Corporate Manslaughter and Corporate Homicide Bill

I have noted the concerns expressed in this brief debate, both on the specific question of preparatory activities and on whether there should be any specific exemption for military activities. I preface my remarks with the general point that the operational activities of the Armed Forces represent exclusively public functions and therefore fall to be exempt under Clause 3(2). However, that exemption does not apply to duties owed as employer and occupier. By contrast, the exemption in Clause 4 operates across all categories of the relevant duty of care. It is therefore of most substantive effect in respect of the responsibilities of the Ministry of Defence as employer, and I shall focus on that aspect. The Armed Forces, by the very nature of their activities, are in a unique position, often working in extremely difficult and volatile situations where military objectives are imperative. That raises very difficult questions about the extent to which the courts should later scrutinise their decisions about the way those objectives were secured and whether the systems in place for carrying out those activities were adequate. Those difficulties have been recognised in the civil courts, and it is now an established part of the civil law that a combat immunity extends to the Armed Forces. The courts have expressed it in these terms: "““In the course of hostilities service personnel will be exposed to the risk of death and of injury, both physical and psychological. That is the nature of warfare. But the welfare of the soldier, sailor or airman must be subordinated to their combat role””." Those are the dicta of Mr Justice Owen expressed in a case in 2003, Multiple Claimants v Ministry of Defence. Here is another quote from Mr Justice Starke, in Shaw Savill and Albion Co Ltd v The Commonwealth: "““There is no doubt that the executive government and its officers must conduct operations of war, whether naval, military, or in the air, without the control or interference of the courts of law. Acts done in the course of such operations are not jusiticable and the courts of law cannot take cognizance of them””." Clause 4 is based on that concept. I believe that it is right that such immunity should extend for the purposes of the new offence. To the extent that the opposition to Clause 4 standing part of the Bill is aimed at bringing combat operations within the scope of the offence, I resist the suggestion. I phrase my remarks in that way because one ofthe consequences of the recognition of a combat immunity is that, whether or not an exemption is specifically granted in the Bill, the Armed Forces will not owe a duty of care where combat immunity applies. This provision is important for the sake of clarity for the Armed Forces and to remove the possibility of speculative and potentially damaging prosecutions. But it also means that, for combat immunity, we are not exempting activities that would otherwise be covered. There is the specific question of preparatory activities. Combat immunity recognises that preparatory activities should be exempt from liability. At the risk of providing the Committee with a legal lecture, in the leading case on combat immunity, to which I have already referred, Mr Justice Owen stated: "““In aggressive operations the objective will be defeat of the enemy; in defensive operations the successful repulse of the enemy. In the planning of and preparation for such operations the interest of service personnel must be subordinate to the attainment of the military objective. In my judgement the military cannot be constrained by the imposition of civil liability in the planning of and preparation for such operations any more than in their execution””." We are satisfied that it is right that this aspect of combat immunity should extend to the new offence.If criminal liability were potentially to attach to decisions made during the lead-up to combat operations, commanders may become risk-averse at a time when military imperatives require them to focus completely on the military task in hand. Logistic constraints will always restrict the personnel and kit that can be made available and will always limit the available options. This will mean that all involved will operate under stress, and to restrict the exemption to ““combat only”” would risk giving undue prominence to one of the many factors that commanders should have in mind when preparing to deploy. Similar arguments apply in respect of the police. Operations tackling terrorism, civil unrest and serious disorder will place very significant pressures on police forces and may well be carried out in haste in emergency situations. The police and other law enforcers will not necessarily have the luxury of time or resources to ensure that all their obligations under health and safety have been met before attending to the situation. That could be detrimental to the protection of the public from serious threats. Some concern has been expressed that ““preparation for”” could be interpreted very widely by the courts to cover routine training or, for example, routine maintenance of riot control equipment. That is not the intention, and it would be a very wide reading of the term, particularly given that specific mention is made of training in both Clauses 4 and 5, which exempt only ““hazardous”” training. We are therefore satisfied that it would not cover activities such as basic recruit training, training for new roles or equipment, adventurous training, or the normal testing or evaluation of equipment. It would also stretch the meaning of ““in preparation for”” too far to include routine maintenance of equipment. The exemptions deal with activities that are, "““in preparation for, or directly in support of””," particular operations. We think that supports a narrow reading of the exemption where the police or Ministry of Defence will need to establish a proper connection between the activities in question and relevant operational activity. For the Armed Forces, examples of what would fall within the exemption include the organisation of forward deployments in immediate preparation for combat; reconnaissance missions; the establishment of supply chains in readiness for operations; and some conditioning exercises, such as live fire training exercises or acclimatisation activities that are designed to prepare members of the Armed Forces for the particular circumstances they are likely to encounter. Similar activities preparing officers for an operation or particular operational circumstances would be covered for the police. I hope that I may have persuaded the Committee that exempting the Armed Forces in respect of operational activity is both right and proper, and that the exemption should extend to preparatory activities. I do not believe that that is an open-ended exemption, but it recognises the considerable complexities that our Armed Forces and police face in preparing for particular operations or operational circumstances. Any life lost as a result of poor decision-making in that process is a tragedy. However, our operational forces must to a degree be provided with the scope to operate free from liability under either civil or criminal law. The Bill draws the line in a recognised and appropriate place. I therefore urge the noble Lord, Lord Lee, to withdraw his amendment.