Corporate Manslaughter and Corporate Homicide Bill

This debate is framed by the wider question of the position of public bodies under the Bill, and I wish to consider that wider context. There are, of course, important questions about the extent to which the offence does in fact extend to public authorities and the width of the term ““exclusively public functions””. I hope that, in the earlier discussion on duties of care, the Committee was reassured that the exemption for ““exclusively public functions”” does not restrict the application of the offence to public authorities to their capacity as employer or occupier. However, that is not to say that the Bill does not draw clear lines to exclude a number of activities performed by public bodies. Our approach has been informed by a number of considerations. The new offence is rooted in the need for employers to provide safety in the workplace, to ensure that employees have safe systems of work and that work sites are safe places to be. The Bill applies widely to the responsibilities that the Crown and other public sector bodies have as employer and occupier. The offence does not exempt the duties that fire and ambulance authorities have to ensure safe working practices for their staff and, similarly, police forces are not exempt, except in very limited circumstances, for the working conditions of their officers. The same is true of the Armed Forces outside the area of combat operations. I submit that that extension of the law should not go unremarked. Even to this extent, the Bill will bring important opportunities to bereaved families to see proceedings brought against Crown bodies arising out of work-related deaths. For example, in 2001, John Wynne, a Royal Mint employee, was killed by a 6.5-tonne furnace falling from a defective crane hook. A number of failings in the Royal Mint’s management were identified: inadequate training of employees; failure to maintain equipment, despite an inspection identifying the defect and advice for a rigorous maintenance regime; unsafe systems of work; a general failure to conduct a risk assessment; and a failure to assess risk following a near-miss incident reported by employees where the furnace had fallen off its hook. I must be careful about suggesting precisely what level of fault was involved, because questions of corporate manslaughter were of course irrelevant. But it is clear that, if such circumstances arose in the future, the principle of Crown immunity would not prevent the consideration of corporate manslaughter charges under the Bill. As employer and occupier responsibilities are covered, the exemptions primarily deal with how public bodies carry out their public responsibilities. In many circumstances, the civil courts have already considered that question and have concluded that duties of care should not be owed. They have taken into account the difficulty of courts seeking to review decisions that are rooted in matters of public policy and the risk of encouraging an overly defensive or cautious approach in those seeking to safeguard the public from risk or danger. We believe that those principles are equally applicable here. The fact that duties of care are limited in this respect also underlines that, to a large extent, the effect of the exemptions is to make it clear in the Bill that certain activities are not covered by the offence, rather than to substantially exclude activities that would otherwise be covered. We believe that there is value in this. It ensures that the public and investigators can be clear about the application of the new offence and that they will be able to anticipate clearly what is and is not covered. Finally, we have taken careful consideration of the position of public authorities. Public bodies frequently operate under a statutory framework, which requires them to perform particular functions. They do not have the option of entering or leaving a market, and their activities must be performed in the wider public interest. Public bodies will also often hold special authority or perform functions that the private sector does not or cannot do on its own account. Because of that and the fact that these bodies operate on behalf of the public, they are already subject to a strong and public framework of standards, monitoring and accountability. It includes, for example, a requirement to hold independent investigations into deaths where the state is involved. That has led to the establishment or involvement of a number of specific bodies in investigating deaths, such as the Independent Police Complaints Commission and the Prison and Probation Ombudsman in its role in investigating deaths in prisons, immigration centres and approved probation premises. In particularly serious circumstances, a full public inquiry may be warranted. Specific remedies also exist for the actions of public authorities, including judicial review and the Human Rights Act. That Act not only places an important set of obligations on public bodies to act in a particular way but provides remedies where those obligations are not met. More widely, Ministers are accountable to Parliament for the exercise of their functions and behind that, for wider questions of public policy and strategic management for both central and local government, lies the accountability of the ballot box. There are, therefore, good reasons for treating public bodies differently from other organisations, and such factors have underpinned the very long-standing principle of Crown immunity. There are those who would argue that those factors still weight the balance in favour of retaining Crown immunity and that to invite the criminal law into the workings of government is to draw people into difficult territory, asking them to consider issues such as the balance of resources and the way in which public bodies discharge statutory responsibilities, which the criminal law is ill-suited to deal with. However, the Government have taken the wider position and have recognised that there is a strong public interest in ensuring high levels of accountability where management failure in a public authority has lain behind a death. But we believe that distinctions remain to be drawn about the sort of circumstances in which it is right to involve the criminal law of gross negligence. The position in the Bill represents the culmination of a very careful process of consideration about how that line should be drawn. Any line such as this is, of course, open to criticism, and some argue that no line should be drawn at all. Others argue that, if no line can be drawn within the functions of the Crown, that underlines the importance of keeping Crown immunity intact. We do not accept either position as correct or helpful. We believe that bringing the criminal law into the realm of government for the first time represents a considerable extension of the law, both in principle and practice, and it is only right that such a step is taken cautiously. We have been bolder than applying the offence only to public authorities as employer and occupier, but we need to think very carefully before extending the offence to issues that go to the heart of the public responsibilities of government. I now turn my focus to the remarks on the three exemptions that the amendments would remove. Clause 3(1) deals with decisions involving matters of public policy. It is intended to deal with essentially high-level decisions about the allocation of resources, the weighing of competing interests or the establishment of priorities. Examples might be a decision by a primary care trust not to fund a particular treatment or a decision by a local council to allocate its resources in a particular way. In either case, not providing the treatment or service in question might be a factor in a person’s death. The courts have already recognised that decisions of this kind taken by public authorities are not suitable for review in the courts. In most cases, therefore, no duty of care would be owed in respect of these activities in any event. The exemption provides clarity about what is and is not covered, and removing the exemption would lead to some doubt about the application of the new offence in this respect. It would risk encouraging an overly defensive or cautious approach in public authorities and risk distorting decisions about priorities for public resources. We do not believe that that would be in the public interest. However, I must make it clear that this exemption is not about the management of resources. Once a public body has embarked on a particular activity, it must do so with full respect to its safety responsibilities and it cannot plead a lack of resources as a defence. The exemption does not change that. Clause 3(2) deals with exclusively public functions. In an earlier debate, we considered how far that extends in relation to the activities of public authorities. I explained that the intention was to cover a narrow band of activities that are performed uniquely either by the Government or on their behalf, in particular where the exercise of a function requires statutory powers, such as the holding of people in custody. Those are, in our view, intrinsically public functions, and their management and organisation will frequently be closely linked to questions of public policy, as we explored in the context of custody. As such, we consider that the organisation and management of these functions, with which this offence is concerned, is more appropriately the subject of wider forms of accountability, such as public inquiries and other independent investigations, than can be achieved under the criminal law. Clause 3(3) deals with statutory inspection. This exemption is partly about clarity and partly about ensuring that statutory inspectorates do not become overly officious simply to protect themselves from prosecution. Those who followed the debate on regulation will be acquainted with the concept of regulatory creep in this regard. It would be rare that a duty of care would be owed in relation to statutory inspection under the normal rules of negligence. Inspection and enforcement work takes place at one remove from the carrying on of activities that affect members of the public, and there will therefore be questions about whether the relationship is sufficiently proximate to give rise to a duty. There are also questions of whether it would be just, fair and reasonable to impose a duty. This exemption puts it beyond doubt that no relevant duty will arise. That clarity is important to prevent statutory bodies becoming overly cautious when carrying out regulatory work. In all cases, statutory inspectors must weigh the risk of harm against the regulatory burden to the organisation being inspected. We do not want to add to that assessment a fear of a risk of prosecution if the advice is not quite cautious enough. There would be little incentive for such bodies not always to take the safe route and advise caution to minimise the risk of prosecution. Nor do we think that it would be desirable to encourage companies to think that they might transfer the risks of managing health and safety to inspectors. It is important that we consider carefully the circumstances in which public authorities should be subject to the Bill. The Government believe that those need to be wider than responsibilities as employer or occupier but that a line needs to be drawn between the sort of activities where public authorities are in no different a position to that of the private sector and those where they are exercising public functions. In our view, it is too great an extension of the law to say that the discharge of public responsibilities, intrinsically involving questions of public policy, should be subject to the criminal law. If the Committee believes that lines of this nature cannot be drawn, we shall of course be prepared to consider further the question of whether Crown immunity should be abrogated at all. But, at this stage, I urge the noble Lord to withdraw his amendment.