Corporate Manslaughter and Corporate Homicide Bill

The noble Lord, Lord Hunt of Wirral, seeks to overturn an amendment made in another place by the Government to Clause 6 and to put in place an alternative provision. I understand that he wishes to test the thinking behind government amendments in another place and I am happy to explain why we decided to limit the firefighting exemption in the way that we did. The noble Lord’s amendment would extend the emergency services exemption to all organisations employing firefighters, protecting life and property in the event of a fire, or responding in any other way to emergency circumstances. In the first respect at least, the effect is to take the Bill back to the form it was in when it was first introduced in another place. However, we believe that the exemption there went too far. In particular, although the courts have recognised that public rescue authorities do not usually owe duties of care in the way that they respond to emergencies, it is not at all clear that the same considerations apply in respect of private companies providing services on a contractual basis. So although the Bill as it now stands follows the way duties of care appear to fall in the common law, the noble Lord’s proposal will go further and remove current liabilities for these organisations. We should have a very good reason for doing that. At the heart of the distinction that we have drawn in the drafting of Clause 6(2)(d) is the concept of obligation. The statutory fire services do not choose to offer firefighting capacity on a contractual basis and they cannot withdraw their services from the market. By contrast, commercial organisations can choose the terms of the contractual arrangement with the client and on that basis agree the service that they are able to supply. They can also choose to withdraw their services if there is a risk that resources cannot be matched to demand. In most circumstances, commercial organisations, such as a company offering firefighting services to the film industry, can call for back-up from the fire brigade. There is no such back-up for the fire brigade. The exemption is not directed just at split-second decisions taken at the scene of an emergency; it is clear that the task of fighting a fire presents the same challenges for public and private firefighters. The difference lies further back, in relation to liability for decisions about the management and allocation of resources. A statutory fire authority is under an obligation to provide a fire and rescue service, regardless of the demand upon its services. At one time, there may be a fire at a chemical plant, a multiple pile-up on the motorway and a number of house fires burning simultaneously. The demands on the fire authorities are unpredictable, and extremely difficult prioritisation decisions may need to be made to make best use of finite resources. It is true that private organisations have to make prioritisation decisions too, but a private organisation has contracted to provide a particular level of service and to have sufficient resources and expertise to meet the expectations of the client. If it fails, grossly negligently, to meet the terms of that contract, we are not persuaded that it would be right to exempt it from liability. The question therefore boils down to this: is a commercial operator which chooses to provide a firefighting service in the same position as an organisation that is obliged to provide that service? We are not convinced that it is. The same demands as are faced by the public service are not faced by the private corporation. However, I say immediately that the clause does not provide an absolute provision as regards the private sector—as the noble Lord, Lord Wedderburn, observed in his interpretation, which I submit is correct, of Clause 6(2), when he referred to paragraphs (d), (f) and (h). We amended the exemption so that it extends to commercial organisations only where they are providing firefighting services by arrangement with a fire and rescue authority or the equivalent body in Scotland and Northern Ireland, and so are effectively in the same position as the public services. In relation to the concern about risk aversion, private organisations are currently liable to prosecution for manslaughter, so in a sense there is no change to that as a result of the new offence. There is no reason for them to become more risk-averse as a result of the new offence. On Amendment No. 61, on the application of the exemption to NHS bodies, the noble Lord, Lord Hunt of Wirral, is seeking to challenge our thinking on why this exemption does not also extend to all providers of healthcare services. The reason that we have not extended the exemption in the way suggested is that we do not think that private bodies, with the exception of private ambulance services, are providing the sorts of emergency services that would need to be covered by this exemption. In that regard, I respectfully concur with the noble Lord, Lord Clinton-Davis, who identified that only a very small percentage of the emergency services are covered by the private sector. The purpose of the exemption is to cover NHS ambulance providers in respect of the way in which they respond to emergency circumstances. Their private counterparts are also covered where they have an arrangement with an NHS trust to carry out comparable functions. Where a trust has arranged for another body to carry out an emergency response on its behalf, we do not think that criminal liability should attach to the one body but not the other. The exemption will only apply when the ambulance service is responding to an emergency, and it will not exempt private ambulance services when carrying out routine, planned work. Apart from ambulances, the exemption will have very limited application to the NHS, as it does not extend to medical treatment. There is little, if any, contracting-out of emergency response that we are aware of by NHS bodies. We therefore do not believe that non-NHS healthcare providers are independently providing the sort of emergency services that would need to be covered by this exemption. On the technical point raised by the noble Earl, Lord Mar and Kellie, I have to answer his question on the coverage of vets in the negative. I hope that this explanation will be enough to persuade the noble Lord to withdraw his amendment.