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I hope that I have made it clear that these amendments seek to achieve internal consistency in the Bill. So far, we have seen that some organisations are being included in the scope of possible prosecution, while others are protected from it. The only consistency so far seems to be the aim of protecting public services providers, but not commercial or private service providers who have exactly the same role. I hope that the Minister will reconsider the position in the way in which I have explained it. I beg to move.

5.15 pm

The Deputy Chairman of Committees (The Countess of Mar): If Amendment No. 59 is agreed to, I cannot call Amendment No. 60 because of pre-emption.

Lord Wedderburn of Charlton: I wonder if I may pose a few questions about the amendments. I may be quite wrong, but my impression was that the noble Lord, Lord Hunt, was moving the first amendment on the basis that Clause 6(2)(d) governed the entire situation. That is not quite how I read the provision. Of course, it is right that it refers to the organisation,

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There may be something to be said for a little more clarification of the meaning there, but I would have thought it was clear that it does not regulate the organisations listed in the paragraphs that follow. Paragraph (f) includes,

That could easily be a commercial operation, if requested or arranged. Paragraph (g) refers to,

One thinks of the motorbikes which often imperil us on the roads when carrying organs, blood and the like, clearly on a commercial basis. Paragraph (h) refers to,

As I understand it, that is not confined to non-commercial bodies. That is my first point, which the noble Lord might wish to address further once he has heard the Minister’s reply.

The second point relates to Amendment No. 61, and it is surely the real thrust of the amendments. It would add to line 40, which is the phrase “a relevant NHS body”, the words,

I would have no difficulty with that if it were governed by the same qualification as the paragraphs that I have just referred to; namely, if it was under arrangements made or requests from an NHS body, and perhaps extending even a little more widely to include any informal arrangements made for an NHS district or region. But if it is to include any organisation providing healthcare, which would, as I understand it, include plastic surgery, for which some case could be made, given the extraordinary profit that such centres make, not necessarily very helpfully to the national health service arrangements generally—I mean that in lower case—I would resist it very strongly. I would not include on a par with NHS bodies any organisations that might be purely commercial organisations which are, very questionably, approved of by those who think of healthcare in a particular area or district.

The noble Lord who moved the amendment did not really take on the burden that he carries in regard to Amendment No. 61, which would include a vast range of those who claimed that they were addressing the healthcare needs as seen by the people they treated, but not necessarily within a general programme for areas covered by the National Health Service, which is under such strain.

Any noble Lord in this Committee who has not read the Financial Times today must go and do so immediately in some natural break or other moment of leisure. There noble Lords will read about the Baker report on BP and the surprising early, or pending, resignation of the chief executive, the noble Lord, Lord Browne. He is one of the most highly paid chief executives in Britain, with the biggest pension pot in Britain, and presided over a culture of a failure to provide for a systematic and governing culture of safety for many years in BP’s organisation. The report

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addresses mainly what happened in Texas, although, as I said in a Committee sitting, its operations in Alaska and elsewhere, and possibly even in Britain—certainly one refinery that is not now owned by BP—come within the same considerations.

I do not say that any healthcare commercial organisation would necessarily run a system of that sort, but I do not really see why as a commercial body it should be on a par other than exactly the same as BP would be under the Bill. However, I reserve my position on whether the Bill would give remedies to the story that is told so clearly and admirably in that great newspaper the Financial Times, which always tells the City and everybody who cares to read it just what is going on.

The Earl of Mar and Kellie: I am tempted to move that the Grand Committee adjourn for the very purposes the noble Lord, Lord Wedderburn, suggests. However, I will not. The noble Lords, Lord Hunt and Lord Henley, are worried about the fact that the Commons did not scrutinise this particular aspect. Are they worried that we are about to have a unicameral system? One of the merits of bicameralism is that what is not discussed in the first House can be caught up in the second. I recognise those noble Lords’ desire to beat the noble Lords on the government Bench with this fact, but they are being a little unfair.

I would like to ask the noble and learned Lord whether vets are covered in the emergency services. Vets have to attend incidents, particularly road accidents involving deer and people, and no doubt dangerous dogs and all the rest. Does the Bill include vets?

Lord Clinton-Davis: I readily agree with much of what has been said, but will my noble and learned friend comment on the fact that there has been a system whereby some functions of the health service have been allocated to the private sector? I do not altogether agree with what has happened, but it is quite a small percentage of what has been agreed.

I certainly do not go along with the generality of the remarks uncharacteristically made by the noble Lord, Lord Hunt. I think that he has overstated the case enormously, but I would like an answer from my noble and learned friend to the points that I have raised.

Lord Davidson of Glen Clova: The noble Lord, Lord Hunt of Wirral, seeks to overturn an amendment made in another place by the Government to Clause 6 and to put in place an alternative provision. I understand that he wishes to test the thinking behind government amendments in another place and I am happy to explain why we decided to limit the firefighting exemption in the way that we did.

The noble Lord’s amendment would extend the emergency services exemption to all organisations employing firefighters, protecting life and property in the event of a fire, or responding in any other way to emergency circumstances. In the first respect at least,

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the effect is to take the Bill back to the form it was in when it was first introduced in another place. However, we believe that the exemption there went too far.

In particular, although the courts have recognised that public rescue authorities do not usually owe duties of care in the way that they respond to emergencies, it is not at all clear that the same considerations apply in respect of private companies providing services on a contractual basis. So although the Bill as it now stands follows the way duties of care appear to fall in the common law, the noble Lord’s proposal will go further and remove current liabilities for these organisations. We should have a very good reason for doing that.

At the heart of the distinction that we have drawn in the drafting of Clause 6(2)(d) is the concept of obligation. The statutory fire services do not choose to offer firefighting capacity on a contractual basis and they cannot withdraw their services from the market. By contrast, commercial organisations can choose the terms of the contractual arrangement with the client and on that basis agree the service that they are able to supply. They can also choose to withdraw their services if there is a risk that resources cannot be matched to demand. In most circumstances, commercial organisations, such as a company offering firefighting services to the film industry, can call for back-up from the fire brigade. There is no such back-up for the fire brigade.

The exemption is not directed just at split-second decisions taken at the scene of an emergency; it is clear that the task of fighting a fire presents the same challenges for public and private firefighters. The difference lies further back, in relation to liability for decisions about the management and allocation of resources. A statutory fire authority is under an obligation to provide a fire and rescue service, regardless of the demand upon its services. At one time, there may be a fire at a chemical plant, a multiple pile-up on the motorway and a number of house fires burning simultaneously. The demands on the fire authorities are unpredictable, and extremely difficult prioritisation decisions may need to be made to make best use of finite resources.

It is true that private organisations have to make prioritisation decisions too, but a private organisation has contracted to provide a particular level of service and to have sufficient resources and expertise to meet the expectations of the client. If it fails, grossly negligently, to meet the terms of that contract, we are not persuaded that it would be right to exempt it from liability.

The question therefore boils down to this: is a commercial operator which chooses to provide a firefighting service in the same position as an organisation that is obliged to provide that service? We are not convinced that it is. The same demands as are faced by the public service are not faced by the private corporation. However, I say immediately that the clause does not provide an absolute provision as regards the private sector—as the noble Lord, Lord Wedderburn, observed in his interpretation, which I

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submit is correct, of Clause 6(2), when he referred to paragraphs (d), (f) and (h).

We amended the exemption so that it extends to commercial organisations only where they are providing firefighting services by arrangement with a fire and rescue authority or the equivalent body in Scotland and Northern Ireland, and so are effectively in the same position as the public services.

In relation to the concern about risk aversion, private organisations are currently liable to prosecution for manslaughter, so in a sense there is no change to that as a result of the new offence. There is no reason for them to become more risk-averse as a result of the new offence.

5.30 pm

On Amendment No. 61, on the application of the exemption to NHS bodies, the noble Lord, Lord Hunt of Wirral, is seeking to challenge our thinking on why this exemption does not also extend to all providers of healthcare services. The reason that we have not extended the exemption in the way suggested is that we do not think that private bodies, with the exception of private ambulance services, are providing the sorts of emergency services that would need to be covered by this exemption. In that regard, I respectfully concur with the noble Lord, Lord Clinton-Davis, who identified that only a very small percentage of the emergency services are covered by the private sector.

The purpose of the exemption is to cover NHS ambulance providers in respect of the way in which they respond to emergency circumstances. Their private counterparts are also covered where they have an arrangement with an NHS trust to carry out comparable functions. Where a trust has arranged for another body to carry out an emergency response on its behalf, we do not think that criminal liability should attach to the one body but not the other. The exemption will only apply when the ambulance service is responding to an emergency, and it will not exempt private ambulance services when carrying out routine, planned work.

Apart from ambulances, the exemption will have very limited application to the NHS, as it does not extend to medical treatment. There is little, if any, contracting-out of emergency response that we are aware of by NHS bodies. We therefore do not believe that non-NHS healthcare providers are independently providing the sort of emergency services that would need to be covered by this exemption.

On the technical point raised by the noble Earl, Lord Mar and Kellie, I have to answer his question on the coverage of vets in the negative.

I hope that this explanation will be enough to persuade the noble Lord to withdraw his amendment.

Lord Hunt of Wirral: Before the noble and learned Lord sits down, I ask again the question that I raised previously. Would the exemption hold firm where a patient was passed into a mainstream department of a hospital rather than being kept waiting in the A&E waiting room?

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Lord Davidson of Glen Clova: If I may answer this way, the exemption does not extend to medical treatment, which I understand is the position that I am being asked to consider.

Lord Wedderburn of Charlton: As, theoretically, the noble and learned Lord is still in a semi-recumbent posture, I will ask him a rather different question, with the leave of the Committee. I referred to this in my earlier remarks. Many people this morning were asking this question on the telephone. Will the Government make some statement or give some clarification of this, either by the end of this Grand Committee or before Report? I do not ask him to answer this categorically today, but I want to see what would be his attitude to the notion that the Government should clarify what would be the effect of the Bill, if enacted, in regard to rescue matters and all the other matters that would arise if the BP explosion had happened not in Texas but here.

That will be a very difficult statement to draw up, and I would not think of asking the noble and learned Lord for any kind of draft on his feet today; but people will ask that question. I am only putting the Government on notice that they ought to say something about what they think would be improved by the Bill if something like the detailed, 100-page Baker report was made about an incident here after the enactment of the Bill.

Lord Davidson of Glen Clova: Since, I gather, I am no longer recumbent, with great diffidence I submit that I would not wish to make any precise statement on the position of a particular, named company. Looking at the generality of the position, the whole essence of the Bill is to fix the notion of corporate manslaughter where there is gross negligence disclosed on the part of senior management. Obviously, one does not wish to get involved in any particular example that may immediately come to mind. I hope that the noble Lord will accept that the general intention behind the whole point of the Bill is to deal with issues where there is gross negligence that has resulted in a death and that may be stigmatised, or characterised, as corporate manslaughter.

Lord Hunt of Wirral: he noble Earl, Lord Mar and Kellie, put his finger on the key to why I raised these points. The noble and learned Lord responded in a very constructive way. These provisions were added in another place on Report in response to points being made in Committee where there was no real opportunity to discuss them. Therefore, we are playing our part in the bicameral system by ensuring that where the other place has not had an opportunity to discuss and hear the Government’s explanation, we should ensure that the explanations go on the record. The noble and learned Lord has explained that the original exemption, in the Government’s view, after debate in Committee, went too far. It has been very helpful to hear the reasoning behind the way in which the Government have now amended the Bill.

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The noble Lord, Lord Wedderburn, raised two separate points. I am sure he is right, as indeed the noble and learned Lord has explained, that the phrase,

does not apply to bodies that then follow in paragraphs (e), (f), (g), (h) and (i), as I understand it. The noble and learned Lord has explained that. The noble Lord, Lord Wedderburn, is right. In fact, I was not going as far as the noble Lord thought I was. I was merely seeking a more adequate explanation of the way in which Clause 6, on emergencies, is now drafted. The noble Lord, Lord Clinton-Davis, probably guessed that that was the case. I wanted to hear why we now have Clause 6 in its current form. I would welcome the opportunity to consider carefully what the noble and learned Lord has just told us. In the mean time, I beg leave to withdrawn the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees: Noble Lords might find it helpful if I point out that they have no need to say, “Before the Minister sits down” in Committee. Whether he is sitting down or is even recumbent is irrelevant; they can ask as many questions as they like of the Minister.

Lord Henley moved Amendment No. 60:

The noble Lord said: Amendment No. 60 stands in my name and that of my noble friend. In moving it, I will speak also to Amendments Nos. 65, 67, 68 and 71. These are further amendments that would remove amendments added by the Government on Report in another place. They take out a series of references to how the term “emergency circumstances” could be construed and consolidate them into one subsection. The meaning of the clause in that respect therefore remains unchanged, in that where circumstances were believed to have been emergency circumstances, they will count as such. I am sure that the noble and learned Lord will clarify that, and I should be interested to hear the rationale behind including those words. I look forward to his response. I beg to move.

Lord Davidson of Glen Clova: The amendments in this group once again seek to test the Government’s thinking behind amendments made to the Bill in another place. I welcome the opportunity to explain why those changes were made.

Amendments Nos. 60, 65, 67 and 71 reverse technical changes made to Clause 6 to avoid needless repetition of the same phrase. Multiple references to,

were removed from the clause and replaced with subsection (8), which provides that every reference to “emergency circumstances” within the clause includes a reference to,

The amendments would therefore make no substantive change to the Bill.

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Amendment No. 68 proposes a limitation on the application of the emergency services exemption to NHS bodies in response to concern expressed in another place about the width of the exemption as initially drafted. In particular, it was felt that the exemption could be interpreted to extend to NHS bodies in a very wide range of circumstances; for example, it could apply to the treatment of any patient in immediate danger, whether at the scene of an accident or on a hospital ward.

That was not the Government’s intention, so we made changes to the clause, which will be debated in detail in relation to later amendments. In brief, we tightened Clause 6 so that the only treatment decisions that can be covered by the exemption are prioritisation decisions taken in an emergency. So, for example, decisions regarding the order in which patients receive medical attention in an emergency would be exempt. Such decisions are a core element of how NHS personnel manage their responses to an emergency, and we do not think that it would be in the public interest for the threat of criminal liability to distort the way such decisions are made. No other treatment decisions would be exempt, however.

The amendment tabled by the noble Lord, Lord Hunt of Wirral, offers a different route to restricting the application of the exemption to the NHS. It does so by providing that medical treatment cannot benefit from the exemption if it is administered within any kind of healthcare facility.

While I see some attractions in this approach, I also think that it potentially leads to some difficult and possibly arbitrary distinctions in terms of what should qualify as a healthcare facility and where the precincts of the healthcare facility would end. For example, is a chiropody service, situated miles away from a casualty department and with no advanced resuscitation equipment, included within the definition of a healthcare facility? Is a hospital car park included?

I am not sure whether it would always be clear to providers of healthcare services where the limits of this exemption would lie. Furthermore, we can envisage situations in which emergency circumstances could occur within the precincts of a healthcare facility where the exemption ought to apply. For example, if there were a viral pandemic, hospital staff may need to prioritise responses to those affected. Such a response should not be within the scope merely because it occurs in a hospital.

It is for this reason that I prefer the Government’s approach. By making it clear that treatment decisions are not exempt except where they are prioritisation decisions taken in order to manage an emergency, we provide clarity for the emergency services and avoid the risk of defensive practices, which uncertainty might encourage. I hope that the noble Lord will withdraw his amendment.

Lord Henley: I am very grateful to the noble and learned Lord for his explanation of the amendments. I beg leave to withdraw Amendment No. 60.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

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Lord Davidson of Glen Clova moved Amendment No. 62:

(ii) made with the Secretary of State or with the Welsh Ministers;”
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