope of the Bill.

This state of affairs may be inevitable, but it is unsatisfactory. I hope that the Minister will reconsider the matter. I beg to ask leave to withdraw the amendment.

Clause 8

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 134, in page 6, line 4, leave out subsection (2).

We return to a similar problem area. I am not persuaded that my amendment, which would delete subsection (2), is appropriate, except that I should like to debate the extent to which child protection and probation functions are exempt. It may be argued—you will have to make a ruling, Mr. Gale—that we will effectively have a clause stand part debate. We will have to see how matters progress.

Roger Gale (Conservative, North Thanet)

Order. I have made it plain and will do so again that I am more than happy to have a stand part debate at the beginning of a clause. In this case there is only one amendment to debate and if the hon. Gentleman wants a stand part debate he may have one.

Dominic Grieve (Conservative, Beaconsfield)

I leave it in the hands of the Committee. I simply wanted to say that, in tabling the amendment, I was not 100 per cent. sure that it achieved its intended aim.

The issue in clause 8 is similar to one we have encountered previously. Do we wish to exempt child protection services and probation functions from the operation and scope of the Bill? Organisations have a duty of care to their employees or premises, but only underclause 3(1)(a) and (b). However, that removes any duty of care by child protection or probation services towards their clients or, in the case of probation functions—which is slightly more problematical and why these two things need to be considered separately—in respect of the wider public being protected from their clients.

I acknowledge that this is a difficult subject. One has only to consider the Victoria ClimbiĂ(c) case, for example, to see that the most serious kind of criticisms have been made of how social services handle child protection. Indeed, I would go further than that, because of my experience as a constituency MP. I should say that I deal with various local authorities and I should not like to suggest that I am identifying a particular one. After nine years as a Member of Parliament I have ended up with a jaundiced view of the ability of social services to care for children in care at all. There seems to be a depressingly familiar ring about the word “failure” in respect of the protection, nurture and help given to children in care, and—in a case as extreme as that of Victoria ClimbiĂ(c)—in respect of protecting such children from death. I grant that the field is difficult and challenging for those working in it. However, is it right that not the social workers themselves but the managers, who are often to blame for not having proper systems in place, should be exempted in a blanket way from corporate manslaughter prosecution? I have deep anxieties about that.

I think that I can anticipate the Minister’s arguments, and in some ways they may be the same as those given by the police: it is wrong to expose people operating in challenging environments to prosecution. However, in a sense, the argument is circular, because the Minister says at the same time that only in the most extreme cases will people be prosecuted anyway. Why, then, do they need special protection? Does the Minister think that their decision making would be inhibited? For me, there is a question mark about that, because at the end of the day individuals will not be going to prison—organisations will be fined.

I wonder whether there is not a better way of dealing with the issue. I wonder whether child protection and probation functions—child protection functions particularly—should not be removed from the exemptions altogether. Probation functions may be different. I suppose one could argue that it would be proper to have a fetter in respect of children in care misbehaving and causing death or somebody subject to a probation supervision killing somebody. In such cases, I would have sympathy with the Minister.

However, as far as the protection of the client group—children or those subject to probation—is concerned, I am more anxious, particularly in respect of children because of the extra level of responsibility that we owe them generally in our society. That is different in nature and quality from that which a probation officer owes a person subject to probation supervision. With that in mind, the Minister may be able to articulate why the Government think the very broad exemption is needed.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

My concerns are similar to those of the hon. Member for Beaconsfield. My experience of the social services run by Kingston council has been excellent, and when I have had to deal with other social services in nearby authorities, I have been concernedat the fact that they are nowhere near as good as my local service. I have had experiences similar to those mentioned by the hon. Gentleman, but I am sure that he would agree that his comments are not true of all social services; I have seen some do superb work.

Dominic Grieve (Conservative, Beaconsfield)

Let me make the position clear. I hope that I picked my words with attention and care. I agree entirely that there are social services that operate exceptionally well in a challenging environment; I used to do care work for exceptional social services in a number of London boroughs. Those in my own county are good, but those of some adjacent local authorities, which have a role in looking after some of the children in my constituency, have at times caused me grave anxiety.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

I am sure that the hon. Gentleman is pleased that I gave him the chance to clarify that. I do not demur from his overall point; no one would who had read Lord Laming’s conclusions about the agencies in the Victoria ClimbiĂ(c) case. Let us remember that social workers, nurses, doctors and police officers were involved in that case. Lord Laming described their failings as a disgrace. Given that sort of finding in a major public inquiry, it seems odd that we should exempt such services as the Government have done. Given that very recent experience, I really do not understand the Government’s thinking.

I think that I am right in saying that the clause was not in the draft Bill and was therefore not considered by the Joint Committee. It is therefore incumbent on this Committee to ask some searching questions, because none of our colleagues had a chance to consider the clause during the pre-legislative stage.

I am drawn to the explanatory notes, which also do not suggest precise thinking. In relation to clause 8, they state:

“It is unlikely that such bodies”—

child protection services and the probation services—

“would owe a duty of care should a person be killed in connection with such activities (for example, if a child was not identified as being at risk and taken into care and was subsequently fatally injured). This clause makes it clear that such circumstances are not covered by the offence.”

That suggests that the Government want to ensure that there is no liability if a social services department fails totally to identify a risk to a child. If that is the case, they need to define the circumstances more carefully. Given Lord Laming’s findings, there is no doubt that social services should have identified the risk in the case of Victoria ClimbiĂ(c). I am worried that the clause creates a blanket exemption that will not enable bodies to hold social services to account properly when they fail miserably.

I appreciate that the area is particularly difficult, but let us remember who will make such a case. Presumably it will not be the parents, and it might not be the guardians. Who will make the case? It might be another family member—say, a grandparent—who is concerned that there was a failure, so we also need to pay attention to the dynamics of how the process will work.

I hope that the Minister will give a rather greater explanation than the explanatory notes do and that he will reflect on our comments, given the lack of scrutiny that the proposal has received to date.

Tony Lloyd (Labour, Manchester Central)

Ever anxious to help my hon. Friend the Minister, I too share the concerns that have been expressed, but, although I understand the arguments that the hon. Member for Beaconsfield made about the probation service, I think that, with regard to the application of the Children Act 2004, we ought at least to examine carefully whether we have got the balance right in the Bill.

We know as a matter of fact that although there are many examples of good child care in our social services, there have also been some awful examples, where the questions why things went so tragically wrong have rightly been debated. That is particularly true of the Victoria ClimbiĂ(c) case, but it is true of other cases too. With that background, Parliament must provide a legislative framework that establishes where the boundaries of legitimate care should lie and where there might need to be exemptions from the duty of care under the Bill, in order to give proper protection to those working in the difficult field of child care.

My concern is the same as that which has already been expressed, namely that the boundaries in the clause seem to have become much wider is necessary to give proper protection to those working in child care. Had the Bill been on the statute book at the time of the Victoria ClimbiĂ(c) tragedy, it is arguable that corporate manslaughter legislation might have been an appropriate legislative vehicle for prosecution of the authorities involved, but subsection (2) as drafted could had have the consequence of putting that possibility out of reach.

I know that that is not what my hon. Friend the Minister intends. I simply warn him that we face the potential for long-term public ridicule if, having established the legislation with good intention, we found that it could not be used in precisely the circumstances in which we would want it to be used. Hopefully, my hon. Friend the Minister can help the Committee and alleviate a common concern. He may have good and appropriate answers, but I hope that he can register the fact that, at present, it seems as though the provision may have been drawn a little too broadly.

Gerry Sutcliffe (Labour, Bradford South)

I welcome the debate and the consistency of the argument. The same points have been made repeated: the clauses are too wide and miss the mark of what we are trying to achieve. I am grateful to my hon. Friend the Member for Manchester, Central (Tony Lloyd) who said that we did not intend that to happen; clearly it is not. We have cause to look again at some issues, and I shall come back to them later. We have tried to make the case in relation to the police, and the fire and emergency services, but I accept and acknowledge the services dealt with in clause 8 are more difficult to deal with, if that is possible, because of the issues involved.

Members of the Committee have accepted the difficulty of dealing with children at risk in extraordinarily difficult circumstances. Local authorities and their partners do everything that they can to identify and meet the needs of children at risk of harm, but their success cannot always be guaranteed. Determining the best interests of a child requires a careful balancing of many factors. The courts have had real difficulties deciding what duties of care are owed by local authorities in such circumstances. They have found that it may well be inappropriate to subject a local authority to a duty of care in respect of decisions relating to taking children into care. That would, of course, mean that the offence would not apply. That is the sort of activity in which public policy and exclusively public function exemptions are also likely to have a role.

However, we do not want to leave residual uncertainty. Public authorities must be left in no doubt about their criminal liability. I have tried to be consistent throughout. I know that the hon. Member for Kingston and Surbiton (Mr. Davey) thinks that we have removed Crown immunity with one hand, but brought it back in with the other, but that is not our intention. We want to make sure that we take a significant step forward—that services are delivered in the way that we would expect and that public authorities know what their criminal liabilities will be. We do not want to encourage them to become risk averse, particularly in the field of child protection, with the possibility that children could be removed from their families unnecessarily on the one hand, or that the authorities might be less proactive in seeking out and tackling child abuse and neglect on the other hand.

The offence is not aimed at individual decisions and would apply to the organisation and management of child protection activities. However, we do not want the systems and procedures for making such decisions to be affected by the fear of investigation and prosecution. That could create an over-cautious view, affecting the fine balance that is needed in such decisions.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

Will the Minister give way?

Gerry Sutcliffe (Labour, Bradford South)

I want to pursue the points that have been made. I accept that the hon. Gentleman is consistent in his efforts to challenge me, but let me try to make the case and we can see where that leads.

We want to make sure that the decisions that are taken are advantageous and good for children and families. [Interruption.] I will give way first to the hon. Member for Kingston and Surbiton, after which I shall give way to the hon. Member for Beaconsfield.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

The reason why the issue of risk aversion does not apply to child protection services is that the decisions that are made on withdrawing children from their families go before courts anyway. External people are overseeing the decisions made by social workers and their partners. We already have a check, so the Minister should not worry that, by applying the offence to child protection services, it will make them any more risk averse or change the incentive structure. They rightly already have overseeing bodies, primarilythe courts.

Gerry Sutcliffe (Labour, Bradford South)

I accept what the hon. Gentleman is saying. The bodies and the framework that are in place for protecting and making local authorities accountable are helpful in such circumstances. However, consistent with the arguments that I have made in respect of other services, risk aversion is an issue that we have to face.

The hon. Gentleman is correct about the accountability framework for local authorities in child protection work. When children are killed, and abuse or neglect are suspected, serious case reviews are commissioned by the local safeguarding children board. Those reviews look in detail at the involvement of services with a child or young person. The focus is on how to learn lessons for the future. There is also a statutory requirement to report the deaths of children in local authority care to the Commission for Social Care Inspection and to the Secretary of State. In very serious cases of failure a public inquiry may be held.

Those are all rigorous, thorough and very public forms of accountability whose inquisitorial format allows a full picture of the failings that led to a death to emerge. All of the inquiries that I have described produce recommendations which drive improvements in the provision of services. That is the sort of accountability that the public services need—not prosecution under the criminal law.

Dominic Grieve (Conservative, Beaconsfield)

Does the Minister think that there might be an argument, in child protection cases, for distinguishing between, on the one hand, decisions to make a place of safety order or take a child into care and bring care proceedings and, on the other hand, decisions taken when a child is actually in care? Once a child is in care the public rightly take the view that there is a special responsibility. Is there not an argument to be made that if a child dies while in the care of a local authority the exemption should be lost?

Gerry Sutcliffe (Labour, Bradford South)

When I have concluded my remarks the hon. Gentleman will understand that I believe that there are indeed areas that we need to consider. As the amendment is a probing one, there are issues to which we need to return. However, I am trying to set outthe Government’s consistent approach on when exemptions are appropriate.

The hon. Member for Kingston and Surbiton asked about the lack of pre-legislative scrutiny of the provision. As an exclusively public function, child protection was excluded under the terms of the draft Bill. It was addressed, but there was no explicit exemption—that is the difference.

The exemption is not intended to exclude from the offence the services offered generally by local authorities to children and families. Once a decision has been taken to provide a service or to meet an assessed need—for example, home help for the parent of a disabled child, or accommodation for a child who is being looked after—management failure in providing or commissioning those services should be covered. Clearly, some decisions will be subject to the exemption for public policy decisions, such as decision on the range and level of services to be provided. Some services might be exclusively public functions, such as the review of plans for the future care of a child who is being looked after. However, the intention is that, subject to those limits, the offence should apply generally to services provided to children and families. Our intention is to focus on the particular difficulties raised by child protection responsibilities.

James Brokenshire (Conservative, Hornchurch)

An example springs to mind and I should be grateful for the Minister’s clarification of whether it would fall within the scope of the exemption. I am thinking of a decision to place a child who has been taken into care with foster parents. If systems were so flawed and manifestly appalling that checks had not been carried out on the foster parents, and if it were later discovered that they had committed offences against children in the past, would that gross failure be captured? That is the type of scenario that we are all keen to avoid. It may need to fall under the sanction of the Bill, to ensure that appropriate steps are taken to ensure that it does not happen.

Gerry Sutcliffe (Labour, Bradford South)

The hon. Gentleman is correct about our intention to cover such a situation. The question is whether the words in the Bill meet that intention. In the circumstances he describes, I would not want the exclusion to apply.

I acknowledge the Committee’s direction of travel, albeit I do not agree with it 100 per cent. None the less, I recognise the need to examine the exemption to confirm that it is adequate. My hon. Friend the Member for Manchester, Central said that we do not want to get into the ridiculous position of trying to achieve the Bill’s aims and objectives, but making a gross error in terms of exemptions. I do not see it that way. It is right for us to pursue the exemptions in the way that we have. The exemptions that we want, particularly on child protection responsibilities, are important. However, I would be happy to review whether we can frame the legislation in a more appropriate way, so that we do not cause the problems that have been described.

The hon. Member for Beaconsfield discussed probation service issues that are similar to those that we discussed in respect of the prison service. I hope that Committee will acknowledge the Government’s intentions and what we are trying to achieve. I am prepared to review the clause in the spirit of trying to be a bit more precise about what the exemption covers, and I hope that that guarantee will allow the hon. Gentleman to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his comments, and I will beg leave to withdraw the amendment. I fully acknowledge that this is a difficult area. At the risk of repeating what I said earlier, if there is a way to compartmentalise the different duties, the point to centre on may be the difference between the obligations owed to a child once it is in care and those owed to a child who is outside of care. I accept, however, that some would argue that those distinctions are rather artificial. After all, if a local authority is weighing up whether a child should go into care, one would hope that its decisions would be as sensible and its duties the same as if it actually had the child in its care.

We should consider that we are sending a message to the public about the duties incumbent on public authorities. Once the decision to take a child into care has been made and the court process has been gone through, what will happen if the child subsequently dies because of gross management failures within the organisation? My hon. Friend the Member for Hornchurch (James Brokenshire) gave the example of a child being placed with foster parents who kill the child. What if it could be clearly shown that there were danger signs, or if the child was allowed to visit its natural parents when there had been warnings that that might be dangerous for the child? I grant that those are still difficult areas for local authorities, but I believe that the public will be shocked by the idea that if there are gross negligence failures—that is what we are talking about, after all—it is not possible to prosecute the organisation concerned.

Edward Davey (Liberal Democrat, Kingston and Surbiton)

While I believe that the distinction that the hon. Gentleman makes may well have a great deal of power to it, and I hope that the Minister will reflect on it, let us remember that his distinction would not have catered for the Victoria ClimbiĂ(c) case.

Dominic Grieve (Conservative, Beaconsfield)

I entirely accept that, and that is why there is still an argument that the subsection should not be there at all, although, if I understand the wording of the Bill, we would have to do more than remove just subsection (2). We would also have to remove the public authority exemption to local authorities in child care cases and the probation service, although I have always said that that is a rather different issue. However, we must remove subsection (2), which applies to local authorities in child care cases. I would be willing to consider whether we should do that on Report.

Ian Stewart (Labour, Eccles)

It is good to see you in the Chair, Mr. Gale. In view of what the hon. Gentleman, in his deep concern about children in some social services situations, has just described, I put it to him that if there were such a serious breach, and if there were no exemption, there could be case for imprisonment.

Dominic Grieve (Conservative, Beaconsfield)

It is certainly technically possible. For example, if a social worker were to decide to allow a child who was in the care of the local authority to visit its natural mother, even though the social worker knew from the dossier in front of her that the natural mother’s boyfriend was a serious risk to the child, and if, having agreed to the home visit, she did not then put in any supervision but decided to go to the cafĂ(c) down the road to have a cup of coffee before picking thechild up two hours later, and the child on the home visit was murdered by the boyfriend, I have to say that I think that there might be an argument for a gross negligence manslaughter prosecution of the social worker under the existing law, albeit that that is a pretty controversial area in which to start to become enmeshed. Technically, I do not see that that would be impossible.

I had some difficulty following the hon. Gentleman’s argument about the introduction of personal liability for imprisonment in this context and I am not sure that I agree with him.

Ian Stewart (Labour, Eccles)

The hon. Gentleman is helping me and others to sort out our thinking on this complex issue, but let me press him on the next stage of the process that he outlined. I shall use his words. If there was gross negligence in that there was a systemic failure that would be the responsibility of the organisation or corporation, does it not follow that there should be at least the ability to consider the most serious sanction—that of imprisonment?

Dominic Grieve (Conservative, Beaconsfield)

No, is the answer. I disagree with the hon. Gentleman. As we debated earlier, I expressed my personal view that the Government were right not to try to introduce personal sanctions on managers for systems failures.

Manslaughter against individuals still exists as a charge, and we have to accept that we have created this offence to deal with the specific problem of prosecuting corporate bodies and that if one starts immediately to say that because the corporate body is guilty that should lead inexorably to punitive sanctions being placed on individuals in senior management roles, that is a step too far. It gives rise to a serious potential for injustice. I said that earlier, and however emotive the topic that we are discussing—it is very emotive—it does not change my view that the correct thing to do in such circumstances, if the breach by the individual is so grave, is that they should be prosecuted for manslaughter under the existing law. I do not think that one should say that the systems were so bad that someone should go to prison because they were part of the process by which those systems were bad. In any organisation, system failures are rarely down to one individual. A serious risk of injustice starts to arise when someone ends up carrying the buck for failures that should be further spread out.

Ian Stewart (Labour, Eccles)

At the risk of antagonising the Minister—[Interruption.] Yes, and the Whip. I put it to the hon. Gentleman that the question will still arise in the minds of citizens of this country of who is responsible. We cannot go past that without giving an answer. If we have an answer, we must also address the spectrum of sanctions.

Dominic Grieve (Conservative, Beaconsfield)

I agree with the hon. Gentleman that, following episodes or incidents of a kind that give rise to great disquiet, such as the death of any human being, because of what appear to be systems failures, the public become angry that individuals’ heads are not rolling. The criminal law, like anything else, can be a fairly blunt instrument and one should beware that one is not cutting off the heads of people who do not necessarily deserve to have them chopped. On the whole, in such settings, unless one can show specific criminal culpability at a level that would justify a manslaughter charge against the individual, I am reluctant to see people sent to prison for failures that might be due to negligence. We have a long history in this country of not jailing people for being negligent. We jail them for being grossly negligent, but not for straight negligence. That is a pretty good distinction to hang on to, and if we lose sight of it I fear that we will end up with a system that appears to be unjust. Perhaps in the short term members of the public will feel assuaged by the sight of a manager being sent to prison, but in the medium term it will not have a good impact. First, it will not succeed in changing the behaviour of managers, because we live in a world where all human beings make mistakes. Secondly, it is potentially unfair, because it is rare that one individual is to blame for a systems failure. If one person is wholly to blame, however, it is a good reason for prosecuting him for manslaughter in the first place.

Having been briefly diverted from what I was about to say, I beg to ask leave to withdraw the amendment.

Clause 9

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 137, in page 6, line 33, after ‘death’ insert ‘or serious injury’.

Amendment No. 137 seeks to provide that thejury should consider serious injury as well as death. Clause 9 is about the factors that the jury must take into account. Amendment No. 136, which I did not move, was linked to earlier amendments about whether the jury should decide everything, but it is no longer relevant because we have already had that debate.

Under subsection (2), the jury must consider whether the evidence shows that the organisation failed to comply with any health and safety legislation relating to the alleged breach and, if so, how serious that failure was—and, as things stand at the moment, how much of a risk of death it posed. An old trite saying at the criminal bar is that murder is grievous bodily harm with a corpse. The truth is that the risk of serious injury and the risk of death cannot be disentangled one from the other.

When deciding or assessing risk, organisations should consider the risk of serious injury rather than the risk of death. That is certainly how it has always appeared to me to be in health and safety practice. I was therefore a little surprised to see that subsection (2) concentrates on the risk of death rather than the risk of serious injury or of the two together. It seems to me that negligence arises once one starts to ignore serious injury, because death results from serious injury.

It is a simple issue. The Minister may be able to persuade me that the wording of the Bill is perfectly adequate, but I nevertheless move the amendment for the Committee’s consideration.

Gerry Sutcliffe (Labour, Bradford South)

In the draft Bill, we proposed that the jury should be required to consider the risk of death or serious injury when deciding on the question of whether a breach was grossly negligent. When giving evidence to the scrutiny Committee, Sir Igor Judge said that to include the risk of serious injury would mean that the test moved away from the current law. A number of cases have considered whether the test for manslaughter should consider the risk of both serious injury and death, and it has been decided that it should be risk of death alone.

It is hard to envisage circumstances in which a high risk of serious injury existed in which there was also a risk of death. If someone has died, there clearly existed a risk of death. However, we think it right that the jury should be asked to consider management failures against the risk of death that was posed, given that the offence will be one of homicide. We do not wish to suggest a different test from that used under the current law—nor, as the hon. Gentleman will appreciate, do we want to create a bonanza for lawyers.

If the jury considers the risk of serious injury to be relevant, it will be able to take that into account in appropriate circumstances. Subsection (4) ensures that the jury will be able to consider any other matter that it considers relevant, including the degree to which the activities in question posed a risk of serious injury.

I hope that that gives sufficient explanation of why we included the risk of death alone in subsection (2), rather than the risk of death and of serious injury. I hope that the hon. Gentleman will be satisfied with that and will withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

Far be it from me to question the reasonings of Sir Igor Judge. I was influenced by my experience of health and safety at work law, which centres on issues of injury and risk rather than the result of those, which may be death. However, the Minister has persuaded me and subsection (4) appears to cover the matter. I beg to ask leave to withdraw the amendment.

Clause 10

Tony Lloyd (Labour, Manchester Central)

I beg to move amendment No. 83, in page 7, line 16, after ‘convicted’, insert ‘or is found not guilty’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following amendments: No. 84, in page 7, line 18, at end insert ‘or’.

No. 85, in page 7, line 19, leave out ‘to have resulted from that breach and’.

No. 86, in page 7, line 26, at end insert

‘and may include reference to a person or persons, who are to be responsible for the specified steps being taken’.

No. 110, in page 7, line 32, at end insert

‘and a person referred to in an order in this section may be guilty of contempt, if the specified steps are not taken by the organisation in accordance with an order under this section’.

Tony Lloyd (Labour, Manchester Central)

There is a division of labour, but I think that Labour is united on this.

This group of amendments comes under two separable headings, but it might help the Committee if I started by talking about the Marchioness disaster. Committee members will recall that the salient facts were that in the early hours of the morning two boats collided on the River Thames. The collision happened because there was inadequate visibility in the boats’ wheelhouses and—I recall it well—the skipper of the Bowbelle, which rammed the Marchioness, failed to put a proper look-out on the bow of his boat, so a preventable accident was not prevented. The skipper was charged under the manslaughter laws with, I think, gross recklessness and manslaughter. The result was that, although the charges went to court, the case was not proven and the skipper was found not guilty on two occasions.

That case is important to bear in mind in respect of amendment No. 83, under which the court is invited, rather unusually, to take remedial action even if the defendant corporation is found not guilty. It is unusual to apply a remedy against an organisation that is found not guilty. Most people would say, in a common-sense way, that in the specific circumstances of the Marchioness, it is clear that a matter that could have had remedy went wrong. It would be ridiculous for us not to seek to provide a remedy, having established that such a remedy existed, and it would be even more ridiculous if we had no power to order the proper remedy because the charges were not provable in court against an individual or a corporation.

We know that cases have failed in court and not guilty verdicts have been given. In the case of the Marchioness there was no remedy. Under the clause as it is presently worded, it would have been impossible for the court to order proper remedy at a later stage. That is impact of amendment No. 83, which is important in its own right.

The purpose of amendments Nos. 86 and 110 is to recognise that an order made under the clause is made against an organisation or incorporated body. However, it is a matter of practical fact, and almost common sense, that for remedy to be actioned individuals must action it. There must be individuals in the incorporated body who will take those actions. If the incorporated body fails to take remedial action, there will be remedy against it. However, in a rather different way from the earlier debate between my hon. Friend the Member for Eccles (Ian Stewart) and the hon. Member for Beaconsfield about individual liability, we are seeking for individuals to be named by the court as those in the incorporated body who have the responsibility and duty of ensuring that that remedy is applied. Failure to act and to bring those remedies forward would result in individual liability, because where a remedy is ordered against an individual it makes sense for a penalty arising from a failure to act in that way to be against that individual.

There are two quite separate arguments about this group of amendments. Those that concern the first part of the clause are intended to ensure that the remedy applies where guilt is not proven. The other amendments try to ensure that when the court issues remedial action it has the capacity to ensure that it is implemented and that there is a penalty for failure to implement that remedy against those who so fail.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Member for Manchester, Central has entirely worthy objectives within the context of the remedial orders. The problem that I have—I have mentioned it before, but this is a good time to mention it again, because we are now discussing the relevant clause—is that there is a big question mark over the entire framework of remedial orders in the Bill.

As I think I mentioned on Second Reading, a serious accident that leads to death will, irrespective of a prosecution under the Bill, be investigated by the Health and Safety Executive or, potentially, by a local authority through its health and safety inspectors. A panoply of powers is available to the HSE and those inspectors in respect of deficiencies, which include the power to issue a prohibition notice, which says that a particular method of operation must cease completely, or an improvement notice, which says that a body must carry out certain improvements to its procedures within a set period of time, or in some cases a mixture of the two.

Given my experience with manslaughter cases and cases of similar seriousness, and the likely numbers of such cases in any year that will come to trial many months after the incident took place, it is most improbable that there will still be anything to be remedied by the time such a case reaches trial. That is my initial gut reaction. If there is still something to be remedied by the time the trial takes place, the HSE or the local authority has not done its job properly, which is a worrying phenomenon. However, it is my experience that the issue will have been dealt with.

I also point out to the hon. Gentleman that the HSE’s powers to impose prohibition or improvement notices is quite independent of whether somebody is guilty of a breach of the Health and Safety at Work, etc. Act 1974. If those on the receiving end of such notices do not like them, their remedy is to appeal them to the employment tribunal, where the dispute is thrashed out. I have done such cases at the employment tribunal and I can assure the hon. Gentleman that the notice will bite until it is removed. There is no question of a company or a corporate body saying, “Oh, let’s appeal this to the employment tribunal, because in the meantime we can carry on with our practice until we are told that we have to stop it.”

Ian Stewart (Labour, Eccles)

Rather than making play of the issue, I should point out that although we certainly understand the hon. Gentleman’s rationale, the number of cases where inspectors have issued notices are relatively low.

Dominic Grieve (Conservative, Beaconsfield)

That may be true. One could argue that the HSE or local authorities certainly are short of staff to go round inspecting premises and slapping on the necessary orders. I am sure that if there were more inspectors, more prohibition and improvement notices would be served. However, my experience is that, where someone has died, which is what we are talking about, the situation is gone over with a fine-toothed comb, so I would be startled if, following that, prohibition and improvement notices were not imposed if they were required. Often, of course, when one is dealing with companies with any sense of responsibility, they move pretty quickly themselves to remedy any breach. Sometimes, in co-operation with the Health and Safety Executive or the local authority, they remedy the breach themselves, so that no notice ever has to be served.

I have two problems with the amendments. First, amendment No. 83 proposes a procedure whereby if there is a criminal trial at which someone is found not guilty, a remedial order is still imposed. We will not know the circumstances in which a not guilty verdict is returned. It may be after a full hearing, when the judge has had an opportunity to consider the matter and hear all the evidence, but it could happen, and sometimes does, at a much earlier stage of a trial, when the judge has had absolutely no ability to evaluate all the facts of the case. In those circumstances, unless the judge converts himself into an equivalent of the employment tribunal dealing with the prohibition or improvement notice procedure, he will be ill placed to deal with the issue in court.

One of the wider criticisms that I have of clause 10—we could deal with it in a clause stand part debate, but we can deal with it just as easily now—is that it is unclear who will supervise and monitor the imposition of remedial orders and who will provide the expert input to the court about the remedial orders that may or may not be necessary. Let me make the position clear: I am not saying that that cannot be done, but it will need the active participation of health and safety inspectors from either the HSE or local authorities.

The blunt truth is that I question whether clause 10 has any real value at all. I am sorry to have to say that to the Minister. The attempts—worthy attempts, if I may say so—by the hon. Member for Manchester, Central to beef it up seem to run into the practical difficulties that I have identified. It would be interesting to hear from the Minister how he really thinks the clause 10 regime will work.

I have a couple of amendments, which are due to be considered later. I may be able to short-circuit that discussion by saying that they would remove the word “prosecution” and insert “Health and Safety Executive”, precisely because it seems to me that the prosecution is in no position to make applications for remedial orders generally unless the HSE or some other responsible organisation is there to advise them.

Roger Gale (Conservative, North Thanet)

If the Minister wants to respond to that and if the Committee is happy, I am, again, perfectly content to consider those amendments as part of this group.

Gerry Sutcliffe (Labour, Bradford South)

Thank you, Mr. Gale. I agree with the hon. Member for Beaconsfield that my hon. Friend the Member for Manchester, Central had a worthy objective in proposing his amendments. I understand the spirit that he is trying to generate in relation to them.

Clause 10 enables the court to order an organisation convicted of the new offence to take steps to put right the management failure that caused a death. It also allows the court to remedy any consequence of that management failure if the court believes that it, too, was a cause of death. For example, if the convicted company failed to put in place adequate systems for monitoring the safety of its activities, and the consequence of that was dangerous practice on the shop floor, the court would be empowered to order changes both to the systems and to the practices that led to the fatality.

We expect the use of remedial orders to be relatively uncommon after a conviction, for the reason that the hon. Gentleman gave—regulators would already have acted. However, it would still be useful to enable a court to add its weight to the necessary measures that a convicted defendant needs to take to put its house in order.

Amendment No. 83 is designed to extend those powers, so that courts can impose remedial orders on organisations that have not been convicted of corporate manslaughter. It is an extremely unusual step to impose a court order on a defendant who is not convicted of a criminal offence. I understand the point that organisations may carry out practices that, although not grossly negligent and warranting a conviction under the new offence, are not safe. However, organisations that have been investigated and subsequently prosecuted for corporate manslaughter will have been thoroughly scrutinised—long before the trial, hopefully—by the relevant regulator.

For example, the Health and Safety Executive is empowered to issue improvement notices and prohibition notices that require illegal or unsafe practices to be remedied. Failure to comply can result in prosecution, leading to imprisonment and fines of up six months or £20,000 in the magistrates court and two years or unlimited fines in the Crown court. Other regulators have similar powers. Unsafe practices are therefore likely to have been identified and addressed prior to the trial.

It is also worth noting that an organisation acquitted of manslaughter may be convicted on health and safety offences, in which case remedial orders would still be available to the court. We therefore believe that there are sufficient opportunities to intervene in organisations to ensure that unsafe practices do not continue without extending what is intended to be part of the response to a criminal conviction to an unconvicted organisation.

Amendment No. 86 is designed to make it possible for a court to identify individuals who will be responsible for ensuring that the remedial order is complied with. Amendment No. 110 specifies that any person named in an order may be guilty of contempt of court if the company fails to take the steps set out in the order. The penalty for that would be up to two years’ imprisonment or an unlimited fine. The effect of that would be essentially to impose a sanction on an individual for the faults of a company, a concept that my hon. Friend will pursue later. I am uneasy about the implications of that.

Although I accept that there is concern to ensure that organisations take remedial orders seriously, the proposal raises several questions. First, how does the court decide on whom to impose the order? One solution might be to impose it only on those who have health and safety responsibilities, but that might have the perverse effect of discouraging people to take on responsibility for such a crucial part of an organisation’s functioning. Alternatively, the order could be imposed on all directors. However, it is not clear how the court would deal with the fact that some directors may be in a better position to control compliance than others. There is also the matter of what happens if named people leave the company.

We want organisations to comply with remedial orders when they are made, which is why we have made the consequence of not complying with an order more serious than was the case under the draft Bill. Breach of the order will be heard in the Crown court, not the magistrates court, and we have raised the penalty for non-compliance to an unlimited fine.

Tony Lloyd (Labour, Manchester Central)

I seek some information from my hon. Friend. Obviously, the measure is technical and important. Under the Health and Safety at Work, etc. Act 1974, the prohibition notices that are imposed on a company stop the work process. If the company continues to work and breaches the order, is the remedy operated against the company or against the individual?

Gerry Sutcliffe (Labour, Bradford South)

As my hon. Friend said, the matter is technical. The 1974 Act certainly gives the opportunity to send individuals to prison for breaches and consistent breaches of their obligations. We know what he is trying to achieve by holding individuals to account but, like the hon. Member for Beaconsfield, I do not think that it is right to take the action set out in the amendments. We will talk about corporation probation and other issues later. I ask my hon. Friend l to withdraw his amendment, having put on the record the issues that it raises.

The hon. Member for Beaconsfield referred to amendments Nos. 141 and 142. They would mean that the Health and Safety Executive, as opposed to the prosecution service, would make applications for remedial orders. I see merits in that proposal and will deal with the wider point about regulator involvement in a moment. I wish first to explain why I shall not be supporting the amendment.

The Health and Safety Executive will not always be the appropriate regulator. It may be that the Food Standards Agency is the relevant regulator, or the Office of Rail Regulation, so limiting the role to the HSE is not apt. That, of course, can be remedied, but whichever is the appropriate regulator, the prosecution service will bring the case and the regulator will only have limited formal involvement in the trial. It would not be appropriate to give it a formal role at this stage.

We fully expect the prosecution to liaise closely with the relevant health and safety authority prior to making any application. It will then be open to the convicted organisation to make representations to the judge about the order, and to present any evidence that the order would be inappropriate or unnecessary. We think that that will provide sufficient safeguards against misguided orders.

The Bill does not make specific provision for monitoring compliance with remedial orders. However, the relevant enforcing body such as the Health and Safety Executive will have a strong interest in ensuring that safe practices are adopted in a convicted organisation. We are therefore confident that, as well as being involved in the drawing up of remedial orders, regulators will be fully engaged in monitoring compliance with such orders, without the Bill making specific provision in that respect.

I hope that that provides the answers sought by the hon. Member for Beaconsfield in relation to amendments Nos. 141 and 142, and that my hon. Friend the Member for Manchester, Central will withdraw his amendment.

Roger Gale (Conservative, North Thanet)

In view of the situation that I have created, I invite Mr. Grieve to speak.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful, Mr. Gale and I hope that not too many problems have been caused by short-circuiting a debate on my closely linked amendments. The Minister has reassured me sufficiently, so I shall not press those amendments to the vote; they were probing amendments anyway.

The Minister has acknowledged that the expertise lies with the regulatory authorities—that is quite clear. It is therefore obvious that if the remedial orders are to have any value, the regulatory authorities will have to provide input at the beginning, advise the prosecution, and monitor compliance, though I accept the Minister’s point that the relevant authority will not necessarily be the HSE. Regulations will have to be made by the Government to ensure that that happens. It may seem obvious that it should happen, but I sometimes think that without a statutory obligation and responsibility it is amazing how much organisations are willing to wash their hands. It may not be a matter for primary legislation, but I suspect that regulation will be necessary.

There is another matter, which I have mentioned in a wider context, which applies to remedial orders and to prosecutions generally. The Crown Prosecution Service, and the police, are ill equipped to deal with technical prosecutions in the field of health and safety; they do not really know what they are doing. I have been persuaded of that by the one or two occasions on which I have seen a prosecution happen after investigations of possible corporate manslaughter as it currently exists—with individual directors’ liability. The trouble is that the CPS and the police tend to take the lead over the HSE and the enforcement authorities because, in the hierarchy of things, manslaughter is perceived as more serious than a breach of the Health and Safety at Work, etc. Act 1974.

The result is that interminable interviews take place at police stations, in which the interviewer is not the person who really knows the issues. The anecdotal evidence is that that person—the HSE inspector or the local authority inspector—sits on a chair in the corner, with his eyes rolling to the ceiling, thinking, “Can’t we get on with it? This person isn’t asking the right questions.” That problem goes right through the entirety of the prosecution machinery in the Bill, but it applies particularly to remedial orders. Deciding which such order is appropriate will require the closest involvement of the relevant enforcement agency. The Government will need to make quite clear to those agencies what they have to do, and will also need to make clear to the CPS that the agencies will be, if not equal to the prosecution, very important players in the process.

Tony Lloyd (Labour, Manchester Central)

I have enormous sympathy with the points that the hon. Member for Beaconsfield has just made. However, although I understand his and the Minister’s arguments, which are powerful, a problem in our society is that even regulatory authorities have not always done their job properly. Sometimes, even in doing part of the job they have not gone as far as the public may have expected. The railway industry is a classic example, and over the years I have been known to say one or two unkind things about the railway inspectorate. In his summing up in the Hatfield disaster, for example, the judge observed that it was

He said it was,

“the worst example of sustained industrial negligence in a high-risk industry”

It is an industry that has its own regulator, but that regulator failed to act in a satisfactory way to protect the travelling public. That is an important point to bear in mind if we say that the prohibition system as it exists must always work.

Ian Stewart (Labour, Eccles)

I distinctly remember being shocked that the 1974 Act was, to my knowledge, the first Act to allow the police to enter a site. The purpose of the Act was, in cases where something was so dangerous that it could not be dealt with by the regulatory approach, to give the police the power to go on to a site to save life. We must remember that although we are interested in process, this is a very complex area—hon. Members who have argued with me about prevention rather than remedy should remember that.

Tony Lloyd (Labour, Manchester Central)

My hon. Friend makes a good point. All legislation of this kind is better if it is part of prevention rather than remedy, but when things have gone wrong and can no longer be remedied, we need to examine how to build in a remedy. A man called Kenneth Farr was decapitated by an unsecured car park barrier at Asda in Cardiff; a similar accident happened at another Asda car park that resulted in a prosecution and a fine, but the regulatory authorities failed to insist that they brought in a proper remedy.

Much as I respect regulatory authorities, they do not always get it right. It may sometimes be appropriate for the court to be involved, which is obviously why I support my hon. Friend’s amendment seeking to give the courts that capacity. There may be circumstances in which that is necessary although it may be rare in cases of corporate manslaughter that the remedy has not already been properly actioned. When that remedy is needed it is helpful to give the court that power.

I will seek leave to withdraw the amendment, but I hope the Minister will reflect on two things. First, the reason I asked him about the operation of the 1974 Act is that under that Act a remedy can be applied against individuals where the company fails to act on a prohibition order or the equivalent. The Minister confirmed my belief in that respect. The comparison to the amendment we have sought to move is a real one. Will the Minister reflect on that as it may not be the right way of doing it but we should at least consider it quite carefully?

Secondly, I do not think the hon. Member for Beaconsfield heard me earlier when I mentioned the Marchioness tragedy and made the point that a prosecution was taken forward. The prosecution failed, but it was clear at the end that there should have been remedies applied. Although it may be unlikely that by that stage of other cases, the remedy would still be lacking, if it were lacking, it would be sensible in the final analysis for the court to make an order imposing the remedy—even if the prosecution has failed. I hope the Minister will think about what lies behind these amendments. In recognising the time of day and the will of the Committee, I beg to ask leave to withdraw the amendment.

Roger Gale (Conservative, North Thanet)

For the record, I confirm the Chair’s understanding that amendment Nos. 141 and 142 have been dealt with, which leaves us with only amendment No. 138 to clause 10 to deal with.

Further consideration adjourned.—[Mr. Alan Campbell.]