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Aiding and abetting can, in some circumstances, be constituted by an omission. In 1940, the Lord Chief Justice Lord Hewart faced the case of Rubie, an experienced driver who just sat in the car and did nothing when, by the side of him, a learner driver drove recklessly and caused a terrible accident. The Lord Chief Justice said in that case that,
- “it was open to the justices to find, as they did, that, by his passive conduct in circumstances in which what was required was something which was not passive, but active, he aided and abetted the offence”.
It does not take great steps of the imagination to translate that test against some industrial circumstances of a very large enterprise.
If I may, to be fair I shall cite what has been said by the Government. The noble and learned Lord, Lord Davidson of Glen Cova, said in Committee:
- “we do not think that providing secondary liability for the new offence would cover a level of criminal behaviour that is distinct from the culpability required by a conviction for manslaughter”.
“We do not think that by allowing secondary liability for the new offence we would achieve any significant extension of individual liability, but would create a new level of complexity”.—(Official Report, 15/1/07; GC 214.)
Complexity is no defence to giving a wide immunity of this sort. Nor, indeed, is it a question of achieving a new level of liability. It is a question of reaching a second defendant.
The amendment accepts that criminal primary liability is the object and aim of the Bill. What it and Amendment No. 47 do not accept is that secondary liability—the normal rule of law about secondary liability—should be excluded from this field forever. The statements of the noble and learned Lord the Advocate-General for Scotland in Committee are true as far as they go, but they are not to the point of why there should not be secondary liability for anyone who aids and abets.
Finally, I have made my case as quickly as I can. Of course it is a legal case on the point of simple legal analysis: that secondary liability is the normal rule of law; that the Bill excludes it; and that the Government take away the amendment and think about it, which is what I am asking for tonight. I am asking that the Government think again about the circumstances raised by Amendment No. 8 and come back at Third Reading having rethought the idea of secondary liability in general. However many cases there may be, however few they are, if there were a case of aiding and abetting the offence under the Bill, there should be criminal liability under the normal rule of law.
The noble and learned Lord said earlier something to the effect that we want everyone to be covered by the law. I want everyone to be covered by secondary as well as primary liability, which is why I support the amendments, not the previous ones.
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Lord Whitty: My Lords, I hesitate to intervene in this debate, as I have been unable to take part since Second Reading. I redeclare my interests as a member and sometime adviser of the GMB and as chair of the National Consumer Council.
I follow the noble Lord, Lord Wedderburn, in particular, on this because I strongly support the amendments: in particular, Amendment No. 47. I understood the Minister’s argument about the noble Baroness's previous amendment. I do not necessarily entirely agree with it, but I understand that the Bill is about creating a new offence of corporate manslaughter and that individual primary liability should not be covered in the Bill. It is a thin Bill with a clear purpose. I understand that.
However, in this case, having created a new offence, we are now, via Clause 16, excluding any liability for aiding, abetting or conspiring to commit that offence. As my noble friend—or my noble ex-friend—Lord Wedderburn said, that is surely a novel principle. Secondary liability automatically arises in such cases and the clause is pretty novel in excluding in all conceivable circumstances a secondary liability for contributing to a primary liability. In response to the noble Lord, Lord James of Blackheath, that will appear extremely anomalous to the public. Their confusion is in the exact opposite direction from that which he claims. If someone has made a major contribution to a prima facie corporate manslaughter case, the public will not understand that no prosecution is possible. Therefore, I support Amendment No. 47 in particular.
Lord Bassam of Brighton: My Lords, earlier, we considered whether there should be a new offence that would apply to individuals to make them liable if, through gross negligence, they contributed to the new offence of corporate manslaughter. Now we consider the more novel issue of secondary liability. The question posed by the amendment is in similar territory to the position of individuals under the Bill, but it addresses it in terms of secondary liability for the corporate offence, rather than through a distinct offence.
Much of what I said in response to the earlier debate is equally applicable in this debate. The central focus of the Bill is to find a new and more effective way to attach liability to a corporate body for the offence of manslaughter. Relying on the identification principle and a requirement of individual guilt does not adequately address the question of corporate mismanagement that should underpin corporate liability in this area.
Clause 16, to which noble Lords have referred, and which Amendment No. 47 would remove, goes a step beyond simply creating a new corporate offence and removes secondary liability for that offence on the part of individuals. That is a departure from the general principle of secondary liability in the criminal law, but it is done with good reason. The Law Commission’s report in 1996 stated that the new offence was intended to stand in parallel with homicide offences relating to individuals, representing a particular means for attaching an offence of manslaughter to an organisation. It was not intended
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If there are questions of gross negligence on the part of an individual, we think that proceeding should be taken under existing law, not as a matter of secondary participation. I shall repeat some of the arguments that we adduced on Report. They may not necessarily find favour with my colleagues.
We are not satisfied that providing for secondary liability in respect of the new offence would deal with a distinct level of culpability not already covered by current law. To show that an individual was secondarily liable for an offence, it is generally necessary to show that the accessory had a similar state of mind as the main offender, or at least knew or intended that the offence would be committed. In the context of corporate manslaughter, that would mean that an individual would need to be aware of the picture of failure in the organisation, at least contemplate it being grossly negligent and act in a way that supported or sought to bring that about.
In those circumstances, it is likely that an individual charge of manslaughter would be possible. If those circumstances were to be present, it is appropriate that the individual should be prosecuted for manslaughter in his or her own right, not for a secondary offence.
Lord James of Blackheath: My Lords—
Lord Bassam of Brighton: My Lords, this is Report. We have been tolerant, but perhaps the noble Lord will let me develop my argument.
In particular, that would put the individual at risk of maximum sentence of life, as opposed to seven years, as under the amendments. On the other hand, although posing the question of secondary liability would not extend individual liability significantly, it would add an extra layer of complexity to the investigation and prosecution of the new offence. As well as assessing individual liability to existing criminal offences such as manslaughter and under health and safety law, the police and prosecution would need to explore any potential differences between these offences and secondary liability for corporate manslaughter. That would complicate the issues brought to trial, but would not lead to any significant increase in the chance of individuals being successfully prosecuted. That is key.
To conclude, the position of individuals is obviously an important issue for the Bill. The new offence sets out to address the particular mischief in the law that provides for a narrow basis for corporate liability for manslaughter. In doing so, it is not our intention to try to redefine when individuals should be guilty of offences. That would be the effect of allowing secondary liability for the new corporate offence. Excluding secondary liability is novel—that point has been well made—but it reflects the peculiarities of this new offence as a means of defining corporate liability for manslaughter, rather
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Lord Wedderburn of Charlton: My Lords, I would be most grateful if the Minister would allow me to ask a question. Is he saying that, after the first and only debate on secondary liability during the passage of the Bill, apart from ones in Grand Committee in which one can go on and on for ever and no decision is ever taken, the Government will not think about it again at all?
Lord Bassam of Brighton: My Lords, Governments at all times reflect on issues that have been raised in debate, and I am sure that we will continue to reflect on these matters.
The noble Lord, Lord James, argued in summary that duties of care could become too confused. The response that we provided sets out the position as it applies at the moment. Individuals can be liable for gross negligence and manslaughter if they are in gross breach of a duty of care. Complexities inevitably arise when more than one person is involved. That must follow because the position of each person and their responsibilities must be considered. I hope that the noble Lord will think on that response.
I hope that our responses have been helpful. I fully accept that not all noble Lords will be entirely happy with the position that we have reached, but we think that the way in which we have set out the Bill continues to make it workable and takes us a step further along the road in ensuring that we have effective corporate manslaughter legislation on the statute book.
Baroness Turner of Camden: My Lords, I thank my noble friend for that response, but he will not be surprised to learn that I am not very satisfied with it. There have been a number of quite notable submissions in the debate this evening, particularly on secondary liability, and with particular reference to Amendment No. 47, which seeks to remove Clause 16. He has repeated again that he believes that present legislation provides for a remedy. We discussed that in Grand Committee. It was pointed out by a number of people, including my noble friend Lady Gibson, who is a member of the Health and Safety Executive, that to their knowledge very few prosecutions have utilised the Health and Safety at Work etc. Act during her time as a member of the executive. The few that did involved very small companies.
I support what my noble friend Lord Wedderburn has said. We have had a long and quite interesting debate on secondary liability and, although I intend to withdraw the amendment, I urge the Minister to think again about what has been said this evening and to see whether some step can be taken to address
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Amendment, by leave, withdrawn.
Clause 3 [Public policy decisions, exclusively public functions and statutory inspections]:
[Amendments Nos. 9 and 10 not moved.]
Lord Hunt of Wirral moved Amendment No. 11:
On Question, amendment agreed to.
Lord Hunt of Wirral moved Amendment No. 13:
On Question, amendment agreed to.
Lord Goldsmith moved Amendments Nos. 14 and 15:
On Question, amendments agreed to.
Lord Goldsmith: My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion I suggest that Report begin again not before 8.35 pm.
Moved accordingly, and, on Question, Motion agreed to.
Psychology, Psychotherapy and Counselling: Regulation
7.35 pm
Lord Alderdice asked Her Majesty’s Government what progress they have made in the statutory regulation of the professions of psychology, psychotherapy and counselling in the past six years.
The noble Lord said: My Lords, I am grateful for the opportunity to return to an issue that has concerned me for some time. I start by declaring an interest in that I am a consultant psychiatrist in psychotherapy and run a centre for psychotherapy—an NHS facility—in Belfast. I also refer colleagues to the reason for the terms of the Question, which refers to progress in the past six years. This is the period since I introduced a Private Member’s Bill in your Lordships’ House for the purpose of introducing the statutory registration of psychotherapists. I had become increasingly concerned that some psychological therapies were being carried out by people whose training, practice and in some cases ethical standards were of variable quality. While this was not good for the profession, it was extremely dangerous for the vulnerable people who sought help, as was clear from those who came to be treated by my team, having had damaging experiences at the hands of what one might describe as wild psychotherapy.
Mine was by no means the first attempt to address the problem. The 1971 Foster report into scientology
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In the 1980s, a series of conferences of practitioners addressing the statutory registration of the psychotherapies culminated in the establishment of the United Kingdom Council for Psychotherapy. However, the most eminent psychoanalytically orientated organisations, and indeed others, were unhappy on several professional grounds and split away. The psychoanalysts and analytical psychologists formed the British Confederation of Psychotherapists, now the British Psychoanalytic Council.
It must be said, too, that many practitioners inside and outside the NHS were not members of either of these bodies. Successive Governments have understandably been reticent to tackle the regulation of such a divided profession. Indeed, it is not an easy task, especially when one adds in the other bodies of what one might loosely describe as psychological therapists, in particular psychology and counselling, neither of which yet have a regulatory framework governed by statute.
Recent years have seen a rise in public concern about the practice of healthcare professionals, and the increasingly strict statutory regulation of the training, practice and continuing professional development of those responsible for physical treatments of physical disorders. Under the law as it stands, however, anyone can describe themselves as a psychologist, psychotherapist or counsellor, and a person seeking treatment has no statutory register to consult that will enable them to clarify who is reputable and who is not. It is simply no longer acceptable that there is so little protection for those who seek psychological treatments, and who are if anything even more vulnerable than the physically ill because of their emotional and mental disturbances. If most therapists operated within the National Health Service, one might at least have some assurance that the context and supervisory mechanisms of the NHS would give some protection to both professionals and patients.
However, this is not the case. A very large proportion of counsellors and therapists in the UK operate outside the NHS, perhaps as many as 70 per cent. This is not entirely a matter of choice. The absence of proper resources for psychological treatments has pushed many patients and professionals outside the NHS. Despite repeated commitments to alternatives to drug treatments for mental and emotional disturbance and the clear and mandatory guidelines of the National Institute for Health and Clinical Excellence, the Government and the NHS have failed to make the necessary resources available. In the case of psychotherapists and
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The absence of statutory registration suggests to trusts and employing authorities that, whatever NICE says, the Government regard these treatments as being of marginal importance. This impression is strengthened when one compares the amount of money spent on pharmaceutical products and research with that available for research on psychological treatments and the employment of psychological therapists. If employers saw an officially recognised professional career structure for psychological therapists and a statutory framework to ensure proper practice and a procedure—to which aggrieved clients and others could have recourse—they might be encouraged to invest more. The complete absence of any statutory requirements or structures for psychotherapy is unacceptable. Sooner or later a number of cases will emerge—tragically, probably in the tabloid newspapers—in which unsatisfactory practice will result in a strident public demand for “something to be done”.
The most obvious government response would be to turn to the Health Professions Council established under the Health Act 1999. However, that would not be satisfactory and, after due consideration, was rejected by all the major elements of the professions. The president of the British Psychological Society recently made clear to me that, regardless of the society’s position some years ago when it accepted HMG's invitation to explore the HPC as an instrument for statutory regulation, it is, in his words, not fit for that purpose. Along with the UKCP, the British Association for Counselling and Psychotherapy, the British Association for Behavioural and Cognitive Psychotherapies and others, the society has produced detailed proposals for a psychological professions council. While not part of this consortium, the British Psychoanalytic Council came to the same conclusion—that the HPC was not an appropriate body, but that one which brought together the three professions would be suitable.
Why this dissatisfaction with the HPC? The membership of the HPC is primarily concerned with those who treat physical illnesses, and the way that they deal with training and skills is much less variable. In general terms—and I know that I am not doing justice here—while there is largely a right way of doing physiotherapy, chiropody or microbiological or histopathological tests, there is much wider variation in psychological treatments. The HPC professions are also much more able to set out their skills in the form of protocols which can be followed by people of a range of personalities. It matters relatively little if one technician or physiotherapist has to be replaced with another. The personality of the therapist and the relationship with the client is, however, crucial—indeed sometimes central—to psychological treatments. Therefore, the training, assessing and monitoring of psychologists, psychotherapists and counsellors needs to be quite different. A separate regulatory body is the best way to do that. Frankly, it
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