Corporate Manslaughter and Corporate Homicide Bill

In our previous debate, we considered the general proposal to set out certain categories of relevant duty of care, and I explained that the intention was primarily to provide a way of establishing whether a particular set of circumstances was within the scope of the offence without detailed recourse to the law of negligence. Amendment No. 24 proposes an additional category of relevant duty—duties owed to members of the public who might be affected by the way in which employees or others working for an organisation perform their duties. The language used here reflects the way in which general statutory health and safety duties are drafted. Section 3 of the Health and Safety at Work etc. Act, for example, imposes a duty on employers to take all reasonable steps to ensure the health and safety of those not in his employment who may be affected by the conduct of his undertaking. I set out in an earlier debate why we did not think it suitable to base the offence on those duties as such. I appreciate that this amendment also probes the extent to which public authorities are covered by the offence in respect of duties that they owe to members of the public. Amendment No. 25 probes the difference between the ““supply”” and ““provision”” of a service. Perhaps I can start with the question of the public sector. Concern has been raised in our debates that Clause 2 might not be adequate to extend the offence to duties owed by public authorities to members of the public. In particular, the concern relates to Clause 3(2), which deals with duties owed to the public when public authorities exercise exclusively public functions, which effectively limits the offence to employer and occupier duties for the public sector. I reassure the Committee that that is not the case. The concern is based on a far more extensive reading of ““exclusively public function”” than we intend. We are due to consider an amendment that will delete the exemption for exclusively public functions in due course, so at this stage we will not consider in detail why such functions should be exempt. I can offer reassurance that the term certainly does not provide blanket cover for the activities of the public sector. In the first instance, the exemption covers activities that are carried out under the prerogative. That includes activities that are at the heart of state responsibility such as concluding treaties, conducting diplomacy and deploying troops overseas, or maintaining the peace in the United Kingdom. The exemption extends also to activities that by their nature require statutory authority. This does not exclude an activity simply because it is carried out on a statutory basis. The nature of the activity must mean that it can be carried out only with such authority. For example, the NHS provides medical services under a statutory framework, but medical treatment is not an exclusively public function. There is nothing intrinsic about medical treatment that requires statutory powers, and private organisations offer medical treatment independently. Examples of functions that are by their nature exclusively public would be the licensing of drugs, the issuing of driving licences and, at a local level, the granting of planning permissions. This exemption does not cover an activity simply because performing it requires a licence. Selling alcohol requires a licence, but that does not make it an exclusively public function, because the nature of the activity—selling—does not require statutory powers. The phrase ““by its nature”” is intended to focus the test on the core part of the activity which is the public function. To put the test another way, can a private individual engage in this sort of activity without the use of statutory powers? Moreover, the exemption does not extend to activities that are ancillary to that function. While the keeping of people in custody is an intrinsically public function, secondary activities such as prison catering functions are not exclusively public functions and so would be within scope for the offence whenever duties of care arose. How might the amendments alter the scope of the categories of duty? To understand why we prefer the categories as they stand, it might be helpful to explain what they are intended to cover. The Bill’s intention is to list circumstances in which duties of care will commonly arise. Thus, the categories cover the supply of goods and services, construction and maintenance operations, commercial activities and the use of vehicles, plant and equipment. The term ““supply”” is used deliberately. It is intended to cover the relationship between companies and their customers or those receiving their services. For example, train companies supply a transport service to their passengers, and plumbers and gas fitters supply a service to their customers. The term is apt not just for private enterprise but for the public sector, too, and would, for example, cover National Health Service bodies offering medical treatment or local education authorities in respect of schools. However, it would not further this approach to refer instead to ““providing”” a service or to include a wider category of duties where members of the public are affected by an employee’s activities. The effect of the amendments would not be to underpin the offence with wider duties per se. The requirement would remain that a duty be owed in the law of negligence. The effect rather would be to capture a wider group of members of the public who are owed a common-law duty where that duty is not covered by one of the existing categories. However, new categories would cover a potentially wider range of activity and could include many situations where no duty of care is owed. The noble Lord, Lord Hunt, made reference to one example, but they could also extend to the work of local authority staff in cutting crime. Other examples might be the way in which the police respond to a 999 call, or statutory inspectors enforce a regulation. However, it is highly unlikely that duties of care would be owed in these sorts of circumstances—a point that, to judge from his earlier comments, the noble Lord, Lord Hunt, would accept. Although this sort of case would now be covered by a category of relevant duty, the test would still be whether a duty of care was owed in the law of negligence. So unless, exceptionally, that were the case, the offence would therefore still not apply—even if, when taken with other amendments, which appears to be the intention, specific exemptions were also removed. On the other hand, in reaching a decision on the application of the offence, rather than being able to rely on the categories of relevant duty, investigators and prosecutors would have to rely in greater detail on the law of negligence. That would not assist swift decisions or necessarily foster transparency. Such an approach would also encourage strong pressure on investigators, and potentially speculative prosecutions, on the basis that the courts might be persuaded to move duties of care into what we could describe as novel areas. That would not be helpful. Clearly, as I have indicated, there is an extent to which this proposal is designed to complement other amendments to the Bill—in particular, those to amend specific exemptions. In some cases, removing an exemption may not be enough because, even where a duty of care is owed, the particular circumstances may not be covered by a relevant category of duty of care. However, until we have considered particular exemptions, that is perhaps to put the cart before the horse. Even as a means of filling in a lacuna of this sort, the proposals appear to represent an unsatisfactory solution in respect of the wider effects that I have identified where it still remains the case that no duty of care is allowed. That was a lengthy explanation. I hope that I have persuaded noble Lords that the proposals would not add practical value to the Bill, but would rather introduce a degree of uncertainty. For that reason, I hope that the noble Lord will withdraw the amendment.