Mr.
Sutcliffe: As the hon. Gentleman said, amendment No. 135
would remove the requirement for the judge to decide whether a duty of
care is owed. I am no lawyer, and, like the hon. Member for Kingston
and Surbiton (Mr. Davey), neither do I aspire to be one, but
I do not wish to be disrespectful to lawyers. [ Interruption.] On
this occasion I do not wish to be disrespectful to them.
For the benefit of the
Committee, I shall go through this information as slowly as possible,
as it contains my legal advice from the Home Office. If there is a need
to challenge it, I am sure that the hon. Member for Beaconsfield will
do that. I understand
that in a handful of gross negligence manslaughter cases involving
individuals, the point relating to the judge’s involvement has
been considered. The position generally seems to be that it is for the
judge to decide whether, legally, a duty of care could exist in the
case, and for the jury to decide if one arose. In at least one case,
the judge decided the matter and directed the jury that a duty existed
as a matter of law. To
step back for a moment, I should emphasise that we doubt that this will
be a specific issue for many prosecutions. The vast majority of the
duties of care relevant to the offence are well established—for
example, the employer’s duty of care to employees—so
resolving the question of whether a duty was owed will be relatively
straightforward. If there is doubt, the categories in the Bill will
assist in determining whether a case should be brought, so the question
will be more complex in only a small number of
cases. Generally, the
duties that organisations owe will be considered and decided in the
civil courts, where it will be the judge who settles the issue, as
juries are not involved in civil negligence actions. That means that
the question will primarily be a legal one, decided by reference to
case law. We think that it is more sensible to require the judge to
decide, in the same way that he would decide any other matter of law in
the case. It also means that there will be consistency between civil
and criminal law in this area, and that is important. Duty of care
forms an important part of the regulatory framework for organisations,
and it would not be sensible for organisations to owe a different set
of duties for the purpose of this
offence. That approach
will not affect the position in manslaughter cases involving
individuals, where the question will remain with the jury. In those
cases, the jury will decide whether a duty is owed between two or more
individuals. In some cases, the decision will be
straightforward—for example, the duties that parents owe to
their children—but if the position is more complicated, the
question will still be one of whether a particular individual owed a
duty of care to another; for example, whether one drug user owes
another a duty in relation to drug
use. Subject to the
judge first deciding whether the facts are capable of giving rise to a
duty, a jury of ordinary people will be in a strong position to assess
the situation. The question of consistency with the civil law is less
important because negligence actions against individuals are less
common and duties of care do not provide the same regulatory framework
for people as they do for organisations. That is the basis of the
position so far. The
hon. Member for Beaconsfield and my hon. Friend the Member for
Manchester, Central raised various issues. My hon. Friend’s
concern is that cases such as that of the cockle pickers might not be
covered because the Bill links the new offence to owing a
duty
of care in the civil law of negligence, and liability can be precluded
in the civil law between people engaged in criminal activity. We
considered that civil law principle, which is known as ex turpi causa
non oritur actio—or something near that—when responding
to the joint report of the Home Affairs and Work and Pensions
Committees. Our view is that the doctrine, which operates as a defence
to a civil claim, would not prevent a duty of care from being owed for
the purposes of the new
offence. The
Court of Appeal in Wacker decided that the doctrine had no application
to manslaughter even though the necessary ingredient of gross
negligence manslaughter existed, but that there had been a breach in
the duty of care under the ordinary principles of negligence. We are
satisfied that that would be no major obstacle in such cases.
The hon. Member for
Beaconsfield asked what discussions there had been with the judiciary
about the proposals. There has been extensive consultation on all
aspects of the Bill, and this one in particular. Sir Igor Judge gave
evidence to the scrutiny Committee and I know that judges have raised
the matter with us.
The hon. Gentleman asked how
splitting the role of the judge and jury will work in practice. As he
knows, the Bill contains no special provision for that, and we are
satisfied that none is required. Criminal proceedings will often
involve questions that need to be decided by the judge as a matter of
law and this matter will fall to be decided in the same way. It is
worth remembering that in the majority of cases whether or not a duty
existed would be a straightforward matter—for example, when the
person killed was an employee or a train passenger. In cases of
uncertainty a defendant can apply before the case reaches the court for
it to be dismissed on the grounds that there is no case to answer. If
it is not dealt with then, it can be raised as a preliminary point at
the start of the proceedings in the way that points of law generally
can be raised for the judge to consider. In the vast majority of cases,
it should be straightforward. I hope that that helps the hon.
Gentleman, and that he will be happy and content to withdraw his
amendment.
Mr.
Grieve: I am grateful to the Minister, and he has gone a
long way towards reassuring me. I certainly did not intend to press the
matter to a vote. I shall go away and reflect on whether I am
completely happy and if not I shall come back to the matter on Report.
I should make it quite clear that this is a matter of practicality. It
is not some big issue of principle for me, much as I like jury trial,
and as long at the jury has the final say on whether there has been a
breach I am content with the slightly unusual role of the judge. I was
interested to hear, and was not aware, that a judge had on at least one
occasion usurped the jury’s role in a gross negligence
manslaughter prosecution by giving it direction of law as opposed to
telling it what the law was and hinting at the probable outcome of what
it should decide. That is not improper in itself. I beg to ask leave to
withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause 3 ordered to stand
part of the Bill.
Clause
4Public
policy decisions, exclusively public functions and
statutory inspections
Mr.
Grieve: I beg to move amendment No. 43, in
page 3, line 22, after second
‘a’, insert
‘ministerial’.
The
Chairman: With this it will be convenient to discuss
amendment No. 44, in page 3, line 37, at
end
insert— ‘“ministerial”
means a decision made by one or more Ministers of HM Government,
Scottish Ministers, Welsh Ministers or Northern Ireland
Ministers;’.
Mr.
Grieve: We now come to rather an important and potentially
controversial bit of the Bill, although again I should make it clear
that these are probing amendments and I am interested in trying to
tease out exactly what the Government intend so that we can decide
whether we think that they are going far enough or too far.
Amendment No. 43 would exclude
only ministerial decisions from the public policy decisions that might
be made by officials, and amendment No. 44 goes on to define a
ministerial decision. Clearly, one of the issues that has given rise to
some anxiety in the course of the passage of the Bill is whether it is
giving the Government an easy time and whether they have wriggled off
the hook of their potential responsibility for corporate manslaughter
by limiting the way in which the duty of care operates in clause
four. I will read the
clause again, because it is important to have it in
context: “Any
duty of care owed by a public authority in respect of a decision as to
matters of public policy (including in particular the allocation of
public resources or the weighing of competing public interests) is not
a ‘relevant duty of care’.”
At what point does a decision become a
matter of public policy rather than a matter of, for instance,
management in the allocation of resources? That is what we need to
concentrate
on. 4.30
pm I completely
accept that if we start including public policy decisions within the
scope of the Bill—although there are some purists who would like
that to happen—it would make the management of government
impossible. There are financial constraints on government which mean
that Governments must sometimes make decisions that have a potential
impact on people’s well-being. Obvious examples include, for
example, the way that the National Institute for Health and Clinical
Excellence decides to ration or allocate drugs such as anti-cancer
drugs—an example that we have heard a great deal of in the last
two or three weeks—or the availability of fire engines and fire
appliances, and whether one can meet the settled criteria for getting
to a fire on time. One can think of all sorts of other examples, and
not only in the field of emergency services—I should make that
clear, because they are covered by other aspects of the Bill.
There needs to
be some understanding of where the dividing line lies in the activities
of the public authority concerned. For example, if the Government
decide that they must cut the budget of one of their organisations,
many of which are listed in the schedule to the Bill, and one of the
consequences is that some health and safety training previously thought
to be appropriate does not take place and an accident happens on the
premises, where does the fault lie? What happens if, for example, those
who run the organisation concerned say, “This is all very well:
you’re prosecuting us, but it was a decision taken ultimately by
the Minister.”? That is one possibility. If we exclude the
Minister, the decision could have been taken by officials very high in
the Department. The
amendment aims at that precise issue. The reality is that Ministers do
not take day-to-day decisions about running Departments. If they do,
all that I can say is God help them if they have got themselves into
that mess. Equally, one picks up anecdotal evidence—I am sure
that every Committee member is aware of it—that decisions taken
quite low down the chain, particularly within Government, often seem to
be the result of some emergency or problem that has arisen and has led
to permanent under-secretaries picking up the telephone and saying that
something will be done in a particular way. If that is the case, is it
a public policy decision or is it a managerial decision with a direct
impact? That is the question for the Committee.
The amendment is probing,
because I accept that when we get to the point of public policy, if we
start to prosecute people for getting their policy wrong, the rule of
the judges is truly upon us. I am not sure that that is a good idea.
None the less, we need to know where the dividing line
is.
Mr.
Sutcliffe: As the hon. Gentleman said, the amendment
brings us to our first discussion on the important topic of exemptions,
which I am sure we will debate fully as the Committee progresses. For
the moment, I will confine myself to the specific details of the
proposed amendment, in the expectation that we will discuss the wider
context in due course.
Clause 4(1) deals with
decisions of public policy taken by public authorities. Public
authorities are defined by reference to the Human Rights Act 1998 and
include Departments, local government bodies and other bodies whose
functions are public, such as primary care trusts. The clause will
exempt from the offence high-level decisions concerning the allocation
of resources, the weighing of competing interests or the establishment
of priorities. Examples might be a decision by a primary care trust not
to fund a particular treatment or a decision by a local council to
allocate its resources in a particular way. As those examples
demonstrate, such decisions are not confined to Ministers, but might be
made by a wide range of public authorities.
The amendment would have a very
undesirable consequence. The courts have already recognised that such
decisions taken by public authorities are not suitable for review in
the courts. In most cases, therefore, no duty of care would be owed in
respect of such activities. The purpose of the exemption is not to
exclude activities that would otherwise be covered by the new offence,
but to provide clarity about what is and is not covered. The amendment would remove that
clarity. If it were agreed to, the Bill would suggest that only
ministerial decisions were exempt, although in reality a duty of care
would not be owed in a much wider range of circumstances. The result
would be that public authorities would not be clear about the
application of the new offence in respect of public policy decisions.
There would therefore be a risk of encouraging an overly defensive or
cautious approach in those seeking to safeguard the public from risk or
danger. We do not believe that that would be in the public
interest. The hon.
Gentleman made reference to the management of resources; I must make it
clear that the exemption is not about that. Once a public body has
embarked on a particular activity, it must fully observe its safety
responsibilities and cannot plead lack of resources as a defence. The
exemption does not change that. Nor is it the case that the exemption
prevents public authorities being accountable for their decisions.
Public bodies often hold special authority or perform functions that
the private sector does not or cannot do on its own account. Due to
that and the fact that such bodies operate on behalf of the public,
they are already subject to a strong and public framework of
accountability, such as public inquiries and other independent
investigations.
Clause 4(1) makes it clear that
public bodies will not be liable for their decisions that are
underpinned by considerations of public policy. The issue is not
confined to ministerial decision making. I hope that, with that
clarification, the hon. Gentleman will withdraw his probing
amendment.
Mr.
Grieve: Yes, I shall ask leave to withdraw my amendment,
but I leave the Minister with one thought—he may want to write
to me about it. I do not claim huge expertise in the field of judicial
review, but it seems to me that the Minister is right to say, as a
generality, that the courts have refused to interfere with public
policy decisions. When he identified that as the dividing line, that
had resonance for me and made sense.
I wonder
whether the Government have thought about one issue. As the Minister
knows, the concept of areas in which courts are prepared to interfere
is flexible and can develop over time. For example, the Human Rights
Act 1998—or rather the European convention on human rights,
which the 1998 Act did no more than incorporate—provides for a
right to life. One need only read academic treatises by academic
lawyers nowadays to note that there is considerable speculation about
the extent to which that right is starting to raise obligations on the
state to maintain life, as opposed to imposing prohibitions on taking
it except in certain circumstances. Those very decisions are often
public policy issues, into which, as the Minister rightly said, the
courts refuse to stray. However, I do not think that we can entirely
rule out the notion that we might find them moving into such
areas.
We are
already on that cusp in relation to matters such as the withdrawal of
treatment to people who are dying, even when the issue under
consideration is not euthanasia but the point at which one need not
strive officiously to keep alive. The tendency may be widened
over time. If the courts start saying that, under the 1998 Act, judicial
review might intrude into such areas, would it follow that such areas
would be removed from the public policy sphere and that Government
Departments or public authorities would be open to prosecution for
corporate manslaughter? The
Government may have already carefully considered that point, but it
would be useful to have a response as to the way in which they envisage
the provision working before this Bill goes on the statute book. Would
a court decision, so removed from the field of corporate manslaughter
that it could look at a particular area of Government
policy—such as in the operation of the European convention on
human rights—have the immediacy of triggering, as a consequence,
a duty under this
Bill?
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