Corporate Manslaughter and Corporate Homicide Bill

I am grateful to the noble Lord, Lord Cotter, for his comments, which I am sure were heartfelt. They take us back to the difficult question of when government and public bodies should be accountable in the criminal courts for the way in which they carry out their activities. Perhaps I should declare a sort of past interest. I trained as a social worker and worked as a social worker for a short while. During my time working for the local authority, we had to deal with cases that were not as appalling as the Climbié case, but we had to make difficult choices and faced dilemmas with which social workers struggle at all times to try to reconcile in order to fulfil their duty of care to those entrusted to the care of the local authority. So I have some appreciation of the difficulties involved in that case and in caring for children in the local authority context. Clause 7 deals with the exercise of two challenging public functions: child protection and probation. Those functions are clearly different but they are linked in so far as they relate to the protection of the public from harm. The noble Lords, Lord Lee and Lord Razzall, tabled an amendment to which the noble Lord, Lord Cotter, spoke, which seeks to remove the limited exemption given to organisations carrying out those functions and bring them within the offence, subject to a number of considerations. Before turning to that amendment, I would first like to say something about why we think that the exemptions are required. Clause 7 makes it clear that the exercise of a limited range of statutory functions is not covered by the offence. That does not affect the liability of local authorities or probation boards to provide safe systems of work for their employees; nor does it affect their responsibilities as occupiers of premises. Rather, the exemption is tightly drawn to focus specifically on the arrangements for discharging a limited range of particular public functions. Let us first consider those relating to child protection. I understand that in another place, the limb of the clause dealing with child protection was considered in some detail. It was suggested by honourable Members in the Opposition that a distinction might be drawn between decisions about taking a child into care, which ought to be exempt, and the provision of services to children, which ought to be covered by the offence. We thought that there was merit in that suggestion and so tightened the child protection limb of the exemption so that it is now limited to a small number of statutory functions relating to decisions made to safeguard the welfare of children, carried out under Parts 4 and 5 of the Children Act 1989. Part 4 of the 1989 Act concerns care and supervision orders. Such orders can be made by a court only if it is satisfied that the child concerned is suffering or is likely to suffer significant harm. The court must then place a child under the care or supervision of a local authority. Part 5 concerns, among other things, the powers of public authorities—local authorities and the police—to remove a child from their home in case of emergency. Clause 7 makes it clear that those functions are not covered by the offence, but there is in fact uncertainty as to whether a duty of care would exist in those situations in the first instance. The courts have had real difficulty deciding the duties of care owed by local authorities in respect of child welfare decisions. They have found that it may well be inappropriate to subject a local authority to a duty of care in respect of decisions relating to taking children into care.  To that extent, Clause 7 merely clarifies that the offence will not apply, rather than providing for a substantive exemption where the offence would otherwise have effect. That reflects the position of a number of the clauses dealing with the public services in that they operate in circumstances where duties of care are frequently not owed and their main function is therefore to provide clarity and draw bright lines around the scope of the offence. Local authority functions in relation to children are not otherwise exempt from the offence, except where those are matters of public policy or exclusively public functions covered by the general exemption in Clause 3. The effect of that is that where a child is in the care of, or is receiving services from, a local authority, that local authority has a special responsibility to ensure that its services and those providing them do not harm the child or its family. It is not our intention to create barriers to criminal prosecution if serious management failures in the provision of services directly cause a child’s death. It is our view that Clause 7 achieves that. Having listened to the noble Lord, Lord Cotter, I think that that was part of what he was seeking. I turn to probation. The exemption for the Probation Service covers three areas of activity: the monitoring of compliance with community orders; the supervision of people released from prison on licence; and the provision of accommodation in approved premises. As has been said, the clause extends no exemption to responsibilities owed to employees or in respect of the occupation of premises. It therefore only affects any wider duties owed in respect of those in approved accommodation. In all those areas, the Probation Service is managing very challenging public relationships. The emphasis is on protecting the public and the management of risk. As with the other public services, this involves the difficult balancing of many diverse interests. When the service gets things wrong, there should be a thorough and open investigation and the service should learn from those mistakes. But we think that criminal prosecution is not an appropriate way of achieving that highly proper and laudable objective. High-profile cases have involved offences, including murder, committed by offenders under the supervision of probation services. By its nature, the Probation Service deals with some very high risk—potentially very dangerous—offenders. The service has a responsibility to protect the public from those offenders, but we do not think that it should itself be criminally liable for their actions. That would place a heavy onus on the Probation Service and potentially distort the very difficult decisions that it must take. The Probation Service is in any case unlikely to owe a duty of care to the victim of an offender’s action. To that extent, as with the child protection exemption, an important part of the provision is to give clarity to the probation services, so that they are in no doubt about where its criminal liabilities lie. I have explained the Government’s thinking behind the exemptions. I turn now to the amendments which seek to remove the exemptions for child protection and probation services. They would make the organisations currently covered by this exemption liable for the offence where they owe a duty of care, subject to a number of considerations such as the existence of other duties, resource constraints and public interest. We discussed a very similar amendment in relation to the emergency services exemption, and the noble and learned Lord, Lord Davidson, explained very clearly the context for preferring the drafting in the Bill, which we think should also apply here. As we have made clear, it is uncertain whether a duty of care would be owed in child protection decisions in the first instance, so Clause 7 merely clarifies to local authorities the situations in which the offence will not apply. Similar arguments can be applied to exemption for the Probation Service. The amendment would therefore not substantially alter the scope of the offence, but it would remove that necessary clarity. This would create uncertainty about the scope of the offence in areas where this could easily lead to damaging risk-averse practices being adopted. That would not be a happy consequence in this important legislation. We have therefore framed a narrow exemption of specific statutory functions on the basis that this offers the child protection and probation services clarity about where their liabilities should lie. I hope that that explanation satisfies the noble Lord. I am very grateful to him for the way in which he moved his amendment.