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As we have made clear, it is uncertain whether a duty of care would be owed in child protection decisions in the first instance, so Clause 7 merely clarifies to local authorities the situations in which the offence will not apply. Similar arguments can be applied to exemption for the Probation Service. The amendment would therefore not substantially alter the scope of the offence, but it would remove that necessary clarity. This would create uncertainty about the scope of the offence in areas where this could easily lead to damaging risk-averse practices being adopted. That would not be a happy consequence in this important legislation. We have therefore framed a narrow exemption of specific statutory functions on the basis that this offers the child protection and probation services clarity about where their liabilities should lie. I hope that that explanation satisfies the noble Lord. I am very grateful to him for the way in which he moved his amendment.

Lord Cotter: I thank the Minister for his response. I also thank the noble Lord, Lord Henley, for his support for the amendment, and congratulate him on his foresight that the Government would resist it. The Minister has spoken to defend the Government’s stance, and his response has included stating that criminal prosecution is not seen to be appropriate. I feel it will be necessary for us to study in detail what he has had to say with a view to returning to this issue on Report. Notwithstanding whatever is said, these issues remain highly important, and I am sure that many others outside this House will feel the same. The terrible events of the Victoria Climbié case and of other cases could occur again. I only express the hope that the fact that we have addressed the child protection issue today will at least continue to alert people to their responsibilities in the future. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 73 not moved.]

Lord Henley moved Amendment No. 74:

The noble Lord said: I can be fairly brief on Amendments Nos. 74 and 75, which address amendments added by the Government on Report in another place. Perhaps I may I say on behalf of the whole Committee how much we wish to see the noble Baroness, Lady Scotland, returning to her duties as soon as possible. No doubt the noble Lord, Lord Bassam, feels much the same.

Lord Bassam of Brighton: I am very sympathetic to that.

Lord Henley: The noble Baroness will have to take on other Home Office Bills, and no doubt the great legislative mill in the Home Office will continue to grind them out in a way that we will keep her and the noble Lord, Lord Bassam, fully occupied.

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The noble Baroness sent me a very useful letter, which I think was copied to all those who took part at Second Reading. She touched on these matters, stating that the government amendments will provide the exemption only on decisions about whether a child should be taken into the care or supervision of a local authority rather than applying it more widely to the provision of services to children and families.

All I really wish the Minister to confirm is that, as his colleague in another place stated, the amendment brought forward in another place on Report will ensure that certain potential scenarios will not be exempted; for example, where checks had not been carried out on foster parents and it was later discovered that they had committed offences on children in the past and had then killed a child placed in their care by the local authority. Will he confirm that such a gross failure on the part of the local authority could be captured?

I maintain that where there are gross negligence failures in management within a local authority or a public body which result in the death of a child, they should be held responsible through criminal trial. There can be nothing more criminal than the gross neglect of such a child’s needs. However, I acknowledge the difficulties within the childcare system. Therefore, I await the Minister’s response with interest. I beg to move.

6.15 pm

Lord Bassam of Brighton: We have had some useful detail on exemptions in this area. I shall try to speak as briefly as I can, but I take the point that the noble Lord, Lord Henley, made. He is absolutely right; this is part of a package of amendments that did not perhaps get the discussion that it deserved.

In another place the Government tightened the child protection exemption so that it exempts a small number of statutory functions relating to decisions made to safeguard the welfare of children. Only local authority and police functions carried out under Parts 4 and 5 of the Children Act 1989, and the equivalent orders in Northern Ireland, are now covered by that exemption. I believe that I touched on that earlier. These parts of the Act now cover a narrow range of decisions relating to the welfare of a child and in most circumstances the local authority would not owe a duty of care in respect of such decisions. The purpose of this exemption is to make it clear that such decisions are not within the scope of the offence. To leave that in doubt could encourage local authorities to be over-cautious, with the possibility that they would seek to remove children from their families unnecessarily. We do not think that would be in the interests of children or families. It would also be very much at odds with the Children Act, which places a statutory duty on local authorities to promote the upbringing of children by their families.

But local authority functions in relation to children are not otherwise exempt from the offence except where these are matters of public policy or exclusively public functions covered by the general exemption in

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Clause 3. So, if a local authority provides services to a child—for example, by providing accommodation or arranging foster care—a serious management failure in the provision of those services which led to and caused the death of a child would be within the scope of the offence. The same would also be true of contracted-out services. If a local authority did not have proper quality assurance systems in place for commissioning others to provide services on its behalf, or did not take action if it knew, or ought to have known, that a child placed, for example, in a privately owned children’s home was at risk of serious harm, again there would be no exemption from potential criminal responsibility.

We think that this exemption strikes the right balance. The task of dealing with children at risk is extraordinarily difficult. Deciding the best interests of a child requires a careful balancing of many factors. We would not want such decisions to be distorted by the fear of investigation or prosecution. So we think it is necessary that a limited range of functions are outside this offence. But where a child is in the care of, or receiving services from, the local authority, that local authority must do everything it can to ensure that its services and those providing them do not cause harm to the child or its family. It is not our purpose to prevent prosecution of serious management failures in the provision of services that directly cause a child’s death. I hope that such circumstances would be extremely rare and not ones that we had to contemplate frequently. It certainly is not the case now. I hope that the noble Lord is satisfied with that explanation, which fleshes out a little more the explanations that were given on the range of exemptions.

Lord Henley: As I said, I think there are difficulties here, and certainly following the response of the noble Lord to the earlier amendment moved by the noble Lord, Lord Cotter, and to this amendment, we shall look carefully at those responses because this is something we shall want to return to at the Report stage in a fuller House when others might want to be involved. With that in mind, for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 75 and 76 not moved.]

Clause 7 agreed to.

Lord James of Blackheath moved Amendment No. 76A:

The noble Lord said: This amendment reflects a concern I have expressed since our first meeting with the noble Baroness, Lady Scotland, the day before we began our consideration in Grand Committee. I have heard no reference at all to this issue and it continues to concern me greatly. I should declare an interest as the chairman of two trusts, although I do not think that either of them has any impact here.

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The Bill is completely silent on the question of the responsibility or obligations of trustees. This may seem to let trustees off the hook, but, having been prompted yesterday, I have to admit that while I am an amateur in the matter of law, I hope that I am a professional in the matter of running companies, having served as chairman of 10 public companies over the past 20 years. In that time I have come to understand that the responsibilities of a director evolve upwards on to the trustees of a charity that owns the corporate entity on which that director serves. If that is the case, then the trustees are caught by that inference for anything which is amiss in the conduct of a corporation on the part of the directors. They share in the responsibility, which could become a buck-passer’s charter for a board if it allows that responsibility to devolve to trustees. That could be seriously detrimental to a number of interests within our community.

Let me give some examples of this. In many cases charitable trusts own what might be called “dangerous assets”. They own mountains or ski slopes, or sailing ships that are used for training of young people. These are areas in which there is a considerable risk that injury or death can occur. But the charities themselves in most cases work through the ownership of a corporate entity, which administers the assets vested in the trust. Those corporate entities have board members who are paid salaries to run the business professionally. The trustees are effectively the shareholders of the ultimate beneficiaries of the trust, working on their behalf to see that the assets are properly administered for them, but they do not directly manage those assets. I can see a situation here where a great injustice will be done to trustees. They are already an endangered species and good ones are very hard to get today. People are unwilling to step forward and offer their services. Trustees could be held accountable for the liabilities of serious damage claims that arise in a way which is unfair in a situation where the corporate entity had maladministered the assets to the point where a death had occurred. If that were to happen, there would be two levels of injustice, one on the trustee himself for being so persecuted, and the second because the corporation would not itself be the party held to account in terms of being fined or liable to pay compensation and so forth.

If this is a correct analysis of the situation, so that the trustees have to accept ultimate responsibility for the corporate directors, we will find that there is a dearth of people who are prepared to serve in the vital role of trustee throughout our leading charities, leading to a great loss of expertise and skills. Trustees are in the main unpaid people, usually with considerable business and commercial experience who are at the end of their careers, and they will not be prepared to put themselves into situations as risky as this.

Accordingly, I ask for these words to be included as a means of clarifying once and for all that trustees will not be held accountable for corporate manslaughter and that the liability will remain where the name of the Bill implies that it should; at the corporate level. I beg to move.

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Lord Bassam of Brighton: I suspect there is probably quite a short answer to the noble Lord’s point. I am grateful to him for having made it. It takes me back to some long debates on charity law that we had in this very Room last year and the year before during consideration of the Charities Bill. The question of trustees arose then. I am sure the noble Lord has a point about ensuring that we have an ample supply of quality trustees into the future, because those trustees do a very valuable job, and no one should assume that it is easy to find them. I know that from my own experience doing charitable work.

Where a charity works through a company, it is the company, not the trust, that could be prosecuted. As the trust is not a corporate body, it will not be covered by the offence. Neither does the Bill affect the position of individuals. That may have escaped the noble Lord, although I am not saying that it has. This is solely about corporate prosecutions. Individuals will be no more liable than they currently are under the law, so the deterrent that is rightly of concern here should not come into play because the body corporate, not individual trustees, will be caught by the offence. That important distinction may have caused the noble Lord some understandable concern. I hope that that answer, simple as it is, provides some clarity and assists him.

Lord James of Blackheath: I am grateful for that response. In the spirit of that response, will the Minister consider including some clarifying statement to make that point clear, because the very fact that there is no reference here is causing misunderstanding? I know of one major bank that is issuing instructions to all the trusts that it controls to beware exactly the hazard that I have described. It will be very detrimental.

Lord Lloyd of Berwick: If it is any comfort to the noble Lord, I cannot imagine any circumstances in which trustees could be liable under the offence of corporate manslaughter.

Lord Lyell of Markyate: The noble Lord, Lord James, has made a very interesting point. I am not sure whether we should be too complacent—perhaps complacent is not the word. We should recognise that many people will be responsible, although they have absolutely no commercial interest whatever, and certainly no financial interest, in what they are doing. I declare my interest, as I have done several times, as chairman of Stowe School. I am also a trustee, in some respects, of various trusts. Stowe School is a company limited by guarantee. Neither I nor any of the other governors receive any emoluments, and others in this Room and certainly in this House will be very similarly placed. Indeed, the noble and learned Lord, Lord Lloyd, was a governor—I forget the exact term—of Eton at some time. He and I, as people with important responsibilities, were certainly taking on potential responsibilities towards the limited company or otherwise that organised the school. You do not get paid for it, but you do take responsibility. Yes, the corporation would be found

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guilty in a corporate manslaughter case, but you would feel very much involved and very ashamed if corporate manslaughter had occurred.

Sometimes one may be a trustee and sometimes one may not. In some respects I was very comforted to hear the noble and learned Lord, Lord Lloyd, say that the trustee would not be responsible. But I should have thought that the trustee might well feel obliged to be careful to see that those who actually managed the operation in question did so in a thoroughly responsible way that did not give rise to corporate manslaughter. I do not want there to be any feeling that somehow because you are a trustee you do not have any responsibilities. As regards the exact legal position of the trustee as opposed to that of the director of the company limited by guarantee, I confess that even to a fairly experienced lawyer such as myself the distinctions seem more theoretical than practical. That is my understanding of the position.

6.30 pm

The Government are placing a great deal of responsibility on a great many people who obtain no financial remuneration whatever. I suspect that the provision will apply to trustees of charities which run commercial operations. The Royal Society for the Protection of Birds charity runs the most enormous commercial operation. In so far as it runs that commercial operation, I believe that it could in theory be potentially liable under the Bill for the measure that we are discussing. I do not know whether the Minister can throw further light on the matter. My speech was not very illuminating but serves to say at least, “Don’t think that you are not responsible just because you are not paid”.

Lord Bassam of Brighton: There is not a great deal to add. The comments of the noble and learned Lords, Lord Lyell and Lord Lloyd of Berwick, were very helpful. I understand where the noble Lord, Lord James, is coming from. On his point of including a measure in the Bill, it is worth the noble Lord turning his attention to Clause 16, which has the bold heading, “No individual liability”. Clause 16(1) states:

That appears in the Bill. However, as the noble and learned Lord, Lord Lyell, rightly said, that does not mean that those involved in a position such as that of a trustee do not have an overall responsibility for ensuring that an offence is not committed. Clearly, they have a role to play, but it is ultimately the corporate body which is guilty, not the individuals. Therefore, the scenario that the noble Lord, Lord James, envisages should not apply. We should all play our part to encourage people to continue to come forward and undertake the valuable work that trustees do in charitable organisations and trusts, even those which are profit making, or perhaps especially those which are profit making as they tend to have a rather larger range of activities.

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Lord Wedderburn of Charlton: Does the Minister agree with me that this amendment is extremely valuable in one sense, although I agree very largely with the substance of what the noble and learned Lord, Lord Lyell, said? It is extremely useful in the sense that it directs attention to an issue which has been before the Committee before, that a duty of care may arise not only from the law of tort—as I am in the presence of distinguished Scottish lawyers, I should also perhaps say reparation; I hope that is right—but also from other sources. Trustee duties and trustee-like duties—which is the history of directors and various other persons, with which I shall not bore the Committee—arise largely from equity. It is one of the curiosities of our law that although law and equity are now administered together by the judges in the same court at the same time, nevertheless the obligations that flow from an equitable base have never been thoroughly put together with those that derive from the common law.

There is a duty of care owed by a trustee, but personally I do not think that they need be too worried by the Bill as it stands, even if the amendments were moved that would admit aiding and abetting. But of course there are a lot of sources for duties of care apart from the law of tort. If any of those duties were relevant, it would be very curious if they were excluded by the Bill when someone is operating in a normal commercial way and owes duties from a number of historical sources. It is a historical oddity to regard the law of negligence in a layman’s sense as derived only from the English common law or even the Scottish common law of tort or reparation.

I have no doubt that the noble Lord will want to think about that. It is of great value that this amendment sends our minds to that general issue in the Bill, which I am sure we will want to look at again on Report.

Lord James of Blackheath: I am grateful to the noble Lord, Lord Wedderburn, for his helpful comments. Will the Minister look briefly at what I regard as the most extraordinary wording in all these papers, which is in the allegedly helpful Explanatory Notes? Paragraph 54 on page 14 refers to Clause 16, which is headed, “No individual liability”? Paragraph 54 seems to set out to confirm that there is no individual liability, yet arrives in mid stream with a statement to the effect that anybody aiding and abetting may be guilty, and that:

That is a formula for complete confusion.

Lord Lloyd of Berwick: I made that point some two days ago. I wish that the Minister would abandon that explanation because it does not make sense, or at least only in the most subtle way, which I think will escape almost every mind—certainly mine.

Lord Bassam of Brighton: I am not keen to extend this debate much further because I am not sure that there is a great deal of merit in doing that. It is worth devoting time and attention to the comments of the noble Lord, Lord Wedderburn. I shall study what he said with interest. I am sure that he is about right.

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On the point made by the noble Lord, Lord James, on the Explanatory Notes, I believe that they are clear in most regards. Paragraph 54 is descriptive, but it further states:

The paragraph makes that provision clear. Therefore, I am not sure that the noble Lord’s observation is correct. However, the paragraph comprises a description of the Bill as it arrived from another place. It is designed to be as helpful as possible. It does not go into absolute and finite detail but, as I read it, it is fairly clear. Others may be confused, but I am not.

Lord James of Blackheath: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Factors for jury]:

[Amendment No. 77 had been withdrawn from the Marshalled List,]

Lord Henley moved Amendment No. 78:

The noble Lord said: In moving Amendment No. 78 I wish to speak also to Amendment No. 78A, which stands in the name of my noble friend Lord James of Blackheath.

Amendment No. 78 would delete the word “attitudes” from the factors that the jury must cover when considering evidence in a case. It is a simple drafting amendment but it seeks to tease out a potentially deeper problem.

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