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The death of Sergeant Steven Roberts in Iraq, in circumstances in which he had been required to hand in his body armour, was a tragedy and I express my deepest sympathy to his family and others who loved him. That case has been fully investigated and was subject to a coroner’s inquest that delivered a narrative verdict in December. This ensured a full and public examination of the circumstances of his death and the factors surrounding it. That is of course important, but we do not believe that the criminal law can simply be superimposed in these circumstances. That would bring the way in which the Armed Forces prepared for combat operations, and supplied and deployed their forces in the field, within the ambit of the criminal law. This risks placing a heavy new onus on senior commanders and distorting operational priorities by placing a particular emphasis on one set of factors. Combat operations cannot be susceptible to this if we wish to retain our full operational effectiveness.

These are enormously difficult circumstances, and each death will be a tragedy. Drawing a line that excludes any of them from the ambit of the offence will inevitably appear harsh and unjust. Lifting Crown immunity would bring the criminal law into the workings of the Government, including the Ministry of Defence, to a very considerable extent. But we are clear that the discharge of public responsibilities, including the way in which combat operations are prepared for and waged, are not areas where the criminal law ought to apply. I therefore urge the noble Lord, Lord Hunt, to withdraw his amendment.

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Lord Hunt of Wirral: I am grateful to the noble and learned Lord, Lord Boyd, the noble Lord, Lord Ramsbotham, and the noble Earl, Lord Mar and Kellie, for their contributions. This is a difficult area. The whole question of inadequate equipment raises a number of issues, and I am therefore also grateful to the noble and learned Lord, Lord Davidson, for his response. It is a difficult decision and I will want to reflect on it, particularly on the points made by the noble Lord, Lord Ramsbotham, about training. I am now left to think about ways in which we can address cases where there has been a gross breach of the duty of care in respect of equipment. Perhaps we shall return to this at a later stage. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Policing and law enforcement]:

Lord Henley moved Amendment No. 46:

(a) it is established that a public authority owed a relevant duty of care to a person, (b) the duty of care was owed in respect of— (i) operations within subsection (2), (ii) activities carried on in preparation for, or directly in support of, such operations, (iii) training of a necessarily hazardous nature, or training carried out in a necessarily hazardous way, in order to improve or maintain the effectiveness of the police with respect to such operations, or (iv) policing or law enforcement activities which do not fall within section 2(1)(a) or (b), and (c) it falls to the jury to decide whether there was a gross breach of that duty of care.”

The noble Lord said: I shall also speak to Amendments Nos. 47, 48, 53, 54 and 57. I understand that the group also includes Amendment No. 52 and the Question whether Clause 5 should stand part, tabled in the name of the noble Lord, Lord Lee. I appreciate that some of the arguments that will be put forward both on this side and by the noble Lord, Lord Bassam, will be similar to those we have heard in regard to Clause 4, on military activities. However, I hope that we can still exercise them, and I certainly look forward to hearing what the noble Lord has to say.

This group of amendments seeks to cancel the blanket exemption in regard to the deaths of civilians caused by the gross negligence of the police or other public authorities in the performance of policing or law enforcement activities, and to cancel the exemption in regard to the killing of members of the public and employees of a police force which occurs in connection with operations or training for dealing with terrorism, civil unrest or public disorder in which the police come under attack or face the threat of attack or violent resistance. There is nothing inherent in the nature of the work carried out by organisations involved in law enforcement that justifies their

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exemption from criminal liability for causing death by negligence. I will not say anything at this stage about the de Menezes case, but obviously it comes to mind.

Amendments Nos. 46, 53 and 57 address the core of the matter by removing the exemptions and replacing them with the requirement for the jury to take account of the situation in which the police or other law enforcement authorities were in when assessing whether there has been a gross breach of a relevant duty of care. Rather than the present blanket exemption, the wording in the amendments would ensure that the jury would be required to conclude that the body’s conduct had fallen far below what could reasonably be expected in the circumstances—I emphasise the words “in the circumstances”. That consideration would be circumscribed by the mitigating factors that the jury would have to take into account under Amendments Nos. 53 and 57.

Amendments Nos. 48 and 54 offer two alternative methods of applying the duty of care owed by policing and other law enforcement organisations to members of the public. Amendment No. 54 simply cancels the blanket exemption of policing duties by rerouting the application of the clause through the amendments that I proposed to Clause 2, which would extend the application of any duty of care owed by organisations. Amendment No. 48 would ensure that, were Clause 5 to remain as it is, it would not apply where the duty of care that was breached was owed to members of the public. Again, it refers to amendments to Clause 2. I beg to move.

The Deputy Chairman of Committees: If Amendment No. 46 is agreed to, I cannot call Amendments Nos. 47 to 50 by reason of pre-emption.

The Earl of Mar and Kellie: Can the Minister explain whether the police are in any danger over deaths that result from hot-pursuit vehicle chases? When it was announced earlier this week that two young men had died on the Underground while running away from what I think was a graffiti bombing and video trip, there was an implication in the news media that they had been chased by staff away from something that they should not have been doing. I hope that the Bill covers that. Can the Minister help me on that?

Lord Ramsbotham: I have a small legal point. One part of law enforcement which impacts on the Prison Service that is not specifically covered is the escort of prisoners. If that is carried out on a commercial basis, it seems to me to be covered by Clause 2(1)(c)(iii), which covers,

because the organisation is being paid for it. I am concerned about the escorting of prisoners by members of the Prison Service, for instance, when in a way they have the responsibility of constables. That constable status exists while they are inside prison premises. As I said, this may be a small legal point, but there are occasions where things happen to prisoners while they are being transported that might come up under the Bill.

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Lord Boyd of Duncansby: This exemption, as I understand it—perhaps the Minister will confirm this—applies where law enforcement operations are,

and not otherwise, so ordinary policing operations are not caught by it. I have a worry about this. Five years ago, we did not anticipate the terrorist threat that we now face in this country. Certainly I believe from everything that I learnt from my time as Lord Advocate that it is extremely serious in this country. It is also clear that there are those who will threaten the country with chemical, biological or radioactive material. We may have to respond very quickly to these threats as they develop. I am concerned that if we were to include, for example, adequate training and the provision of equipment, training that is absolutely necessary for protecting the civil population might not happen because, for example, there is no adequate equipment or people will think that there is no adequate equipment.

The Bill is rightly creating a society averse to the risk of death, but I am concerned that at some point we will face in this country unforeseen threats which we must respond to very quickly, and one would not want the preparations or the training for these threats to go by the board simply because we are waiting until all the equipment and training are in place.

Lord Dear: I declare an interest as a serving police officer for more than 30 years; indeed, I served in the significant tactical front-line and strategic ranks in incidents of severe public disorder. Everything that was adduced to support the previous clause can equally be adduced to support this one. I was much taken with the noble Lord’s comment about reviewing the Bill to cover gross breaches in relation to inadequate equipment. I would support a provision to deal with such negligence.

The noble Lord, Lord Ramsbotham, spoke very eloquently about military training. Very much the same arguments apply to the training of the police. It would be a mistake to prevent the police having access to training that would prepare them for violence on the streets, which has been rapidly increasing for some time. In the lifetime of most of the occupants of this Room, we have seen the policing of severe disorder move from the policing of the sort that we saw in Grosvenor Square in the 1960s, when the police simply linked arms and leant against the crowd, to firearms being discharged against the police and petrol bombs being used, which I have experienced. Of course we now face a whole range of theoretical possibilities, which I need not go into. I support the clause as it stands.

Lord Bassam of Brighton: I am very grateful to all those who have taken part in the debate. I agree in essence with the point that the noble Lord, Lord Dear, has just made: this is in a sense a re-run of earlier debates. Nevertheless, it is important for me to recite the Government’s position, because some refinements have been made to it and there are important points of distinction.

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It might help if I outline some of the general principles behind Clause 5 before moving to the more specific points that have arisen.

There are three important points, and there will probably be a degree of agreement on these in the Committee. First, the police are not and must not be above the law. This is a basic tenet of policing within the democratic framework, and it must be the overriding principle in any debate of this nature. Secondly, and linked to the first point, in limiting the scope of the offence as we have done we have not acted lightly or gone beyond what we feel is absolutely necessary in the circumstances. I fully sympathise with the attempts to widen the scope of the Bill to cover matters more fully, but, for the reasons that I shall enumerate, I cannot agree that it is the right approach.

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The third, and perhaps final, general point is that we have to take proper account of the nature of police business. The business of policing, at its most basic, is managing conflicting risks to protect us, the public, from each other. The police are, as the noble Lord, Lord Dear, said, in the front line. We have put them there. They do a job for us. They have no alternatives. There is no one else to whom they can pass the buck, and they are duty-bound to carry out their activities. In contrast to a private organisation, they cannot withdraw their services because of a lack of resources. Instead, they must balance resources in order to meet demand. In doing so they must take into account the public interest on the one hand and the rights of individuals involved on the other.

Where the police function as a normal business in their duties to their employees and as owners of property, we feel that, with some minimal exceptions that I will come to later, the new offence should apply. These are the core health and safety duties that the offence is essentially designed to cover. But, where the police are engaged in their policing activities, our firm view is that it would be wrong to bring in the criminal law, as with military activities. The civil courts have been cautious in judging how far the duty of care should extend. They have not thought it right to try to judge the kind of operational decisions involved in all types of policing activities, and they have been rightly concerned that bringing the courts into this kind of area could make the police risk-averse.

Many noble Lords appear to accept that the police and law enforcers are worthy of special treatment because of their particular position. Drawing a line between the types of activity that the police engage in—which should be in and which should be out—is not easy. I am grateful to noble Lords for their additional contributions in helping us with this consideration. I have to conclude that we are not convinced that they offer enough certainty for the police, or that they are the right way to go. In the light of these arguments and the very persuasive comments during the debate, I hope that I can persuade noble Lords to support the clause as it is and withdraw the amendment.

Before I sit down, I shall try to cover the points usefully made in the discussion. The noble Earl, Lord

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Mar and Kellie, asked about police being endangered in high-speed chases in pursuit of criminals. The offence does not apply in respect of how police carry out their core functions and how those have an impact on the public. However, the offence applies in these circumstances in respect of the officers themselves. Police forces owe duties to their constables to provide a safe system of work. That makes very few inroads into that.

To answer the point raised by the noble Lord, Lord Ramsbotham, we debated the escort of prisoners by commercial organisations when talking about custody issues. That would be exclusively a public function and therefore excluded.

I am grateful for all noble Lords’ contributions. These are not amendments with which we can agree. We feel that, on exemptions, we have got the balance about right. Having listened to the debate, I believe that, by and large, the Committee agrees with that point. This is a difficult area. It is right that we have this proper debate about where the boundaries should be drawn, but I believe that we have them about right.

Lord Henley: I suppose that I ought to say that I am grateful to the noble Lord, Lord Bassam, for his comments, but there seemed to me to be some confusion in his remarks. Somewhere roughly in the middle of his speech he seemed rather to lose his thread. I shall have to look very carefully at what he had to say in dealing with my amendments.

Having said that, I am very grateful to the noble Lord, Lord Ramsbotham, for his comments. I shall look very carefully at what he had to say about prison officers and their role, particularly when they are escorting offenders to and from court, and the different ways in which they are treated according to whether they are prison officers or private sector staff.

I agree wholeheartedly with what the noble and learned Lord, Lord Boyd of Duncansby, said about the change in the terrorism threat. I was reminded of this only yesterday. When I first came to this House, when the late Lord Callaghan was Prime Minister, I remember seeing him, accompanied by someone whom I presumed was a civil servant—he may have been a detective—walking from No. 10 to the Houses of Parliament. When I saw streaming along the Mall yesterday three police motorcycles and what I took to be the Prime Minister’s car, followed by three further cars, I realised just how much things had changed over a relatively short time. We always have to bear that in mind when we consider legislation of this sort.

The same is obviously true of what the noble Lord, Lord Dear, had to say about changes in civil disorder. I can just about remember the events in Grosvenor Square in 1968, although I was too young to be involved. I do not know whether the noble Lord, Lord Bassam, was there. If he was not, I am sure that he was there in spirit.

Lord Bassam of Brighton: I would have been about 14.

Lord Henley: I was only 15 at the time. I think that neither the noble Lord nor I was there, but whether the noble Lord was there in spirit is another matter.

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As I said, I will look very carefully indeed at what the noble Lord had to say and consider how we want to take forward these amendments at a later stage. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 47 to 49 not moved.]

Lord Henley moved Amendment No. 50:

The noble Lord said: Amendment No. 50 stands in my name and that of my noble friend Lord Hunt. It would remove paragraph (c) of Clause 5(1), which exempts training of a hazardous nature from any duty of care owed by a public authority. Here we come very much to a repeat of what was discussed earlier.

This subsection of Clause 5 buffers the existing protection afforded to policing and law enforcement by providing further immunity than that supplied by Clauses 2 and 3. Earlier we debated the important issue of custody. That is a debate to which we shall certainly return, and one in which there is considerable unanimity in the Committee other than on the government Front Bench. No doubt the noble and learned Lord will remember that debate and looks forward to returning to it at a later stage.

There is already strong protection for the police service under Clauses 2 and 3, where the Prison Service is also protected from any possible liability for deaths caused during hazardous training. Given that the Government added the extra clauses on specific public functions during the debate in another place, noble Lords on these Benches are pleased to have the opportunity to ensure that the new clauses establish an appropriate level of accountability within public authorities.

It goes without saying that the police face incredibly difficult challenges and that to face them properly, there must be the appropriate training. Our amendment would not impede that training. Where an individual died in training of a hazardous nature, the police force would be liable for conviction of corporate manslaughter only had the standard of safety offered fallen far below—it is worth emphasising the words “far below”, as we discussed it earlier on an amendment tabled by the noble Lord, Lord Wedderburn—what can reasonably be expected in the circumstances, so the standard of safety provision has been negligible.

I understand that the Association of Chief Police Officers, the Health and Safety Executive and the Home Office all signed an agreement in 2000 which was to establish a mutual understanding of the objectives of the HSE and the police service in relation to the inspection and enforcement of health and safety legislation. All parties agreed that the HSE should inspect training areas where hazardous training is being undertaken. The HSE makes it very clear in its operational circular that its inspectors’ primary concerns are in,

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That is central to the point that we are making today.

The HSE recognises that hazardous training is necessary, and we agree with that. Police officers must be trained to deal with all kinds of unpredictable and extremely dangerous situations. We do not dispute that, but where the organisation of those operations is deficient and a death arises as a result of that deficiency that is entirely avoidable, I see no reason why the authority responsible should not take responsibility. Negligible organisation before an event that results in death at that event cannot be excused merely because the activity is hazardous. We are very reluctant to give the police protection for what would amount to gross incompetence in their training. Our amendment would address that. I beg to move.

Lord Bassam of Brighton: Perhaps I should apologise for the slightly truncated nature of my comments earlier. I was attempting to spare the Committee too much repetitious argument. If the noble Lord, Lord Henley, spotted me changing tack slightly, that was why.

We have had some debate on police exemption, so I shall try to confine my remarks to why we think that the exemption should extend to hazardous training. First, perhaps I should explain more closely what the exemption covers. This is about training which is either hazardous in itself, or must necessarily be carried out in a hazardous way in order to prepare law enforcers for dealing with situations such as combating terrorism or serious public disorder, when the officers are faced with violence or the threat of it.

In practice, that means that it is a narrow exemption. I reassure the Committee that the exemption will not extend to routine training which is negligently carried out in a hazardous way. But the police do have to undergo training which is, by its nature, hazardous. For example, the police experience real petrol-bombing in training that they undergo to deal with riots. They must be able to experience this sort of training to prepare them properly for real incidents when they come under attack during riots. Much of that training focuses on how to ensure staff and aggressor safety during incidents, but necessarily includes real experiences of danger.

Our concern here is that bringing hazardous training within the scope of the offence would act as a disincentive to conducting hazardous but necessary training activity, which would be counterproductive and, we argue, would run the high risk of putting officers at even greater risk because of their lack of preparedness for acting properly in dangerous situations. I cannot believe that the noble Lord, Lord Henley, would want that to be the case. I am sure that, like me, he wants to have confidence in how the police service conducts itself and to ensure its safety and that of the public.

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