The clause is designed to remove the problem that occurred recently whereby a chief commissioner of police and his predecessor had to sit in the dock at the Old Bailey as the persons responsible under a health and safety prosecution concerning an injury to a police officer. I therefore welcome the development in clause 135. Having done a great many health and safety prosecution, I have always found it strange that corporations enjoy so much more protection than unincorporated associations or individuals.
I have, in my time, been involved in the prosecution of the trustees of the Blenheim estate, where, as I recollect, a distinguished QC, the senior partner of a firm of London solicitors and Uncle Tom Cobleigh and all were all sitting in the dock in Oxford Crown court, even though their direct involvement in the injury of the person whose arm had been cut off by a rotary saw in a sawmill in Oxfordshire was completely peripheral. They just happened to be the trustees of the operation that ran that mill.
I was also involved in the prosecution of Lloyd's Register of Shipping, which involved some 40 trustees, including the Duke of Edinburgh. On that occasion, in order to avoid having to bring all those people to the Crown court to sit in the dock, we used a device whereby we agreed simply to prosecute them in the name of Lloyd's Register of Shipping and not require the individuals to attend. If I may say so to the Minister, that issue should be looked at as well.
I have one query, however. The purpose of the amendment is to ensure that in future the chief commissioner or chief constable can be prosecuted in his name but not personally. At the same time, the Government have rightly introduced another clause, which is in line with the provisions of the Health and Safety at Work etc. Act 1974, to the effect that personal liability may lie if a person has consented to the commission of the offence or personally connived in it, or if the commission of the offence was attributable to personal neglect on his part. That is entirely compatible with the 1974 Act and very sensible too.
There is one oddity, however, which I have sought to highlight and on which I should be grateful for the Minister's comments. The Government have chosen to make the operation of the change retrospective, by removing the liability of the police chief from being prosecuted in his own name under the 1974 Act. However, they have not been able to make the connivance clauses apply retrospectively, which will bite only when the Bill becomes law.
If I understand it correctly—perhaps the Minister can confirm this—current police chiefs must be keeping their fingers crossed that if anything terrible has happened in respect of health and safety, it will have been between 1998 and 2005. If an incident is in that period, a police chief will not be prosecuted in his own name and will not have to sit in the dock, but will be prosecuted as a corporation sole. Fortunately for him, however, the connivance clauses will not yet have come into operation, even though he might have connived in the commission of the offence. That is the slight oddity on which we should like the Minister's views.
I welcome the hon. Gentleman's general support for the steps that we are taking. The commissioner in question—shortly to be the ex-commissioner—and his predecessor were put in an invidious position by being prosecuted personally.
A couple of years ago we undertook to make a change. The original proposal was to transfer liability to police authorities, but we re-examined that and realised that it was not appropriate because it should still be possible to look at the force activities rather than the police authority. The provision that we enacted was not, therefore, commenced. The provisions before the Committee today take a more sensible approach, so that the prosecution would be in the name of the corporation—the office of chief constable rather than the chief constable personally.
The transfer of liability from the individual to the corporation does not mean that we take health and safety any less seriously than previously. Health and safety is incredibly important in the police service, and we want it to continue to be important.
As to the hon. Gentleman's points about retrospective action, I hope that he welcomes it, because we do not want chief constables to continue to be liable with respect to incidents where there was no personal connivance, occurring between 1998, when the liabilities were first placed on the force, and the granting of Royal Assent. The distance between us is narrow and concerns instances in which the retrospective aspect of the provision would prevent someone who had personally connived at an offence and been responsible for it from being brought to book for what they had done.
The hon. Gentleman has a point, and I should consider it in more detail. An important distinction can be made: if an offence is made out in an organisational way, the organisation is clearly responsible, but where an offence is made out on the grounds of someone's personal neglect and culpability the issue is important. We do not want to allow people to escape if they should be brought to account for their actions. I undertake to consider the matter in more detail and discover whether the clause could have results that none of us would want. If so, I undertake to do something about the situation.
I think that the Minister will have a problem. Retrospective effect is all right when it confers a benefit, such as removing the liability to prosecution in person, as opposed to prosecution of a corporation sole, but it cannot be used to backdate the creation of a new criminal offence, which is what the connivance clauses are. The Minister is probably saddled with the consequence of the decision to make the change in question. The other approach is to provide that the change by which a chief constable will be prosecuted as a corporation sole should come into force only when the Bill does. The Minister may decide that that is too onerous. I think that what I have outlined is the reason why the provision has been drafted as it has, and if I am wrong, the Minister will no doubt write to tell me.
It seems to me that under the clause, for the period from 1998 to the present day, a chief constable is much better off, because as from the date when the Bill comes into operation, he will not longer have to go into the dock or be personally responsible for any offence that may have been committed between 1998 and the measure's coming into force; however, the connivance clauses, which are an important part of the health and safety legislation, still do not bite on him, because they cannot be made to apply retrospectively. That is what I think has happened.