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The noble and learned Lord said: My Lords, in the absence of my noble friend Lady Scotland, I am pleased to be joining the consideration of the Bill. I am pleased that the first time I rise is to move an amendment that responds positively to concerns which have been put by a number of noble Lords and is supported by the Official Opposition—at least, the noble Lord, Lord Hunt, has added his name to it. I do not think that I will be in quite that position later.

The amendment deals with the extension of the offence to unincorporated bodies. The Bill that was introduced in the other place focused on the question of corporate liability for corporate bodies. The mischief that the reform seeks to address is the difficulty that has arisen in practice, under the identification principle, of prosecuting large corporate bodies for very serious management failure. To deal with that, the new offence defines a liability for management failure, which is not dependent on the guilt of a particular individual. The problem of finding a person to be liable for this is sidestepped in the case of a corporate body, because liability can be attached to the corporate body itself, distinct from any specific individual.

The circumstances are somewhat different with unincorporated bodies. These exist as a group of members or individuals, with no separate legal personality. The question of attributing liability to the body does not arise because there is no body as such. So there are some differences between the position of corporate bodies and unincorporated associations.

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However, we recognise that the offence goes deeper than simply setting out the legal liability of the corporate body. It is primarily designed to offer accountability where the way in which an activity has been managed or organised has been grossly deficient but no individual can be identified as responsible for that failure. Those are circumstances that can exist whether an organisation is incorporated or not, and we recognise the concern about extending the offence to such organisations.

The amendment extends the offence to partnerships, trade unions and employers’ associations. I freely acknowledge that we are still taking a cautious approach to the extension. As it happens, unincorporated bodies are not currently liable to be prosecuted for gross negligence manslaughter; they include a wide range of smaller and informal groups, including those in the voluntary and charitable sectors. Those smaller organisations are less likely to have access to advice about the implications of the new offence and they may act in a way that is risk averse to it. We would not want to see that extending the offence had the unfortunate effect of discouraging organisations from undertaking worthwhile activities. On the other hand, the concern is that a lacuna in the law will be left if larger organisations are excluded from the offence.

We have sought to meet this balance by extending the offence in the first instance to a defined range of unincorporated bodies such as partnerships and bodies that already have a quasi-corporate status under statute—trade unions and employers’ associations. That will extend the offence to a range of organisations closely associated with work and business activities which already have an identity as an organisation if not a corporate personality. The amendment also proposes that those sorts of organisation would be covered only if they are themselves employers. That does not mean that they are only covered in respect of duties to employees: they will be responsible under all the relevant duties under Clause 2. But organisations that do not employ staff will not be covered. Noble Lords may think that that has two benefits. First, it will inevitably focus on larger organisations rather than very small ones. Secondly, it will reflect the existing legal position because under the Health and Safety at Work etc. Act 1974 unincorporated bodies will owe general duties to staff and the public. This would not be imposing a new duty on those who are not subject to some duty already.

It was then thought right to allow for the possibility that further bodies might be included in the future. That is the purpose behind Amendment No. 51, which provides a power to extend the offence to further categories of organisation by secondary legislation subject to the affirmative procedure.

I draw noble Lords’ attention to the fact that the Delegated Powers and Regulatory Reform Committee published a report today that expresses concern about the extent of this power. That gives rise to a difficulty. The Government have thought it sensible to start with a clearly defined range of organisations which frequently share many of the characteristics of corporate bodies. That is intended to be coupled with

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a relatively straightforward way of extending the offence in the future, if that seems to be appropriate. Comments from noble Lords and other quarters have supported the idea of extending the offence, so we are going with the grain in seeking to do that.

The Delegated Powers and Regulatory Reform Committee suggested that we ought to identify the sort of body that the offence might extend to rather than leaving the power general. That is not straightforward. It is not at all obvious to us what sort of bodies the offence might be extended to that would not be included in any form of formulation that we put forward. When one looks at the possibility of defining the sorts of bodies that might be covered, particularly in line with comments that have been made so far, one would probably end up with something that was no narrower than the general power proposed at the moment.

Recognising that the committee wanted a justification for why there should be a power, that is what I have been seeking to put before your Lordships. Put shortly, in practical terms, there does not seem to be a great deal to choose from at the end of the day between the power proposed in Amendment No. 51 and one that seeks to set out more clearly the categories of body, but that is a matter for your Lordships, of course.

Other amendments in this group are also consequential on extending the offence to unincorporated bodies. Amendment No. 41 ensures that there is no loophole in the offence because partnerships do not themselves owe a duty of care. It also makes provision for partnerships to be treated in a manner similar to corporate bodies when being prosecuted for the offence. The opportunity has also been taken to put a number of definitions that are used in various parts of the Bill in a single interpretation clause. That is set out in Amendment No. 52. Consequential amendments remove the various single definitions.

In summary, the Government hope that in putting forward Amendment No. 1 we have addressed a concern expressed by many that the Bill should extend to a wider range of organisations. The Government have accepted that argument but believe that caution is still needed in how that is progressed. That is why the amendments are put forward on the basis that they are. I beg to move.

Lord Hunt of Wirral: My Lords, I very much welcome the Government’s U-turn on this whole question of unincorporated bodies. I have added my name to Amendment No. 1 because it is precisely what I sought to persuade the Government about in Committee. However, the Bill has been in existence for a very long time. I rather share the view of the Delegated Powers and Regulatory Reform Committee that:

I hope that the noble and learned Lord the Attorney-General will learn lessons from this episode. It is very important indeed, particularly when a Bill of this complexity reaches this place, to make sure that we have adequate notice of the amendments. I remain uneasy about Amendment No. 51.

The noble and learned Lord has in effect said to the House that he is not sure that the Government can do this any other way. However, he owes it to the committee and to this House to spend a little more time thinking about ways in which this power could be circumscribed in a little more detail. With that proviso, I very much welcome what he said. However, he needs to take on board and consider more carefully the committee’s recommendations.

Lord Razzall: My Lords, I join in with the remarks of the noble Lord, Lord Hunt. This topic caused significant concern when we debated it in the Moses Room. We are extremely pleased that, even at this late stage, the Government have moved to meet the concerns that these Benches and the Conservatives touched on.

I also share the noble Lord’s views about Amendment No. 51. As the Minister indicated, a significant difficulty arises when an amendment tabled this late elicits a report from the Delegated Powers and Regulatory Reform Committee, which says in substance that it has not had the opportunity to consider the matter properly.

I hope that the Minister accepts that these Benches have no wish to divide the House on Amendment No. 51 at this stage, particularly as its substance is exactly what we argued for in Committee. Therefore, it would be a foolish move. As the noble Lord, Lord Hunt, indicated, between now and Third Reading the Government could determine whether they could table an amendment to meet the concerns of the Delegated Powers and Regulatory Reform Committee to enable us to re-examine the matter at Third Reading. That would perhaps be an exception to the normal principle that the Government and the House authorities are trying to ensure; that we do not vote on Third Reading. As the noble Lord, Lord Hunt, indicated, this Bill has been subject to extraordinary scrutiny, and we now have these amendments being tabled at a very late stage, so perhaps this could be an exception and we could consider it on Third Reading.

4.30 pm

Lord Wedderburn of Charlton: My Lords, I have one comment to make. The noble and learned Lord knows as well as I do that there is no law that an unincorporated association must be small. If I may say so, it is wrong to criticise the Government for taking a very sensible path in Amendment No. 51. For example, the Government could have representations from a trade union or other body that its employees were working in a dangerous enterprise run by an unincorporated association, as it could

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be—“unincorporated” does not include only the clubs with which noble Lords and the Opposition normally associate it. It could be large, and the Government might then have to consider whether the Bill should apply equally to such an enterprise as to many others. It seems to me that Amendment No. 51 is essential to the Government’s compromise position on this question.

Lord Goldsmith: My Lords, first, I am grateful for the general welcome that the amendment has received. One stands here on behalf of the Government in the usual position; if you do something that others want, you are criticised for having left it too late or for having made a U-turn. We have listened, and we have come forward with an amendment. The important point is that the principles of the amendment are accepted and are welcome to the House. Of course, I take on board what the noble Lord, Lord Hunt, said, about lessons being learnt, and I will make sure that his comments are passed on to the Bill Ministers.

On Amendment No. 51, I am grateful to the noble Lord, Lord Wedderburn, for his support. He is absolutely right; we have got to move forward. I take the point, and the noble Lord is right to say, that what has probably happened here is that the committee felt that it has not had enough time to reach a final view on this. I propose to the House that when we come to it, I will move Amendment No. 51 as it stands, on the basis that the Government will consider this further between now and Third Reading. If it seems appropriate to table a further amendment defining in some further way the category of bodies, we would table such an amendment. Obviously, I am not guaranteeing that such an amendment would be tabled, but it certainly would be considered.

On Question, amendment agreed to.

Schedule 1 [List of government departments etc]:

Lord Goldsmith moved Amendment No. 2:

On Question, amendment agreed to.

Clause 2 [Meaning of “relevant duty of care”]:

Lord Ramsbotham moved Amendment No. 3:

“(d) a duty owed to anyone held in custody.”

The noble Lord said: My Lords, the purpose of the amendment is very simple; it is to rectify a glaring deficiency in what otherwise has been a generally welcome Bill, by including,

I do not intend to repeat all that was said on Second Reading or in Grand Committee. I rest my case on the stark difference that there is between the rule of law and the provisions of the Bill as they stand on the one hand, and on the other hand the two sets of perverse reasoning put forward by the Government on why neither the rule of law nor the provisions of their own Bill should be applicable to those responsible for the duty owed to anyone in custody.

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I am not a lawyer; but two elements of the rule of law seem to me to apply here. First, there is equality before the law, which means that every official, from the Prime Minister down to a constable or a prison officer, is under the same responsibility for every act done without legal justification. Secondly, there is equal protection under the law. The protection that you receive from the criminal law should not depend on whose carelessness puts your life at risk—a public body or a private company—or what they were doing at the time. Also, there is the provision of Article 2 in Section 1 of the European Convention on Human Rights, which states that everyone’s life should be protected by law.

Before Committee, the noble Baroness, Lady Scotland, who sadly is still not with us, in briefing a number of us said that the Government had been very brave and courageous in breaching Crown immunity in this Bill. Anyone reading it for the first time could be forgiven for presuming that this breach applied to the duty of custody, because the Home Office, and therefore its constituent parts, is included in the government departments listed in Schedule 1. Clause 1(1) states:

Subsection (3) expands on that, saying:

Paragraph 47 of the regulatory impact assessment states:

Paragraph 51 of the RIA states that,

Taken at face value, it seems to me that my amendments are entirely in line with the purpose and content of the Bill, which, as the Government have stated, applies to failures of management and the duty of care when it is owed by government departments and other Crown bodies, both of which are subject to the rule of law that applies to everyone in the country without exception.

However, it would appear that that is not to be. In her briefing, the Minister said that the Government’s bravery and courage did not extend to the inclusion of custody, which was a step too far for government, for reasons that were spelt out in the debates in another place, the Explanatory Notes and the words of the noble and learned Lord the Advocate-General for Scotland and the noble Lord, Lord Bassam, at Second Reading and in Grand Committee. But neither of those reasons seems to stand up to scrutiny.

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In Committee, the noble Lord, Lord Bassam, said that the offence of corporate manslaughter,

But my amendments, then and now, are nothing to do with either core government decision-making or resources. They are entirely to do with the clauses of the Bill that I have already quoted; namely, the performance of management and the duty of care. We live in a pretty curious world where public sector management has to be good or where the owed duty of care applied is subject to core government decision-making based on resource constraints.

Responding to that reasoning, the noble and learned Lord, Lord Lyell of Markyate, said in Grand Committee that the Minister,

leading to the death of one Zahid Mubarek—

The other reasons put forward are that deaths in custody are already subject to public inquiry, inquests, internal inquiries and those conducted by the Prisons and Probation Ombudsman, but those do not stand up to detailed scrutiny either. In view of their track record on this matter, I am surprised that the Government dare to mention public inquiries in their support, because throughout their life successive Home Secretaries and senior officials, such as directors-general of the Prison Service, have resolutely and consistently opposed every application for a public inquiry into a death in custody. The only inquiry that has taken place, into the murder of Zahid Mubarek at Feltham in 2000, followed the determination of the family over four years, despite many rebuffs, and finally the direction of this House.

The Government make frequent reference to their wish to rebalance the criminal justice system—whatever that means—in favour of the victim. To whom do the Government owe more responsibility and explanation than a victim who has lost a loved one who was in their care? I have always taken the line that someone with nothing to hide has nothing to fear from disclosure and everything to gain from having events such as deaths in custody opened up to public scrutiny. Therefore, one can conclude only that someone who opposes a public inquiry does so because he has something to hide. When that person is the Home Secretary, who is responsible for the safety and well-being of all those in his custody and care, one is entitled to wonder at his motivation. That

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is why I am concerned at his reported attitude to this Bill: that he will pull it if this House decides to vote for my amendment.

I was going to quote at length, but I shall not do so in every detail. Last week’s issue of the newspaper Inside Time—the national monthly newspaper for prisoners—contains an article by Mr Peter Quinn, a former prison governor and co-author of an official report to identify those members of staff at Wormwood Scrubs prison who are responsible for assaulting prisoners and to determine whether disciplinary action can be taken against any of them. He writes:

So to suggest that these things should follow years after an event does not seem to be very sensible. Mr Quinn also said:

That is not a disgruntled prisoner or a penal reformer speaking but a former prison governor talking about his own service. The Government claim that internal inquiries, such as he was commenting on, that never see the light of day or never result in any disciplinary action in cases where both failure of management or duty of care are proven justify exclusion from the Bill. The third justification—inquest—does not apply either because inquests only go into the causes of death.

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