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It is in relation to liability for decisions about the management and allocation of resources that we think there is a difference between organisations providing services solely on a commercial basis and those subject to wider public considerations. Unlike commercial operators, the statutory fire service does not choose to offer fire-fighting capacity on a contractual basis and it cannot withdraw its services from the market if it finds its resources are overstretched. By contrast, commercial organisations can choose the terms of the contract with the client and on that basis agree the service that they are able to supply. They can also withdraw their services if there is a risk that resources could not be matched to demand. If, therefore, a commercial organisation fails grossly negligently to meet the terms of the contract, we are not persuaded that it would be right to exempt it from liability.

It is also worth bearing in mind how duties of care appear to fall in the common law. The courts have recognised that public rescue authorities do not

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usually owe duties of care in respect to the way they respond to emergencies, but it is not at all clear that the same considerations apply in respect of private companies providing services on a contractual basis. We have therefore taken the approach that where private organisations are effectively performing a public role, their liability should be comparable to that of public rescue authorities, but the Bill does not otherwise remove existing liabilities for manslaughter.

Having heard some of the arguments we prepared earlier, I hope the noble Lord will feel able to withdraw his amendment.

Lord Hunt of Wirral: My Lords, I congratulate the noble Lord on coming forward with some very persuasive arguments. I have increasing respect for his job application to be a noble and learned law officer because he has put up one of the best performances of the day. In those circumstances, I have no hesitation in seeking to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 24:

On Question, amendment agreed to.

Clause 7 [Child-protection and probation functions]:

Lord Bassam of Brighton moved Amendment No. 25:

On Question, amendment agreed to.

Lord James of Blackheath moved Amendment No. 26:

The noble Lord said: My Lords, the amendment was discussed in Grand Committee, at which time we all underestimated the extent of the problem, as I will shortly show.

I declare an interest in that I am on the board of trustees of two charities. One charity is concerned with affordable housing for young workers in the horseracing industry—I do not think they represent a threat—and the other charity supports young British composers of serious music and, although some of their masterpieces might cause their audiences to commit mass suicide, I hope that will not be considered to be manslaughter.

We are in a very odd situation. I think the Government think they are saying exactly the same thing as ourselves, although they may think that we are saying exactly the same thing as them, but somewhere in the middle we are apart. The issue is the extent to which the Bill will have application to charity trustees. The view was put very strongly in Grand Committee by several noble Lords, as well as by the Government, that the Bill does not apply to charity trustees. I have taken the view of the Charity

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Commission on this and that of several firms of independent commercial lawyers, notably Eversheds and Baker Tilly, who are the specialists in the charity sector. The very strong view is that it most certainly applies to charity trustees, for this reason above all: as its title implies, the Bill is aimed at applying to corporate directors and corporate activity.

In Grand Committee, we underestimated the extent to which charities rely on embedded corporate entities through which to do their business. The figure is a staggering 26,034, which is a very large number of charities indeed. Although the Charity Commission emphasised that that comprises only 15 per cent of the total charities under its umbrella, that 15 per cent accounts very much for the high end of British charitable contributions in times of crisis—earthquakes, tsunamis and support for foreign communities.

Therefore, the trustees of those charities will be caught because the obligations and responsibilities of every corporate entity that has directors working in a charity are accepted and replicated by the trustees of those charities. That is a universal principle that runs right the way through every charitable activity in the United Kingdom. Consequently, whatever the Government intended, charitable trustees are caught under the meaning of the Bill.

The 23 short words that I propose are intended to provide the clarification that the Government said in Grand Committee existed: that this does not apply to charitable trustees. There is a considerable risk of major curtailment of British charitable activity. British charitable funding is probably the most humanitarian and human side of our image in the world at large. It would be a great shame if the enthusiastic support of British people for foreign nations in time of crisis were seen to fall away, but that might happen.

The charities use their corporate entities as the means of recruiting, remunerating and sending forth the aid workers to administer the charity provided by the generosity and support of the public. They send those aid workers to spend the charity's money in whichever foreign country is a problem. They are usually quite dangerous situations; there have been a number of fatalities and tragic situations relating to those people in the past; and there will continue so to be.

Under the structure of the Bill, those people would become the subject of challenge for potential cause of manslaughter for having been sent to stand in harm's way to administer those charities. The charities will almost certainly stop sending paid aid workers from within their resources and under the direction and executive control of their executive board. The trustees will not want to endorse that because they will see that threat knocking on to them as a responsibility. Consequently, there will be a significant curtailment of the efficiency and effectiveness of the administration of British charitably provided funds.

It will not be long before, having let the aid go directly into the hands of foreign workers, we shall have tabloid headlines such as, “Foreign crooks nick our aid cash”, and the appetite of the British public to

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support charities will fall away. With that, our humanitarian face in the world will suffer. None of us would want to see that. That will be an unintended consequence of the Bill, which will be very unfortunate.

All I am asking is that the Government will again consider my 23 words and include them at some suitable point as a stand-alone clause to make quite clear that trustees of charities can continue to act with the objectivity and integrity that has marked their activities for so long without any hazard of interference from the Bill, however unintentional. I beg to move.

9.15 pm

Lord Hunt of Wirral: My Lords, I strongly support my noble friend. We are very grateful to him for making this very important point, which Ministers seem to have neglected. As he said, trustees of charities play a crucial role in the well-being of a healthy society. Many of them, of course, serve more than one charity in this way. Although the new offences that the legislation will create are in essence corporate by definition, I believe my noble friend has a good point; those who serve unpaid as trustees may be troubled by the thought that the range of their already onerous responsibilities may be expanded still further by the legislation. I very much hope that the Minister will be able to put our minds at rest.

Lord Goldsmith: My Lords, I strongly believe that I can put minds at rest, but not, I am afraid, by accepting the amendment. I entirely understand the concern of the noble Lord, Lord James of Blackheath, that we do not want people to be deterred from taking on the important role of trustee in a charity. I fully acknowledge that many people bring with them skill, experience, enthusiasm and energy, which can be of huge benefit to the people who are the subjects of the charity, both here and overseas. The noble Lord painted a terrifying picture of humanitarian aid being cut off as the British public turned their backs on charities. If I thought for a moment that the Bill would do that, I would be very anxious to find a way of dealing with it. I do not think that, and I want to set at rest the mind of the noble Lord, Lord Hunt of Wirral.

The most important point to make is that the concerns expressed by the noble Lord, Lord James, are about the possibility that trustees, as individuals, might be guilty of an offence under the Bill. They cannot be. As the noble Lord, Lord Hunt of Wirral, rightly says, the Bill by its definition deals with corporate responsibility. Clause 1 identifies the organisations to which the offence applies as,

Now we have added specified categories of unincorporated associations; partnerships, trade unions, and employers’ associations. At no point does it include an individual. Indeed, that point is made clearer by our debate on Amendments Nos. 7 and 8 on the possibility of secondary liability. As my noble friend Lord Bassam made clear, the Government do

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not accept that the Bill should impose liability on individuals. Clause 16, which some noble Lords want to take out, says very clearly:

So the offence remains that against an organisation only. The Bill cannot create an offence against an individual, whether a trustee or anyone else. That does not mean that individuals might not be liable for existing criminal offences, but that liability exists already and the Bill does nothing to extend it.

I hope that the noble Lord will accept the clear assurance that the Bill does not touch on the liability of individual trustees. I was slightly surprised to hear what he said about the Charity Commissioners. I say this simply so that he knows. I know that he has discussed the matter with them, but I am told that they are satisfied that no further clarification of the Bill is necessary. To that extent, he takes a different view, but that is what I am told their position is.

The noble Lord may say, “That is all very well, but wouldn’t it be a good idea to make it clear in the Bill?”. That is absolutely unnecessary, but there is always a risk, because as soon as you include in the Bill a provision that something does not apply to something that it would not otherwise look as though it does, you start to give rise to all sorts of doubts about what the other provisions actually mean. We have been very clear that this is corporate legislation; it is not directed at individuals. To claim that one category of individuals is not covered might raise doubts about whether other categories of individuals are covered.

I invite the noble Lord to accept that assurance. I hope that he will be able to withdraw the amendment.

Lord James of Blackheath: My Lords, I am grateful for the explanation. The problem is that, to some extent, the damage has been done already because the Charity Commission has, with its legal advice, already circulated to all charities that contain a corporate entity a notification that they are within the jurisdiction of the Bill. That opinion has been confirmed to everyone in Baker Tilly’s and Eversheds’s client base. This is where the problem starts. Nobody reading in Hansard the discussions on Amendments Nos. 7 and 8 will go to bed with an easier mind regarding the scope and intention of the Bill hereafter. I do not think that those debates will ease the situation.

The noble Baroness, Lady Scotland, in her helpful letter to me, accepted my comments about the unhelpfulness of the Home Office notes and said that they were subject to revision and review. If the Government are not prepared to put the proposed new clause into the Bill, I suggest that they include in the Explanatory Notes a paragraph describing the role or non-role of charities.

Lord Goldsmith: My Lords, I hope that the House will permit me to clarify a point that I hope the noble Lord has not misunderstood. Corporations are covered by the Bill but individuals are not. An

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individual trustee is not covered by the Bill; a corporation, whatever its form, can be covered. I hope that that is clear enough.

Lord James of Blackheath: My Lords, I hope that time and circumstances do not make us regret any foreshortening of this debate, because there is fear in the minds of a very dying breed of quality trustee. We do not wish to see that breed become extinct because of the anxieties that the Bill creates, any more than we wish to see them curtail the activities of their charities. Only time will tell what damage will be caused. My concern is that we will not set people’s minds at rest. I accept that the Bill relates to boards not directors, but much of our debate will not give peace of mind to directors looking at what consequences may fall on them as a result of these debates. I hope that the Government will consider using the Explanatory Notes to provide a better description. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Factors for jury]:

Lord Goldsmith moved Amendments Nos. 27 and 28:

On Question, amendments agreed to.

Lord Hunt of Wirral moved Amendment No. 29:

(a) make the conviction known by a statement in open court in terms approved by the court, and (b) give an undertaking to the court as to the manner of its publication.

The noble Lord said: My Lords, this subject has already been aired by the noble Baroness, Lady Turner of Camden, on Amendment No. 16. The amendments in this group seek to add a power to the Bill to order a convicted body to make its conviction public.

Like the noble Baroness, Lady Turner of Camden, I am pleased to see that the Government have tabled their own amendment. They have added to the proposals we discussed in Committee; in fact, their amendment goes further, making it explicit that the court must have regard to any representations made by both the prosecution and the defence in deciding the manner of publication. Most importantly, that will enable the courts to consider the wishes of the families of victims of the offence. I hope that that is what the Minister has envisaged. There could be scope here for the court to take into account victim impact statements, although I imagine that the prosecution on behalf of the families of victims would make its clients’ wishes known as a matter of course.

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I welcome the further measures that enable the court to direct the publication, as opposed to simply approving what a convicted company may suggest, and the concept that an enforcement authority will ensure that the publication is carried out. I should be interested to hear from the noble and learned Lord the Attorney-General what that enforcement authority would be if it is not to be the courts themselves. I am, however, content that the Government’s amendment achieves everything that my amendment, my noble friend’s amendment and the amendment tabled by the noble Baroness, Lady Turner of Camden, set out to do. I lend my full support to the government amendment. I beg to move.

Lord Wedderburn of Charlton: My Lords, Amendment No. 38 is an enormous improvement. The Government have had a bit of a rough time today and the House must give credit where it is due. Amendment No. 38 is excellent and I am very happy to support it.

Baroness Turner of Camden: My Lords, I also am very grateful to the Government for this new clause, which covers more or less everything in our original amendment. I am very pleased that we have had this kind of response from the Government today.

Lord Goldsmith: My Lords, that is an improvement. I shall deal quite briefly with this. I shall explain the government amendment and I thank the noble Lord, Lord Wedderburn, and my noble friend Lady Turner for their support. As I indicated, we have been persuaded by the arguments put forward; namely, that publicity orders are valuable. I should like to touch on one aspect of the amendment proposed by the noble Lord, Lord Hunt, which is not covered in our amendment, to explain why we do not go along with that part of it. He proposes that:

They do not currently have a function of registering that sort of order. What is more, that could not be applied to any of the entities now capable of being convicted of the offence which are not registered in that way. But I do not think, and I hope that the noble Lord will agree, that that detracts from the benefit of the government amendment.

Under our proposed amendment, any organisation could have imposed on it such an order, which would be flexible. The court could decide in just what way the conviction should be publicised, including requiring it to be identified in some way in the annual report. Of course, if it is in the annual report, which is then registered at Companies House, it will be available in that way.

I am glad that the noble Lord, Lord Hunt, has also drawn attention to the element in the government amendment that requires the consultation with the enforcement authorities and the prosecution. The enforcement authority might, for example, be the Health and Safety Executive. I agree with the noble Lord that one of the benefits of proceeding in this

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way is that the views of the victim or representatives of the victim could be ascertained. I thoroughly support why he said that ascertaining such views at the time of sentence in order to understand the impact is important; I strongly impose that on prosecutors. I am glad he supports that.

We expect, in a number of cases at least, that the relevant regulator and/or the prosecution would propose what sort of order might be appropriate so that the judge has that idea. Obviously the defence will be in a position to make representations in response. The judge will then determine the terms of the order and the exact form it will take. It is likely that some guidance may be needed on the kind of orders that would be appropriate, but we certainly do not want to hold up this legislation for such guidance to be produced.

I slightly apprehend that the noble Lord put a question to me that I may not have addressed. He is shaking his head and I am glad about that. Technically, therefore, I invite him to withdraw his amendment, and I will move Amendment No. 38 when we get to it in the Marshalled List.

9.30 pm

Lord Hunt of Wirral: My Lords, the only outstanding point concerned the enforcement authority, but I believe that the noble and learned Lord answered it. I see that I have in fact appended my name to the government amendment, so there may be a contest between the two of us when the Deputy Speaker comes to seek who is to move it. However, so far as the noble and learned Lord’s response is concerned, I beg leave to withdraw the amendment.

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