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Baroness Turner of Camden: My Lords, I thank my noble and learned friend for that response. I am very glad to learn that the Government have taken seriously what has been said on both sides of the

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House on this issue. I am therefore happy to withdraw my amendment and await with interest what he has to say in support of his. Perhaps the noble Lord, Lord Hunt of Wirral, is moving in the same direction. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Military activities]:

Lord Bassam of Brighton moved Amendment No. 17:

On Question, amendment agreed to.

Clause 5 [Policing and law enforcement]:

Lord Henley moved Amendment No. 18:

The noble Lord said: My Lords, I shall speak also to Amendment No. 19. Amendment No. 18 would cancel the blanket exemption given to the police services in respect of the duty of care owed to members of the public in the carrying out of policing or the policing of law-enforcing activities. Amendment No. 19 seeks substantively to redefine the duty of care owed by the police towards members of the public and the separate duty of care owed to its own employees in respect of hazardous training.

Proposed new subsection (3) of Amendment No. 19 sets out the parameters of care that would be owed by the police force to the public and to its own employees undertaking hazardous training. Proposed new subsection (3A) would ensure that, before returning a guilty verdict, the jury would have to be satisfied that there had been a gross breach of a duty of care—that a body’s conduct had fallen far below what could reasonably be expected in the circumstances. That consideration would be circumscribed by the factors that the jury would have to take into account under paragraphs (a) to (d) of subsection (3A)—namely, the nature of the activity or training and the context in which it was performed; other relevant duties to which the organisation was subject; resource constraints; and public interest considerations.

I believe that that is a fairly comprehensive list of mitigating factors, and rightly so, for the purpose of the amendment is not to turn the police service or anyone within it into a scapegoat or to proscribe the extent to which it can carry out hazardous activities. Rather, it is intended to ensure that the admirable aim of the Bill to provide an incentive not to carry out functions in a grossly negligent manner would also apply to the police service.

The Minister will recall—I think that I mentioned it in Committee—the 2000 agreement between the Association of Chief Police Officers, the Health and Safety Executive and the Home Office, which established that the Health and Safety Executive should inspect training areas where hazardous training is being undertaken. The clear principle behind that agreement was that, while one could reasonably expect the training on the day to be hazardous to a certain extent, there was the possibility to mitigate that potential danger through

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thorough preparation. The amendment would not enable a prosecution of a police force when an individual had died as a result of the necessarily hazardous nature of compulsory and necessary training, but it would ensure that where training that need not have been so hazardous in nature has been provided in a grossly negligent manner, resulting in a death, the body responsible could be held to account.

The broad range of mitigating factors seriously limits the application of the offence to all hazardous training. Its sole function is to enable a judge and jury to determine whether in so far as an organisation were able, in its capacity as an organising body corporate, to seek to prevent a death in given circumstances, it did so. I believe that is not an unreasonable request and I hope that in its new, slim-line, simplified form the Minister will at least be able to consider the amendment. I beg to move.

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Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Henley, for the way in which he has moved the amendment. I accept that noble Lords opposite have moved on from their earlier position on this matter and have adopted what one can fairly describe as a more novel approach.

Clause 5 provides exemptions for the police when they are engaged in operational activities. The exemption also extends to other public authorities that engage in policing activities. Our starting point for this exemption was to look at the situations where the civil courts have decided to impose duties of care on the police. The civil courts have exercised great caution over making judgments about how and when the police should have acted. Having considered this carefully, we took the view that they were right and followed that in framing the exemption in the Bill.

The exemption in subsection (3), which the amendment tabled by the noble Lords, Lord Hunt and Lord Henley, would remove, excludes policing and law enforcement activities generally, but does not exclude duties owed as employer and occupier in those circumstances. The civil courts have taken a cautious approach to extending duties of care to the police when they are engaged in operational activities; for example, they have declined to extend duties of care to situations where the police have failed to catch serial killers. We believe corporate manslaughter merits a similarly cautious approach.

There are two main reasons why the courts have been cautious: first, that the courts may be ill equipped to judge certain decisions; and, secondly, that to expose the police to liability for decisions about police operations could seriously distort their priorities. Those arguments are especially relevant to the type of case where the police are being called to account for a failure to protect the public from violent people. For example, in such a circumstance, the courts would have to consider all the reasons why the police did not act, including weighing up the relative seriousness of the other operations that the police were dealing with at the time and whether the police had correctly prioritised their staff and resources.

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We do not think that the courts have the right level of expertise to engage in that sort of evaluation, especially where there are no objective standards by which to measure issues such as health and safety.

We are also concerned that the imposition of liability for manslaughter might make police forces act in an overly defensive way. The issue of being risk averse was made in an earlier debate by the noble Lord, Lord Imbert. This could result in a shifting of priorities to crimes where injury to the public might occur, no matter how slight the injury or how small the risk; for example, from dealing with burglaries to attending every incident of a threat to kill, no matter how unlikely the threat.

I recognise that these arguments carry particular force when considering holding the police to account for failures to prevent killings, where the label of manslaughter would also seem especially inapt. However, we do not think it is straightforward to distinguish this type of policing operation from another where the case for an exemption may be less strong—errors of commission rather than omission. The police do not engage in operational activities except when fulfilling duties to protect the public and enforce the law, where operational choices need to be fairly made. Targeting proactive errors rather than failures might encourage the police to prefer inaction over decisive intervention. We do not want that, so we have drawn a clear line around all policing and law enforcement activities and carefully excluded them from the scope of the offence.

The noble Lords propose an alternative solution that would ensure juries take into account the particular circumstances the police find themselves in—including the nature of the operation, resource constraints that applied at the time and other public interest considerations—when assessing whether a breach has been gross. Although this might in some respects appear an attractive proposition, it is not practical or realistic to expect the prosecution to be able to put before the courts all the considerations that the police had to take into account when balancing their resources in order to deal with any particular incident. Nor would such a solution give the police the clarity they need in terms of when the offence will apply to them. We have been careful to ensure that potential defendants are clear about the circumstances in which they may become liable for this offence. For the police, there are circumstances where no duty of care would be found by a civil court but the position under the criminal law would be uncertain. This very uncertainty could lead the police to act in a risk-averse way, with all the attendant dangers.

On the amendment about hazardous training, the police have to undergo the hazardous training to prepare for dealing with serious disorder. The example used in Grand Committee was where the police experience real petrol bombing in training to deal with riots. The police must be able to experience that sort of training to fully prepare them for the unfortunate but occasional events which exist as a real threat on our streets. That does not mean, however, that all hazardous training undertaken by the police

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should be excluded from the offence. As the noble Lord, Lord Henley, pointed out in Grand Committee and this evening, there is an agreement between ACPO and the Health and Safety Executive about how the HSE’s role in police hazardous training generally operates. In general, hazardous training should come under the offence, and as the Bill is drafted it will do so.

To take two examples from the Met Police’s book of remembrance for officers, two officers are recorded as having died in the course of training in the past 30 years. In one case, an officer drowned during underwater search training and, in the other, an officer was killed in a car crash during training with the stolen vehicle unit. In both cases the training was indeed of a hazardous nature. However, neither case would have been excluded on the basis of this exemption because, while hazardous, it was not being carried out to improve effectiveness in dealing with terrorism and other similarly serious circumstances.

This sort of training will often be focused on enabling officers to carry out hazardous activities as safely as possible in the circumstances, through evaluating risks and making decisions about whether to continue the activity. The difference between this type of training and riot training is about the extent to which the training environment can be controlled and yet realistic. Officers involved in riots cannot decide to stop because it has become too dangerous, so riot training will be in a less controlled environment. The use of real petrol bombs will also mean that outcomes are less predictable. We do not want the police and other law enforcers to undertake training which is artificial and avoids risky situations so that the first time the police experience a riot is in a genuine riot. That would be counter-productive and put officers at greater risk because they will be unprepared for dangers.

To summarise, the offence is fundamentally about the proper management of health and safety, not the adequacy of the way public bodies discharge their statutory responsibilities. That is not, of course, to argue that police decisions are always right. They may and do get things wrong. When they do, they can be held to account by the Independent Police Complaints Commission, independent inquiries and, of course, through the tripartite arrangements with police authorities and the Home Secretary. Individual officers are also fully subject to the criminal law, but extending criminal liability over operational matters to the police as a body is unnecessary and could distort policing priorities in a damaging and counter-productive way. For those reasons, we continue to resist the noble Lord’s amendment, clever though it is.

Lord Henley: My Lords, I am very grateful to the Minister for giving us that long explanation of a relatively brief amendment. I thought that we were putting forward a simple and fairly small improvement to the Bill, but the Minister does not accept that. It is probably too late to take it any further. I am grateful to the noble Lord for taking us through all the points that those advising him think we ought to be taken through. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendments Nos. 19 and 20 not moved.]

Lord Hunt of Wirral moved Amendment No. 21:

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 22:

On Question, amendment agreed to.

Clause 6 [Emergencies]:

Lord Hunt of Wirral moved Amendment No. 23:

“(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: My Lords, Amendment No. 23 deals with one of the most unsatisfactory elements remaining in the Bill and brings commercial emergency services within the ambit of the existing exemption for statutory emergency services and their agents. I am concerned by their omission. Clause 6, which provides for exemptions for the emergency services, explicitly excludes commercial emergency services from the exemption as the result of a government-sponsored amendment in the other place. Clause 6(2)(d) states that,

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

In the other place, the Home Office Minister, Gerry Sutcliffe, suggested that the presumption he and his colleagues were making was broadly against the creation of new offences or extending them in such a way as to make organisations risk-averse in unnecessary or undesirable ways. He said:

He went on to say:

That last sentence seems to me to be all important. When considering the exemption of the emergency services, we must take into account the demands that those services will face, not the way their business is conducted outwith emergency situations.

Commercial emergency services face exactly the same life-and-death decisions as a statutory authority when responding to emergency situations. I can go

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further than that: a life-and-death, split-second decision is a life-and-death, split-second decision regardless of whether the individual taking it is paid or not paid and whether he or she works in the public sector, the private sector or some hybrid of the two. This is the crux of the argument. The fact is that privately employed firefighters at an airport, docks or film studio are not so very different from those employed by the state or its agencies. They are there with good reason. That reason is at least partially attributable to statutory obligations, either directly or indirectly. And they are there for reasons of health and safety, or else the requirements of statutory employer’s liability.

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Of course we do not want them to be remiss in their duties of care, nor to be grossly negligent, but in an emergency situation they will face the same split-second dilemmas as will any other firefighter. Why should we legislate arbitrarily—and I use the word advisedly—to cause individuals in identical situations potentially to make radically different assessments of risk? It defies both logic and common sense.

In Grand Committee, the noble and learned Lord, Lord Davidson, said—if I may quote him in his presence—that,

He added:

I believe that that argument simply lacks traction.

Statutory obligations are at play here, and the danger of making individuals unduly hesitant and possibly risk-averse in split-second, life-or-death situations is identical across sectors.

I also fail to see the relevance of the point about back-up because members of the fire brigade have a back-up too. They can call on the resources of other parts of their fire brigade and other fire brigades. What that has to do with how they conduct themselves in an emergency situation is beyond me. I beg to move.

Lord Bassam of Brighton: My Lords, I shall see whether my arguments lack traction. I will try to deal with the points made by the noble Lord, Lord Hunt. Before I do perhaps I should set the amendment in context. The amendment to the clause requires us to do that. The purpose of the clause is to make it clear that a narrow range of organisations will not be liable to prosecution for corporate manslaughter regarding actions that they take in response to emergency circumstances. That means that matters such as the time taken for the emergency services to arrive on scene, the number of personnel determined to attend, and the effectiveness of how the emergency situation is handled are excluded from the ambit of the offence.

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The value of this exemption is that it gives clarity to the emergency services about where their liabilities for manslaughter lie. In most circumstances the organisations listed would not owe a duty of care in terms of their responses to emergencies; so even without the exemption they would not be subject to this offence. There are some situations where that would be open to question. It could lead to uncertainty in the emergency services and could encourage a culture of undue risk aversion. That would not be in the public interest.

The amendment tabled in the name of the noble Lord, Lord Hunt of Wirral, seeks to widen the extent of this exemption. At present, the exemption applies only to organisations that are, in effect, providing a public service when responding to emergency circumstances. But as I think the noble Lord, Lord Wedderburn, noted in Committee, this is not limited to public authorities. Commercial and other organisations are covered by the exemption where they are effectively standing in for a public authority. The exemption also applies to a range of other organisations such as Mountain Rescue and the Royal National Lifeboat Institution, which are not part of the public sector but, as we all understand, effectively perform a public role and a public duty.

The noble Lord, Lord Hunt, proposes that we should go further than this and exempt all organisations employing firefighters or protecting life and property in the event of a fire or responding to other emergency circumstances. As I understand it, his argument is that private and public bodies face exactly the same risks at the scene of an emergency and so they should benefit from the same protection from liability. I agree that the task of responding to an emergency such as a fire presents the same challenges for either public or private firefighters, but this exemption is not only about the management of difficult emergency situations involving split-second decisions taken at the scene of an emergency; it is also directed at wider issues such as the time it takes the emergency services to arrive on scene and the number of personnel deployed.

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