Corporate Manslaughter and Corporate Homicide Bill

I thank the noble Lord, Lord Lee of Trafford, for introducing Amendments Nos. 36 and 42 and for speaking to Amendment No. 37, in the name of both the Liberal Democrats and ourselves. Our amendments and those of the noble Lord, Lord Lee, amend the Bill in the same place but would have rather different outcomes. I express my support for Amendment No. 42, which performs a very similar function to Amendment No. 53 in my name and that of my noble friend Lord Hunt. I cannot quite see eye to eye with the noble Lord on Amendment No. 36, which would remove public policy decisions. However, I will address the points it raises after speaking to the amendments in my name and that of my noble friend. My noble friend and many other speakers in the debate on amendments two groups ago made a compelling case for the inclusion of custodial services within the remit of the Bill. The same broad principle lies behind Amendments Nos. 37 and 38. Amendment No. 37 would remove the exemption for exclusively public functions, while Amendment No. 38 would extend the duty of care in respect of exclusively public functions. I am well aware that if Amendment No. 37 were to be accepted—I imagine that that is unlikely—there would be no need for Amendment No. 38. Amendment No. 40 is the only option for the improvement of Clause 3; it would remove the exemption for statutory inspections. The amendments are tabled very much in the spirit of those on custody, which had near-universal support. However, as the Minister in another place admitted, there is a duty of care with respect to custody. The amendments in this group attempt to restrict the immunity afforded to public bodies, especially with regard to their exclusively public functions and statutory functions. That is aligned with our recent debate on custody. However, I acknowledge that Clause 3 covers exclusively public functions, where no duty of care exists. Indeed, with respect to Amendment No. 40, no duty of care is currently imposed on regulators. The function of Clause 3 is to assert that where a duty of care exists, it will apply to the offence only to the extent set out by Clause 2. As the Bill stands, it is only the existing duties of care owed by an employer to its employee or as occupier of premises with respect to public policy decisions, exclusively public functions and statutory inspections which apply under the offence. It is important to be clear about how these clauses relate to one another. My amendments would therefore open up the possibility of challenging the law of negligence for the purposes of considering a corporate manslaughter case. Where a prosecutor wished to take a public body to court for a death caused by gross negligence in the carrying out of exclusively public functions, they would be entitled to bring a test case to establish a duty of care in order to bring proceedings under the offence. In our ideal position, there would be no question that public functions were exempt from consideration under the Bill. Indeed, cancelling that exemption would avoid opening up the law of negligence to test cases under the corporate manslaughter Bill; Amendment No. 37 would achieve that. However, should the Government refuse to give way on that point, it is important that the Bill leaves enough scope to provide greater incentives for the improvement of public safety through the law of negligence. Amendments Nos. 38 and 40 would allow for that scope were exclusively public functions carried out so badly that they resulted in death. There should be an opportunity to analyse in court whether those actions were so grossly negligent as to merit the establishment of a duty of care for the future safety of the public. Amendment No. 40 raises the question of who should hold responsibility should a duty of care arise. I contend that, first and foremost, the functions of a public corporation are that corporation’s responsibility. However, where that corporation acts in a grossly negligent manner and an inspectorate fails to exercise its duty to hold that corporation to account, resulting in a death, there is no reason why the inspectorate should be exempt from prosecution. I shall listen to the Minister’s response to these matters with great interest.