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We do not want the police and other law enforcers to undertake training that avoids risky situations so that the first realistic riot situation that a police officer experiences is a genuine one. The question is whether a greater risk is posed by allowing training to

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continue as it does now so that officers are as prepared as possible for extremely serious incidents with no threat of corporate manslaughter, or by applying the offence to such training, at the risk that it will be carried out with fewer hazards, thereby transferring the risk to a real, live incident.

Our view, which is probably more commonly shared, is that the police are better protected by ensuring that training continues as it does at present. The exemption is narrowly drawn and will apply only to training that must be hazardously undertaken in order for the police to be able to deal with the serious threats they face in carrying out their duties. I hope that that answers the concerns of the noble Lord, Lord Henley, and that he will feel confident in withdrawing his amendment.

Lord Henley: I am sorry that the noble Lord cannot offer me much more succour on this amendment. My point was that there already is an agreement, bound by statute and signed up to in 2000, between the Association of Chief Police Officers (ACPO), the Health and Safety Executive and the noble Lord’s former department, the Home Office, for which he speaks today. That seems to recognise that, however hazardous the training, it should take place in an environment that is, to a certain extent, controlled. Trying to be helpful to the Committee, we tabled the amendments with that in mind. Obviously, the noble Lord does not agree with me, so I will look very carefully at what he has said and consider whether to table the amendment on Report. In the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 51:

The noble Lord said: This is one of a number of amendments designed to probe the Government’s reasoning for some of the amendments that they tabled on Report and at Third Reading in another place. The Government had no opportunity to explain what they were about, and Members of another place had no opportunity to probe the Government’s intentions. It is important for the Government to set out exactly what they mean. For those of a legal bent—there have been complaints from the noble Lords, Lord Razzall and Lord Lee, that there are too many lawyers involved in the Bill—perhaps I can explain why that is so important. The House of Lords case of a few years ago Pepper v Hart made clear that the considered remarks—if they are considered—of a Minister could be taken into account by the courts when interpreting the meaning of a statute.

We have tabled this amendment to remove subsection (2), which was added by the Government, to allow the noble Lord, Lord Bassam, as a member of the Government to give his considered views on exactly what the provision does, and to make clear to the Committee, and possibly later to the courts, what it adds to the Bill.

As we understand subsection (2), we are probably more than happy with it, but I still think that it

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behoves the noble Lord, given that his Government have brought in more than 20 amendments without discussion, to let us know what they are about. I beg to move.

Lord Bassam of Brighton: I should express my gratitude to the noble Lord, Lord Henley, for that introduction because it provides us quite properly with an opportunity to explain the thinking behind the amendments which, as he has said, were moved in another place but on which there was little debate. This goes to the heart of describing types of public authority which are included in the drafting of the exemption in Clause 5(1) of public authorities facing violence when engaged in operations for dealing with terrorism, serious public disorder and civil unrest. No doubt the noble Lord will be able to tell me whether his understanding is the same as mine.

Concern was expressed that the term “public authority” could be interpreted too widely to include authorities which do not as part of their core business engage in policing and law enforcement activities. In particular there was concern about whether organisations involved only indirectly in dealing with terrorism or other such circumstances could also benefit from the exemption. In the light of that we undertook to look at the exemption one more time. Part of the reassurance on this point is that the public authority in question must be carrying out operations to deal with terrorism, civil unrest or serious disorder. This in itself restricts the organisations to which the exemption applies. However, having considered the clause again, we were of the view that without amendment it could apply to a public authority whose functions did not include policing or law enforcement activities. Potentially, this could be wider than we had intended, theoretically applying it to an organisation involved in other aspects of such circumstances.

We were not keen to list the public authorities to which this exemption should apply as there is always a risk with a list that something is left off, but we decided that the best way to restrict this exemption is to ensure both that the operations in question involve policing or law enforcement activities and that the authority must be one which has the functions of a police force or functions similar to those as defined in Clause 5(4). Our amendments tabled on Report in another place achieved that objective. I hope that that helps the noble Lord in his comprehension of the matter.

Lord Henley: I am grateful to the noble Lord for that explanation. I have followed what he has said and I am more or less happy with what has been done. I have only one question to put to him before I consider how to proceed with my amendment, perhaps at a later stage. Paragraph (a) of subsection (2), added by the Government, allows for the exemption of the duty of care,

Does the Minister himself consider that the case of Jean Charles de Menezes would automatically be exempted and therefore come under paragraph (a)?



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Lord Bassam of Brighton: I think the noble Lord can take it as read that that would be the case.

Lord Henley: I am grateful to the noble Lord for that assurance. Again, I thank him for explaining what the amendment will do. Perhaps I may say once more how regrettable it was that the Government introduced all those amendments without discussion in another place, particularly on a Bill that had been through the draft Bill procedure and benefited from the carryover arrangements, thus allowing it to be considered in this House in a different Session from the one in which it had been dealt with in another place. That being the case, where it is quite obvious that there was no pressure of time for the Government, it would have behoved them to give it a little more time in another place. I appreciate that the noble Lord cannot speak for the business managers of another place, but I would be grateful if he would convey this message to his colleagues there because it would make their job and ours considerably easier should that normally be the case where there is no time pressure. Having got that off my chest, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 52 to 56 not moved.]

Clause 5 agreed to.

[Amendment No. 57 not moved.]

Clause 6 [Emergencies]:

Lord Cotter moved Amendment No. 58:

(a) it is established that an organisation within section 2 owed a relevant duty of care to a person, (b) the duty of care does not fall within section 2(1)(a) or (b) and was owed— (i) by an organisation within section 2 in respect of the way in which it responds to emergency circumstances (or circumstances believed to be emergency circumstances), (ii) in respect of the carrying out, or attempted carrying out, of a rescue operation at sea in emergency circumstances (or circumstances believed to be emergency circumstances), or (iii) in respect of action taken either in order to comply with a direction under Schedule 3A to the Merchant Shipping Act 1995 (c. 21) (safety directions), or by virtue of paragraph 4 of that Schedule (action in lieu of direction), and (c) it falls to the jury to decide whether there was a gross breach of the duty of care.”

The noble Lord said: I shall also speak to Amendment No. 66, tabled in the names of my noble friends Lord Razzall and Lord Lee. These amendments would remove broad exemptions for emergency services in Clause 6 and further extended by the Government in the other place. The exemptions would be replaced with express requirements for the jury to consider the specific situation of the organisation in question. When determining whether that organisation had acted in a grossly negligent way, such considerations would include the nature of the emergency in question and

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resource conflict. Among other matters, I have in mind the exact words of the amendment; namely,

At Second Reading, I drew attention to a case that arose when I was a Member for Weston-super-Mare in the other place. It was a heart-rending case where a much-loved daughter lost her life due to a collision with a fire engine. Her parents, naturally, were very distraught and wanted someone to be found to be accountable. Of course, many similar circumstances arise, but I was motivated to raise this example at Second Reading. I look forward to hearing the Minister and others. I beg to move.

Lord Hunt of Wirral: I support the comments made by the noble Lord, Lord Cotter. If these amendments were to be accepted by the Government, the bar for any prosecutions would still be set extremely high and juries would be required to take a wealth of mitigating factors into account. I look forward to hearing the Government’s response.

Lord Davidson of Glen Clova: The amendments spoken to by the noble Lord, Lord Cotter, standing in the name of the noble Lord, Lord Razzall, seek to apply the new offence to the emergency services subject to a number of considerations. Before addressing these amendments, I should like to explain why the exemptions provided by Clause 6 are necessary. The purpose of this new offence is to tackle organisations that create risks to the safety of others but do not manage those risks properly. We think that it would extend the concept of manslaughter too far to hold public authorities criminally responsible for their efforts to assist those in danger.

Clause 6, therefore, ensures that it is clear that a narrow range of organisations are not liable to prosecution for corporate manslaughter in respect of actions they take in response to emergency circumstances. This means that matters such as the timeliness of the response to an emergency, the level of response and the effectiveness of how the emergency is tackled are excluded from the ambit of the offence. The exemption applies only in terms of the way in which these organisations respond to emergency circumstances as defined in the Bill. Activities that do not form part of the response, such as maintaining vehicles or equipment, are not covered. Therefore, if a vehicle driven at speed to an emergency crashes because its brakes have not been adequately maintained, those circumstances would not be covered by this exemption. Nor does the exemption override duties of care owed by an organisation as an employer or occupier. Thus an authority otherwise benefiting from this exemption would still be under a duty to provide safe systems of work for its employees. For example, it would be required to provide adequate training for employees who are required to drive at speed.

5 pm

The exemption does not generally remove liability from organisations that could currently be prosecuted for manslaughter. In most circumstances the organisations listed would not owe a duty of care in

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terms of their responses to emergencies, so even without the exemption they would not be subject to this offence. There are some situations in which this would be open to question. This could lead to uncertainty in the emergency services about where their criminal liabilities lie, which could encourage a culture of undue risk aversion in those services. We do not think that that would be in the public interest. We therefore think that there is value in the emergency services and similar organisations being clear about where their criminal liabilities lie, and Clause 6 achieves that.

The amendments tabled in the name of the noble Lord, Lord Razzall, seek to remove the emergency services exemption and to make those organisations liable for the offence where they owe a duty of care, subject to a number of considerations, which are set out. But, as I have said, in most circumstances the organisations covered by this clause would not owe a duty of care in terms of their response to emergencies. Therefore, the effect of the proposed amendment would in reality be minimal. It would not create liability where organisations do not owe duties of care, but it would create uncertainty, which could well distort operational priorities. We would not want that to be an outcome of the Bill.

We also question whether it would be realistic to expect the prosecution to be able to put all the considerations given in Amendment No. 66 before the jury, or fair to expect a jury to be able to make a balanced assessment of complex matters such as other relevant duties owed, resource constraints and public interest considerations when faced with a tragic case. I therefore think that the approach taken in the Bill—to restrict the exemption to tightly defined emergency circumstances—is better. It is in everyone’s interest to ensure that the emergency services and similar organisations will be clear about where their criminal liabilities lie.

The Earl of Mar and Kellie: Is there any danger that corporate manslaughter could be attributed to the employers of someone who drives an emergency services vehicle recklessly?

Lord Davidson of Glen Clova: In such an example, one would look at the individual liability of the driver. Reckless driving would seem to be the type of situation where one would look at purely individual responsibility. Issues such as training would come under the broader context of the clause.

Lord Cotter: I am grateful for the fact that we have addressed this concern today. I thank the noble Lord, Lord Hunt, for his support and for his succinct point that the bar for prosecution would still be very high. I should like to consider what the Minister said in his short and clear response to my noble friend’s point about the driver of, for example, a fire engine. The noble Lord, Lord Hunt, said that there were too many lawyers in this place. I do not necessarily go along with that; but not having a lawyer’s mind, I would like to consider what has been said and look

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forward to further discussion on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral moved Amendment No. 59:

“(d) any other organisation employing people whose duties involve extinguishing fires, or protecting life and property in the event of fire, or responding to emergency circumstances (or circumstances believed to be emergency circumstances);”

The noble Lord said: Amendment No. 59, which is grouped with Amendment No. 61, comes back to a question that was aired in Committee in the other place but unfortunately was not allowed time on Report. These amendments seek to improve two remaining unsatisfactory points relating to the precise extent of the exemptions in practice. Amendment No. 59 would allow commercial emergency services to be included in the exemption extended to statutory emergency services, and Amendment No. 61 is intended to clarify exactly where the duty of care ends by inserting the words,

Let us consider, for example, a situation where a patient is brought into a hospital under emergency conditions but is then transferred to another department in the hospital and sadly dies. The boundaries for exemption will be very unclear.

Turning to Amendment No. 59 in more detail, Clause 6 provides exemptions for the emergency services but expressly excludes commercial emergency services from the exemption. Subsection (2)(d) states clearly that,

may be exempt from a corporate manslaughter charge should an individual die in potentially preventable circumstances.

I read the Minister’s argument in another place carefully, and with some incredulity, for he made the point clearly that:

Quite rightly, Gerry Sutcliffe was emphasising that emergency services self-evidently need to take unusual and sometimes extreme risks in order to function efficiently and effectively in high-pressure emergency situations. That is absolutely right. The threat of a corporate manslaughter conviction would not effect the same change in culture in the emergency services as it could, for example, in the Prison Service or in large transport corporations, where there is time for reflection and planning. Indeed, he went on to say:



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I should like to draw the attention of noble Lords to those last few words. The Minister in another place considers rightly that, when considering the exemption of the emergency services, we should take into account only the demands that those services will face and not the way their business is conducted outside those situations. That makes a great deal of sense. Those organisations will be exempted only in their capacity as emergency services, but it also flatly contradicts the letter of the new law as currently proposed.

Commercial emergency services face exactly the same difficult life-and-death decisions as a statutory authority when responding to emergency services. We must go further than that. A life-and-death decision is no less crucial purely because in one instance someone making it is paid and in another they are not. I just felt that the Minister’s response in another place to this question was rather dismissive and very revealing. Observing that the amendment would extend the exemption to all organisations that employ firefighters, he said that,

That is the crux of the argument.

The simple fact is that privately employed firefighters at an airport or a film studio are not so very different from those employed by the state or its agencies. They are there for a reason, which is essentially to be found in statute either directly or indirectly. They are there for reasons of health and safety or for the requirements of statutory employers’ liability. Of course, we do not want them to be remiss in their duties of care, or to be grossly negligent, but in an emergency situation they will face exactly the same split-second dilemmas that any other firefighter might. It is very surprising that, purely by virtue of their commercial nature, non-statutory, non-volunteering emergency services will be under threat of a corporate manslaughter charge should their actions unintentionally result in the death of an individual during an emergency.

I should like to refer noble Lords to the Minister’s warning against refusing exemption for emergency services purely on the basis of how they, as they put it, go about their business in general. Yet that is precisely the reasoning behind the Minister’s current argument. I hope to reiterate that Amendment No. 59 would ensure that this new law does not render the private emergency services risk averse. I hope that the noble and learned Lord who will respond, and other noble Lords, can consider how much of an incentive there is for privately owned emergency services to execute their services efficiently. They have a commercial reputation to maintain, but without the protection of an exemption those services will be forced to take into

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account potential liability, which would seriously debilitate their effectiveness in carrying out their services.

Amendment No. 61 seeks to establish where the exemption ends and the duty of care begins in the course of treating a victim of an emergency. The amendment would include treatment centres in the exemption when read alongside subsections (3) and (4) of Clause 6. That would mean that in my previous example, where a patient was passed into the mainstream department of a hospital rather than being kept waiting in A&E, the exemption would hold firm. Amendment No. 61 is not intended to cast the net for exemption wide—far from it. On the one hand I have argued for no exemption for one set of public services—the Prison Service—but, on the other hand, I now defend the exemption for both statutory and non-statutory services. We all have one common aim in supporting this Bill: to establish a strengthened incentive to all organisations and service providers to improve the culture of safety.

However, the vital issue in this part of the Bill is that the incentive must be applied in different ways depending on the circumstances in which different services operate. In respect of that, the emergency services are the complete opposite of the Prison Service or other services providing lawful custody. We have already debated that the purpose of the Prison Service is to maintain a controlled rehabilitating environment. It has a duty of care for those in its custody based on that purpose and based on the fact that those individuals have been stripped of their liberty. The emergency services are compelled to act in a completely uncontrolled and unpredictable environment, deliberately and knowingly exposing themselves to extreme risks in the interests of protecting and rescuing the public.


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