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However, the Government have taken the wider position and have recognised that there is a strong public interest in ensuring high levels of accountability where management failure in a public authority has lain behind a death. But we believe that distinctions remain to be drawn about the sort of circumstances in which it is right to involve the criminal law of gross negligence.
The position in the Bill represents the culmination of a very careful process of consideration about how that line should be drawn. Any line such as this is, of course, open to criticism, and some argue that no line should be drawn at all. Others argue that, if no line can be drawn within the functions of the Crown, that underlines the importance of keeping Crown immunity intact. We do not accept either position as correct or helpful.
We believe that bringing the criminal law into the realm of government for the first time represents a considerable extension of the law, both in principle and practice, and it is only right that such a step is taken cautiously. We have been bolder than applying the offence only to public authorities as employer and occupier, but we need to think very carefully before extending the offence to issues that go to the heart of the public responsibilities of government.
I now turn my focus to the remarks on the three exemptions that the amendments would remove. Clause 3(1) deals with decisions involving matters of public policy. It is intended to deal with essentially high-level decisions about 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
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The courts have already recognised that decisions of this kind 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 these activities in any event. The exemption provides clarity about what is and is not covered, and removing the exemption would lead to some doubt about the application of the new offence in this respect. It would risk encouraging an overly defensive or cautious approach in public authorities and risk distorting decisions about priorities for public resources. We do not believe that that would be in the public interest.
However, I must make it clear that this exemption is not about the management of resources. Once a public body has embarked on a particular activity, it must do so with full respect to its safety responsibilities and it cannot plead a lack of resources as a defence. The exemption does not change that.
Clause 3(2) deals with exclusively public functions. In an earlier debate, we considered how far that extends in relation to the activities of public authorities. I explained that the intention was to cover a narrow band of activities that are performed uniquely either by the Government or on their behalf, in particular where the exercise of a function requires statutory powers, such as the holding of people in custody. Those are, in our view, intrinsically public functions, and their management and organisation will frequently be closely linked to questions of public policy, as we explored in the context of custody. As such, we consider that the organisation and management of these functions, with which this offence is concerned, are more appropriately the subject of wider forms of accountability, such as public inquiries and other independent investigations, than can be achieved under the criminal law.
Clause 3(3) deals with statutory inspection. This exemption is partly about clarity and partly about ensuring that statutory inspectorates do not become overly officious simply to protect themselves from prosecution. Those who followed the debate on regulation will be acquainted with the concept of regulatory creep in this regard. It would be rare that a duty of care would be owed in relation to statutory inspection under the normal rules of negligence. Inspection and enforcement work takes place at one remove from the carrying on of activities that affect members of the public, and there will therefore be questions about whether the relationship is sufficiently proximate to give rise to a duty. There are also questions of whether it would be just, fair and reasonable to impose a duty. This exemption puts it beyond doubt that no relevant duty will arise.
That clarity is important to prevent statutory bodies becoming overly cautious when carrying out regulatory work. In all cases, statutory inspectors must weigh the risk of harm against the regulatory
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It is important that we consider carefully the circumstances in which public authorities should be subject to the Bill. The Government believe that those need to be wider than responsibilities as employer or occupier but that a line needs to be drawn between the sort of activities where public authorities are in no different a position from that of the private sector and those where they are exercising public functions. In our view, it is too great an extension of the law to say that the discharge of public responsibilities, intrinsically involving questions of public policy, should be subject to the criminal law.
If the Committee believes that lines of this nature cannot be drawn, we shall of course be prepared to consider further the question of whether Crown immunity should be abrogated at all. But, at this stage, I urge the noble Lord to withdraw his amendment.
Lord Lyell of Markyate: I am grateful to the noble and learned Lord but I should be even more grateful if he could clarify one or two points. He gave the example of the Royal Mint having acted in relation to a heavy machine on the hook of a crane. Rightly, he did not decide whether that gave rise to corporate manslaughter or whether it would have done in the future, but at least it got sufficiently close to illustrate the argument. Did I understand the noble and learned Lord to say that, today, the Royal Mint would be caught under Clause 2(1)(b) as the occupier of premises? If I understood that correctly, in those circumstances how does Clause 2(1)(b) relate to Clause 2(1)(c)(ii), which concerns,
let us ignore the word “construction”—
The case given seemed to involve a very serious failure of maintenance.
If it was reasonable to catch the Royal Mint—one of the bodies listed in Schedule 1—for corporate manslaughter in those circumstances, and if it falls under Clause 2(1)(c), why should not all public authority operations which fall under paragraph (c) be similarly caught? That is what we are asking for, and it seems entirely reasonable. I look forward to hearing what the noble and learned Lord says.
7.15 pm
Lord Davidson of Glen Clova: First, I should clarify that—treating it as an example without any particular facts or employer and simply for the purpose of this debate—one would not be looking under Clause 2(1)(b) as a duty owed as an occupier of premises, but rather under Clause 2(1)(c) or perhaps Clause 2(1)(c)(iv)
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Lord Lyell of Markyate: It may give clarity to other Members of the Committee, but I am a bit stupid and it does not give complete clarity to me. What is the justification for excluding all those items in Clause 2(1)(c) in relation to public authorities? All afternoon, I have been trying to get at why the Government are restricting the liability of public authorities under the Bill to Clause 2(1)(a), in other words to their employees, and Clause 2(1)(b) as occupiers of premises. What is wrong with making them liable in the circumstances of Clause 2(1)(c)? Can the Minister explain in the practical language that my noble friend Lord James uses when he gives examples?
Lord Davidson of Glen Clova: The fault is doubtless mine. At the beginning of my response, I sought to set out the basis on which one looks at a public authority and finds within it public functions that by their nature are not suited to being levered into this type of offence because they are in broad areas, such as considering priorities within policy, rather than the specific areas that Clause 2(1)(c) identifies. I am happy to provide the noble and learned Lord with a copy of what I sought to say if that would elucidate matters. I have tried to get across the reason why there is a difference with public functions.
Lord Lyell of Markyate: I apologise for coming back again, but we are on such a central issue that it is worth a minute or two. In a way, I was encouraged because I think the Minister is not only seeing my point but seeing its merit. It is perfectly obvious that none of the points made in Clause 2(1)(c)—duties owed in connection with the supply by the organisation of goods or services, construction, maintenance, commercial activities, the use or keeping of plant, vehicles or other things—is relevant to public policy. In my opening speech, I expressed my doubt about whether we should cut out the points in Clause 3(1) where we are dealing with decisions
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The Minister used one argument which I did not find terribly attractive—I would accept that he put it charmingly. He said that it might make statutory bodies over-cautious if they thought that the legislation might give rise to charges of corporate manslaughter and they might not permit anything—fire officers are quite often pretty cautious, some people think, but they have a judgment to make.
One might equally argue that one should not have corporate manslaughter in the commercial sector because it would all become very expensive and that UK plc would become less competitive and do less well. That argument would not find great favour here, nor does the Government’s argument about over-caution.
Lord Davidson of Glen Clova: I regret that I must disappoint the noble and learned Lord in that I do not accept that the terms of Clause 2(1)(c) provide an argument as to why Clause 3(2) is somehow lacking in relevance. The point that Clause 3(2) seeks to get across is that where an exclusively public function is concerned, an exemption should apply. Per contra, Clause 2(1)(c) sets out descriptions of items which are plainly not within the notion of public function. We may simply have to agree to differ on this point. One needs to draw a particular line in relation to public authorities when one moves into the area of public policy.
Lord Lee of Trafford: I am a little reluctant to intrude into what is obviously a rather personal debate. I am sure that we will return to this matter on Report, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 37 to 42 not moved.]
Lord Bassam of Brighton: It may be a convenient moment for the Committee to adjourn until Wednesday 17 January at 3.45 pm.
- The Committee adjourned at 7.24 pm.
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