Services "provided"
by the state
240. In Chapter 5, we discussed the Government's
use of the term "supply" in the list of relevant duty
of care categories in order to expressly exclude certain services
"provided" by public bodies. There we recommended that
any exemptions in the draft Bill should be made explicit, as with
the three exemptions already discussed above. One example of a
service that would fall into the category of being "provided"
and not "supplied" would be police and fire service
operations. (As discussed in para 213, there is uncertainty whether
these might also fall under the term "exclusively public
function".) We discuss this particular exemption below.
THE OPERATIONAL ACTIVITIES OF THE
POLICE AND FIRE SERVICES
241. The Association of Chief Police Officers (ACPO)
and the Association of Principal Fire Officers (APFO) agreed with
the Government that their operational duties should be exempt,
arguing that their operational environment placed them in a unique
position compared to other public bodies. Both organisations pointed
out that their operations entailed a high degree of risk. ACPO
wrote: "Policing is often a very dangerous business".[297]
APFO gave an example of a case in Greater Manchester where the
fire service was called:
"The fire tender had been called to a lake
where a young person was in the lake swimming with his friends
and went under the water
The friends pointed out where they
had last seen their young friend. The fire officer tied a rope
around his waist and swam out while his colleagues, on the side
of the lake, held on to the rope. The fire officer swam around
and dived under the water looking for this young person but could
not find him. He then asked the crew to pull him back and they
pulled him back but the line had sunk just beneath the water and
it snagged on a branch, unbeknown to him and the crew. The result
was he drowned
This is the operational environmental in
which the fire and rescue service operates".[298]
242. Both organisations expressed concern that extending
the offence to their operational activities could lead to a risk
averse service with possible dangerous consequences for members
of the public. APFO, for example, added:
"The concern of the fire and rescue services
is that there will be a risk-averse approach to these types of
incidents. What you will instruct, in Manchester for example,
is when you arrive at the side of the lake you do not enter that
water until a boat arrives and so the crew will be formally instructed
by their senior management not to do that until a boat arrives".[299]
243. However, the Centre for Corporate Accountability
was critical of the arguments given for this exemption:
"We would like to point out a serious contradiction
in ACPO's response. It says that it is happy to comply with health
and safety law - and there must therefore be an assumption that
health and safety law compliance does not cause any particular
problems of risk averseness. ACPO also notes that individually
and organisationally the police are willing to be held account
for health and safety offences. If this is the case, then it is
difficult to see what are the particular problems that the police
would face in relation to the new offence. If they seek to comply
with health and safety law - then they have nothing to fear from
the new offence and it is difficult to see what additional risk
averseness would exist. Senior police officers would simply have
to ensure that their force complies with existing health and safety
law - as presumably these senior officers seek to do now".[300]
244. The Police Federation of England and Wales took
a different view to ACPO. It believed that all aspects of policing
should be capable of being liable to the offence. In oral evidence
Mrs Jan Berry, Chairman of the organisation, gave a strong argument
by analogy that overall an extension to operational activities
would have a positive impact if it was accompanied by appropriate
education:
"it is not to do with death but I think
it demonstrates the point. Stop and search is something which
has attracted a fair amount of attention and I do not think there
is any doubt that a lot of police officers stopped using stop
and search in circumstances where it may have been more appropriate
because of the fear of action being taken against them. There
was some work undertaken in one part of the country where they
actively trained police officers in stop and search powers. Following
that piece of training the powers were used far more effectively
than they ever had been previously and therefore the quality of
the searches was much better. The arrests that came from them
was much better. If you are a learning organisation, if you make
sure that your training is right and use the operational experience
to good effect later and you train people properly, risk aversion
does not have to be taken into account".[301]
245. We are concerned by the possibility that
the inclusion of police and fire operational activities might
lead to a culture of risk averseness. However, this could be countered
by effective education. We believe that the Bill should be drafted
so that emergency services' operational activities are only liable
for the offence in cases of the gravest management failings.
242 On the basis that legislation is made by the Sovereign
in Parliament for the regulation of Her subjects, not Herself. Back
243
Home Office, Reforming the Law on Involuntary Manslaughter: The
Government's Proposals, May 2000, para 3.2.8 Back
244
Home Office, Corporate Manslaughter: The Government's Draft Bill
for Reform, Cm 6497, March 2005, para 38 Back
245
Revitalising Health and Safety: Strategy Statement, June 2000,
Action Point 15 Back
246
See for example Volume II, Ev 9, 18, 24, 31 and 133 Back
247
Volume II, Ev 24 and 62 Back
248
Volume II, Ev 312 Back
249
Volume II, Ev 312 Back
250
Volume II, Ev 90 Back
251
Volume II, Ev 24 and 313 (Articles 2, 13 and 14 of the European
Convention on Human Rights) Back
252
Volume II, Ev 312 Back
253
Volume III, Q 454 [Ms Ireland] Back
254
Volume II, Ev 32 and 164 Back
255
Clause 4(1) and (4) Back
256
Volume II, Ev 141 Back
257
Volume II, Ev 186 and Public Administration Select Committee,
Fourth Report of 2003-04, Taming the Prerogative: Strengthening
Ministerial Accountability to Parliament, HC 422 Back
258
Volume II, Ev 186 Back
259
Volume II, Ev 187 Back
260
Home Office, Corporate Manslaughter; The Government's Draft Bill
for Reform, Cm 6497, March 2005, para 6 Back
261
Volume II, Ev 24. See also Volume II, Ev 103. Back
262
Volume II, Ev 313 Back
263
Volume II, Ev 142 Back
264
Volume III, Q 113 [Mr Caplan] Back
265
Home Office, Corporate Manslaughter: The Government's Draft Bill
for Reform, Cm 6497, March 2005, para 22 Back
266
Ibid Back
267
Volume III, Q 424-425 [Mr Stoddart] Back
268
Volume III, Q 464 [Ms Ireland] Back
269
Volume II, Ev 84 Back
270
Volume III, Q 464 Back
271
Volume III, Q 452 [Ms Berry] Back
272
Volume II, Ev 283 Back
273
Volume III, Ev 121 Back
274
Volume II, Ev 313 (Barbato v. Uruguay, Communication No. 84/1981,
UN Doc Supp No. 40 (A/38/40) at 124 (1983)) Back
275
Volume III, Q 468 [Ms Ireland] Back
276
Joint Committee on Human Rights, Third Report of Session 2004-5,
Deaths in Custody, HL Paper 15-I, HC 137-I Back
277
Deaths in Custody, para 41 Back
278
Deaths in Custody, para 370 Back
279
Clause 4(4) Back
280
Clause 4(2) Back
281
Home Office, Corporate Manslaughter: The Government's Draft Bill
for Reform, Cm 6497, March 2005, para 23 Back
282
Volume II, Ev 46 Back
283
Volume II, Ev 103 Back
284
Volume II, Ev 36 Back
285
Volume II, Ev 158 Back
286
Volume III, Ev 120 Back
287
Clause 10 Back
288
Clause 10(3) Back
289
Clause 10(3) Back
290
Home Office, Corporate Manslaughter: The Government's Draft Bill
for Reform, Cm 6497, March 2005, para 40 Back
291
See for example, Volume II, Ev 79. Back
292
Volume II, Ev 57 Back
293
Volume II, Ev 158 Back
294
Volume II, Ev 314 Back
295
Volume II, Ev 142 and 159 Back
296
Volume II, Ev 120 Back
297
Volume III, Q 403 [Mr Stoddart] Back
298
Volume III, Q 412 [Mr Pritchard] Back
299
Volume III, Q 417 [Mr Pritchard] Back
300
Volume III, Ev 120 Back
301
Volume III, Q 461 Back