Corporate Manslaughter and Corporate Homicide Bill

moved Amendment No. 59: 59: Clause 6 , page 5, line 34, leave out paragraph (d) and insert— ““(d) any other organisation employing people whose duties involve extinguishing fires, or protecting life and property in the event of fire, or responding to emergency circumstances (or circumstances believed to be emergency circumstances);”” The noble Lord said: Amendment No. 59, which is grouped with Amendment No. 61, comes back to a question that was aired in Committee in the other place but unfortunately was not allowed time on Report. These amendments seek to improve two remaining unsatisfactory points relating to the precise extent of the exemptions in practice. AmendmentNo. 59 would allow commercial emergency services to be included in the exemption extended to statutory emergency services, and Amendment No. 61 is intended to clarify exactly where the duty of care ends by inserting the words, "““including any organisation providing healthcare services””." Let us consider, for example, a situation where a patient is brought into a hospital under emergency conditions but is then transferred to another department in the hospital and sadly dies. The boundaries for exemption will be very unclear. Turning to Amendment No. 59 in more detail, Clause 6 provides exemptions for the emergency services but expressly excludes commercial emergency services from the exemption. Subsection (2)(d) states clearly that, "““any other organisation providing a service of responding to emergency circumstances … otherwise than on a commercial basis””," may be exempt from a corporate manslaughter charge should an individual die in potentially preventable circumstances. I read the Minister’s argument in another place carefully, and with some incredulity, for he made the point clearly that: "““We must be careful about the implications of imposing legally binding duties or making organisations more risk averse””." Quite rightly, Gerry Sutcliffe was emphasising that emergency services self-evidently need to take unusual and sometimes extreme risks in order to function efficiently and effectively in high-pressure, emergency situations. That is absolutely right. The threat of a corporate manslaughter conviction would not effect the same change in culture in the emergency services as it could, for example, in the Prison Service or in large transport corporations, where there is time for reflection and planning. Indeed, he went on to say: "““The definition of an emergency situation is that the circumstances are life-threatening or threaten to cause serious injury or illness or harm to the environment or buildings or other property. The decisions taken are … split-second decisions. The exemptions that we are considering apply to these conditions, not to how the organisation goes about its business in general””.—[Official Report, Commons Standing Committee B, 26/10/06;col. 154.]" I should like to draw the attention of noble Lords to those last few words. The Minister in another place considers rightly that, when considering the exemption of the emergency services, we should take into account only the demands that those services will face and not the way their business is conducted outside those situations. That makes a great deal of sense. Those organisations will be exempted only in their capacity as emergency services, but it also flatly contradicts the letter of the new law as currently proposed. Commercial emergency services face exactly the same difficult life-and-death decisions as a statutory authority when responding to emergency services. We must go further than that. A life-and-death decision is no less crucial purely because in one instance someone making it is paid and in another they are not. I just felt that the Minister’s response in another place to this question was rather dismissive and very revealing. Observing that the amendment would extend the exemption to all organisations that employ firefighters, he said that, "““a private company offering firefighting services to the film industry would benefit from that. We do not think that that is right. If a company offers such a service commercially, why should it be exempt from liability for performing negligently? The essence of the exemption is to exclude those bodies that fill a statutory or other public role in responding to an emergency and which are therefore subject to wider considerations involving the public interest in meeting the demands on them””.—[Official Report, Commons Standing Committee B, 26/10/06; col. 145.]" That is the crux of the argument. The simple fact is that privately employed firefighters at an airport or a film studio are not so very different from those employed by the state or its agencies. They are there for a reason, which is essentially to be found in statute either directly or indirectly. They are there for reasons of health and safety or for the requirements of statutory employers’ liability. Of course, we do not want them to be remiss in their duties of care, or to be grossly negligent, but in an emergency situation they will face exactly the same split-second dilemmas that any other firefighter might. It is very surprising that, purely by virtue of their commercial nature, non-statutory, non-volunteering emergency services will be under threat of a corporate manslaughter charge should their actions unintentionally result in the death of an individual during an emergency. I should like to refer noble Lords to the Minister’s warning against refusing exemption for emergency service purely on the basis of how they, as they put it, go about their business in general. Yet that is precisely the reasoning behind the Minister’s current argument. I hope to reiterate that Amendment No. 59 would ensure that this new law does not render the private emergency services risk averse. I hope that the noble and learned Lord who will respond, and other noble Lords, can consider how much of an incentive there is for privately owned emergency services to execute their services efficiently. They have a commercial reputation to maintain, but without the protection of an exemption those services will be forced to take into account potential liability, which would seriously debilitate their effectiveness in carrying out their services. Amendment No. 61 seeks to establish where the exemption ends and the duty of care begins inthe course of treating a victim of an emergency. The amendment would include treatment centres in the exemption when read alongside subsections (3) and (4) of Clause 6. That would mean that in my previous example, where a patient was passed into the mainstream department of a hospital rather than being kept waiting in A&E, the exemption would hold firm. Amendment No. 61 is not intended to cast the net for exemption wide—far from it. On the one hand I have argued for no exemption for one set of public services—the Prison Service—but, on the other hand, I now defend the exemption for both statutory and non-statutory services. We all have one common aim in supporting this Bill: to establish a strengthened incentive to all organisations and service providers to improve the culture of safety. However, the vital issue in this part of the Bill is that the incentive must be applied in different ways depending on the circumstances in which different services operate. In respect of that, the emergency services are the complete opposite of the Prison Service or other services providing lawful custody. We have already debated that the purpose of the Prison Service is to maintain a controlled rehabilitating environment. It has a duty of care for those in its custody based on that purpose and based on the fact that those individuals have been stripped of their liberty. The emergency services are compelled to act in a completely uncontrolled and unpredictable environment, deliberately and knowingly exposing themselves to extreme risks in the interests of protecting and rescuing the public. I hope that I have made it clear that these amendments seek to achieve internal consistency in the Bill. So far, we have seen that some organisations are being included in the scope of possible prosecution, while others are protected from it. The only consistency so far seems to be the aim of protecting public services providers, but not commercial or private service providers who have exactly the same role. I hope that the Minister will reconsider the position in the way in which I have explained it. I beg to move.