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Lords amendment disagreed to .

Lords amendments Nos. 3, 5, 6 and 10 disagreed to.

Government amendment (a) in lieu of Lords amendments Nos. 2, 3, 5, 6 and 10 agreed to.

Clause 1

The offence

Lords amendment: No. 1

The Minister of State, Ministry of Justice (Mr. David Hanson): I beg to move, That this House agrees with the Lords in the said amendment.

Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss Lords amendments Nos. 28, 29, 31, 32 and 35.

Mr. Hanson: I am new to the post at the Ministry of Justice, so I have not had the pleasure of taking part in the Committee stage of the Bill, nor have I had the opportunity to see another place in action. I am
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assured, however, that the amendments brought forward following consideration in another place are now very much welcomed by the Government.

I am pleased to seek the House’s support for the amendments, because the Government have listened to the concerns expressed there. I particularly thank the noble Lord Hunt and the noble Lord Razzall for their support for the amendments. The amendments deal with what sort of organisation can be prosecuted for the new offence, and strengthen the Bill by extending the new offence to certain types of unincorporated body.

There has been a wide measure of support for extending the offence beyond the circumstances of an incorporated body, and I pay tribute to those who pressed the Government on the issue, including the Home Affairs and the Work and Pensions Committees in their scrutiny report on the draft Bill. I also pay tribute to the Under-Secretary of State for Justice, my hon. Friend the Member for Bradford, South (Mr. Sutcliffe), for his work in Committee and in steering the Bill through not just two Houses of Parliament but two Departments—from the Home Office to the Ministry of Justice.

5.30 pm

It will be of little comfort to a bereaved family to learn that the most serious criminal penalty for an involuntary killing is not available because the organisation involved lacks a separate legal identity, and the amendments—which we are happy to accept—seek to remedy that.

The new offence of corporate manslaughter is based on the concept of management failure in the organisation, and is not dependent on the guilt of a particular individual. In the case of companies and other corporate bodies, liability under the new offence can be attributed to the corporate legal entity itself. That is not possible in an unincorporated body, which exists as a group of members or individuals and has no separate legal personality. There is a significant difference between the two types of organisation. The amendments respond positively to those problems, and extend the offence to partnerships, trade unions and employers’ organisations. I acknowledge the full support of the Conservatives in another place.

I think it right for us to adopt a cautious approach. Unincorporated bodies are not currently liable for prosecution for manslaughter caused by gross negligence. They include a wide range of smaller and more informal groups, including many in the voluntary and charitable sectors. We do not want to give rise to unwarranted risk aversion in such organisations by exposing them to prosecution for serious offences for the first time, but I think we need to take some action in response to what has been done in the other place.

The amendments seek to strike a balance by extending the offence in the first instance to a defined range of unincorporated bodies including partnerships and bodies with a quasi-corporate status under statute, namely trade unions and employers’ organisations. We have considered monitoring the position to determine whether we should include further organisations. Lords amendment No. 32 provides a power to extend the offence to further categories of organisation through
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secondary legislation should my noble Friend the Secretary of State, my fellow Ministers and I wish to do so in the future.

Other amendments in the group are consequential on the extension of the offence to unincorporated bodies, but I draw particular attention to Lords amendment No. 28, which ensures that there is no loophole in the offence because partnerships do not themselves owe a duty of care. Lords amendment No. 35 adds the National School of Government to the list in schedule 1. The school became a non-ministerial Government Department in January 2007, and needs to be added to the schedule to bring it into line with the other bodies in the list.

I think that hon. Members on both sides of the House should welcome the Lords amendments.

Mr. Grieve: I welcome the Minister to what I believe is his first outing to deal with legislation on behalf of his new Department. It was probably wise of him to delay it until after the resolution of the issue that we debated before this, because he can now enjoy all the pleasures of wallowing in consensus.

As the Minister said, it was the other place that did the necessary work with the Government’s co-operation, but in fairness to those who took part in the Committee stage, I should point out that the issue was first flagged up then. I have no doubt that the Government were right to add partnerships, trade unions and employers’ associations which are not corporations. As we established in Committee, some partnerships—for instance, legal partnerships—are now multi-million pound businesses which, if they were ever allowed to incorporate or indeed to float, would probably go into the FTSE 100 immediately, and I believe that such large organisations should be covered by the Bill.

I agree with the Minister that we should be careful about the degree to which we extend the scope of legislation of this type. However, once the clear decision was made that we were not criminalising individuals—which I regard as fundamental to the legislation—the scope in this measure became closer in nature to the scope of regulatory offences covered by the Health and Safety at Work, etc. Act 1974, which, as the Minister knows, has been applied to undertakings. Its scope is still wider than that of this Bill, because it includes individuals who are running businesses, which would not be appropriate here, but it certainly includes partnerships, trade unions and employers’ associations in its remit. I did not understand in Committee why we were excluding those groups from the scope of the Bill, so I welcome this step.

I also welcome amendments Nos. 32 and 35. Amendment No. 32 would

which I welcome. However, let me make a plea to the Minister—although I suspect that it will fall on deaf ears because whoever drafts the statutory instrument will not deal with it. If we are to add organisations, it is essential that we do one of two things: either that we add them one at a time so that when the time comes to vote we can vote on individual organisations and not on packages, or—which I fear is more likely—that there is proper pre-legislative consultation before we
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add them. The great objection that I have always had to statutory instruments as a means of varying primary legislation is that they do all or nothing. In terms of adding organisations, one far too often ends up facing the classic problem of approving of four of them and not wanting one. They are a bad way to legislate. However, I welcome the amendments.

Mr. Dismore: I raised the issue we are discussing on Second Reading and on Report, which shows how strongly I feel about it. My main concern is to do with differential treatment between different groups. I cannot see any justification for not having the original formulation of undertakings from the 2000 consultation. In my Committee’s view, article 14 of the European convention on human rights is engaged because the various restrictions, exclusions and exemptions—even with the extensions—give rise to different treatment of individuals in analogous situations in relation to their access to the criminal law in respect of negligently caused death.

My Committee noted that the Government had previously accepted that to restrict the scope of the offence by excluding unincorporated bodies generally

That is when the issue of undertakings first arose. It was not included in the original 1996 Law Commission paper, but it was introduced by the Government in the 2000 consultation. I thought that that was a better way of dealing with the problem.

Mr. Grieve: If the hon. Gentleman recalls the relevant debates, he will remember that I suggested there was a completely different way of approaching the proposed legislation which would have enabled undertakings to feature prominently. However, there is a problem: having an undertaking which may be an individual trader under the Corporate Manslaughter and Corporate Homicide Bill has an internal inconsistency that we simply cannot get away from.

Mr. Dismore: The hon. Gentleman makes a fair point, which I was going to address. When we reviewed the progress of the Bill in our report, we suggested that excluding undertakings in order to deal with the sole trader question would be to throw the baby out with the bath water. We suggested that that would put matters back to front, and that what we should have is undertakings as a general inclusion with an exemption for sole traders. That would be a neater and more consistent way of dealing with the problem. In our view, the case law of the European Court of Human Rights shows that the public nature of a body’s function has not been regarded as a reason for excluding criminal liability, but that on the contrary it has been treated as a factor which strengthens the obligations to ensure that recourse to criminal law is available.

The original and obvious answer to this problem would be to revert to undertakings, but it does not appear that that is obvious to the Government. Therefore, we have the amendments before us now which deal with partnerships, trade unions and employers’ associations which are employers. However,
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many organisations would still be excluded, such as schools. Schools—particularly large schools—are effectively businesses, sometimes with budgets worth millions of pounds, and I would be concerned for the parents of children who were found to have died in grossly negligent circumstances if schools were to be excluded from prosecution. That has happened.

Similarly on charities, I accept that an argument could be made in respect of small charities but some charities are enormous, multi-million pound international organisations. Why should their staff not have the protection of this law just because it happens to be the case that their charity is not incorporated or is not a partnership? That would be unfair. We would then have a differential between one group of people and another in terms of the protection of the law. The problem is similar to that discussed in the previous debate, except that there is no light at the end of the tunnel to deal with it.

I certainly do not want to resist the Government amendments, which do constitute progress, but they do not deal with the basic problem of article 14 and differential treatment, and they certainly do not provide the protection that the Bill should provide.

Mr. Davey: I rise simply to support the amendments and to echo the comments of the hon. Member for Hendon (Mr. Dismore). It would have been nice if the Government had listened to everything that we argued for and had included unincorporated organisations fully, whether through the undertakings approach or by linking unincorporated bodies with partnerships, but progress has been made and this place and the other place have helped to achieve it. However, when does the Minister think that the Government might review the measure and take on board the arguments of the hon. Member for Hendon?

Mr. Hanson: I am grateful to the official Opposition and to the Liberal Democrats for their support for the amendments that were introduced in another place. Let me give credit where it was due: this issue was raised by the hon. Member for Beaconsfield (Mr. Grieve) in Committee.

Mr. Grieve: And on Second Reading.

Mr. Hanson: Indeed. I was not in Committee at that time, but I am studying with interest this legislation’s progress to date.

Various issues have been raised and I hope that I can offer some comfort. The hon. Member for Beaconsfield said that he welcomed the fact that amendment No. 32 allows for additions to be considered in due course; indeed, it has been tabled for that specific purpose. In my view, we have struck the right balance. We need to examine what progress is made and, if suggestions are forthcoming, we will consider exercising the power in due course.

The hon. Gentleman also raised the valid questions of whether we should adopt a take-it-or-leave-it approach and what consultation we would undertake. I can assure him on the Government’s behalf that consultation would be central to any additions. If it became clear that we needed to add bodies to the regulations, we would consult widely. The adoption of
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a take-it-or-leave-it approach would depend on the circumstances, parliamentary time and a number of other factors, but I recognise that it would cause difficulties and, where possible, I will avoid such a situation.

My hon. Friend the Member for Hendon (Mr. Dismore) raised a number of issues. I point out that if amendment No. 32 is accepted, we can add bodies to the scope of the regulations. Local education authorities and school governing bodies are indeed now corporate bodies and are already covered by the offence; I hope that that gives some assurance to my hon. Friend. A good number of charities and voluntary organisations—

Mr. Dismore: What will be the status of city academies?

Mr. Hanson: I will have to reflect on that point, because I am not clear whether city academies are themselves corporate bodies. However, I am well aware that local education authorities and school governing bodies are corporate bodies within the local education sector. If my hon. Friend will allow me, I will reflect on that point and if I have an answer before I complete my comments, I will give it to him. If not, I will get back to him.

A good number of charities are indeed corporate bodies and are already covered. I want to ensure that we do not add a burden to smaller charities in particular. I will reflect on this issue and examine in detail whether such bodies might be added under amendment No. 32, should it be accepted. [Interruption.] My understanding, on reflection, is that city academies do constitute corporate bodies, on a similar basis to education authorities and schools; I hope that that helps my hon. Friend.

This issue has been the subject of much debate. The Government can often be accused of not listening to such debates; however, following discussions on Second Reading, in Committee and in the other place, the then Home Office Minister with responsibility for these matters, my hon. Friend the Member for Bradford, South (Mr. Sutcliffe), reached an agreement with the Opposition. I pay tribute to those involved here and in the other place, and I hope that the amendment will be accepted and that we can make progress.

Lords amendment agreed to.

Clause 2

Meaning of “relevant duty of care”

Lords amendment: No. 4.

5.45 pm

Mr. Sutcliffe: I beg to move, That this House agrees with the Lords in the said amendment.

Madam Deputy Speaker: With this we may discuss Lords amendments Nos. 7 to 9, 11 to 21, 23, 24, 26, 27, 33 and 34.

Mr. Sutcliffe: These amendments make minor and drafting amendments to the Bill. This group deals with several amendments made in the other place by the Government to make technical and non-substantive changes to the Bill. Amendment No. 33 introduces a
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new interpretation clause which gathers together several definitions previously dispersed throughout the Bill. It also provides definitions of “employee”, “employers association”, “partnership” and “trade union” following the extension of the Bill to certain unincorporated bodies. Amendments Nos. 4, 7 to 9, 11, 14, 16 to 18, 24, 26 and 33 are consequential on the new clause.

Amendments Nos. 12, 13 and 15 correct two earlier oversights and make minor changes to clause 6 to ensure that it applies comprehensively to NHS bodies and those working on their behalf. Specifically, they add the Secretary of State and Welsh Ministers to the range of potential commissioners of ambulance or transport services to which clause 6 applies, and they correct the earlier omission of strategic health authorities. Amendment 34 clarifies that separate commencement of the Bill’s provisions is possible, while other amendments in this group—amendments Nos. 19, 20, 21, 23 and 26—make minor drafting and technical changes. With that explanation, I hope that the House will support the amendments.

Mr. Grieve: All these amendments seem to be very sensible. I will draw the amendment allowing separate commencement of different parts of the Bill specifically to the attention of my colleagues in the other place, insofar as it might have a bearing on the debate that we had earlier this afternoon.

Mr. Sutcliffe: I am grateful for the support of hon. Members.

Lords amendment agreed to.

Lords amendments Nos. 7 to 9 and 11 to 21 agreed to.

Clause 9

Power to order breach etc to be remedied

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