Clause 3

Corporate Manslaughter and Corporate Homicide Bill – in a Public Bill Committee at 12:45 pm on 24 October 2006.

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Meaning of “relevant duty of care”

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry), Liberal Democrat Spokesperson (Trade and Industry)

I beg to move amendment No. 123, in page 2, line 23, after ‘supply’, insert ‘or provision’.

We may now begin to discuss a series of amendments, with which we will no doubt deal in greater detail this afternoon, on the extent of the exemption from the new offence for public authorities. The Government are trying to narrow the relaxation of Crown immunity rather too much. That will be clear in specific examples that we will debate in detail.

Amendment No. 123 would start to whittle away the restrictions that the Government are imposing. They seem to think that the exemptions are valid because public sector bodies are accountable in different ways: to Parliament or via the prospect of judicial review, public inquiries and ombudsmen’s inquiries and so on. However, we do not accept that such forms of accountability work as powerfully as we need them to when we are dealing with something as serious as corporate manslaughter.

I am sure that the Minister is aware that although ministerial responsibility and accountability can sometimes apply, in many cases Ministers find ways of  ensuring that they do not. That has been the case under not only the present Government, but many past ones. The constitutional doctrine has fallen into misuse and non-use on many occasions.

I am not convinced that the Government have adopted the right approach. Judicial review will not apply—primarily because if the limits are in statute, there will be nothing to review. As we all know, whether public inquiries occur is rather haphazard; Ministers often resist them until the last moment. Legislation that has recently passed through the House looks as though it will make that type of accountability even less likely. The same concerns relate to ombudsmen. The Government’s approach to justifying the exemptions does not bear much scrutiny.

By ensuring that we understand the distinction between “supply” and “provision”, amendmentNo. 123 seeks that the restrictions on public authorities in general should not be drawn too narrowly. Most public services involve supply, but in certain cases they involve not supply but provision. The distinction was taken up by the Select Committees, which felt that the Government did not emphasise the use of the words in the draft Bill. The Committees felt—and I agree with them—that by excluding the notion of the “provision” of public services, there was a real attempt to limit applicability.

I shall give concrete examples. David Bergman, director of the Centre for Corporate Accountability, told the Joint Committee that the Home Office had made it clear to him that there was an intention to restrict. The Home Office felt that by not including the word “provision”, services such as the police, the Prison Service, law enforcement bodies and inspection agencies would not be covered in respect of many of their activities. That is particularly surprising.

There is a danger that the problem will slip in. In later clauses, there are specific provisions on such services and bodies. However, clause 3, which is framed more generally, contains words that would also impinge on such bodies. I am sure that there is no intention to mislead, but there could be confusion. I hope that the Minister will try to explain why he wants to go down that route. We feel that it will have unintended consequences.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have listened carefully to the hon. Member for Kingston and Surbiton; he makes an important point. I shall be interested to hear the Minister’s response, but, oddly enough, I am not entirely persuaded that the removal of the word “provision” makes a bean of difference. The word “supply” must cover provision. I am worried and alarmed that the Home Office seems to have got it into its head that removing the word may be the vehicle for getting it off the hook of its responsibility.

Subject to hearing the Minister’s views, all I can say to the hon. Member for Kingston and Surbiton is that if I were a lawyer acting for the Home Office I might be a little worried about going into court to argue that removal of the word “provision” actually made any difference to where responsibility might lie. There are other exemptions in the Bill, of course, that relate to public policy issues, and that may be the nub of the debate that the Opposition want. However, I am not  persuaded that there is any difference in having the word “supply” rather than “provide”. I think that the supplier is the provider, and the provider is the supplier, and that the two words are in practical terms interchangeable.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department

I am grateful to the hon. Member for Beaconsfield for putting the Government’s case yet again—I am delighted that he is doing that because it is very helpful. He is right to say that the motivation for the amendment derives from the untrusting approach of the hon. Member for Kingston and Surbiton to the exemptions that we shall discuss later. I think that that was what motivated him to move the amendment relating to the difference between the words “supplied” and “provided”. He will not be surprised when I say that I do not share his views.

So the Committee understands why we prefer the wording as it stands, let me remind Members why the Government have chosen to provide for categories of duty. We considered the point last week, so I shall try to be brief. The new offence applies when the organisation in question owes a duty of care to the victim under the civil law of negligence. In the vast majority of cases, we would expect matters to be straightforward, and that no particular issues would be raised. For example, it will take little effort to establish that an individual was employed by a company, and was therefore owed a duty of care. Similarly, there is no argument that rail passengers are owed duties of care by rail companies. However, this is a developing area of law, especially in relation to the liability of bodies that carry out public functions. We therefore sought to provide clearer guidance on when the offence will apply by setting out the types of activity that it is intended to cover. That will give certainty to organisations and to the public about which situations are not covered by the offence, and will be of great benefit to investigators, as in some cases it will allow decisions to be taken early, without consideration of detailed questions about the duty of care.

The categories cover three types of duty: duties owed to those working in or for an organisation company; duties owed in respect of the workplace; and duties owed in respect of a company’s activities. At present we are concerned with the last category. Our intention is to list circumstances in which duties of care will commonly arise, and the starting point is when an organisation is supplying goods or services. The term  “supply” is used deliberately in that case; it is intended to cover the relationship between companies and either their customers or those receiving their services. For example, train companies supply a transport service to their passengers, and plumbers and gas fitters supply a service to their customers. The term also covers services supplied by the public sector, such as NHS bodies offering medical treatment, or local education authorities offering services to schools.

However, the term “providing” covers a potentially wider range of activity and could include many situations in which no duty of care is owed. For example, it would extend to circumstances in which a service was provided to the public at large, such as when local authorities were working to cut crime. No duty of care is owed in that respect, nor is the activity being supplied. Using the term “provide” rather than “supply” would therefore undermine the very clarity that we are trying to achieve. It would encourage potentially speculative investigations on the basis that the courts might perhaps be persuaded to extend the duty of care. We do not think that that is desirable.

I hope that that satisfies the hon. Gentleman. If not, I have more, but given the time I hope that he will withdraw his amendment. We will discuss exemptions later.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry), Liberal Democrat Spokesperson (Trade and Industry)

It is interesting that the Minister said that the hon. Member for Beaconsfield was answering me. It seems that the Minister is now answering him on my behalf, so there are some interesting dynamics.

I shall not prolong the debate. I am glad that we teased out of the Minister, for the record, the distinction made by his colleagues and the Home Office, because it was an important point and we may wish to return to it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central

I beg to move amendment No. 92, in page 2, line 29, after ‘vehicle’, insert ‘, substance hazardous to health,’.

The amendment is very simple—

It being One o’clock,The Chairman adjourned the Committee without question put, pursuant to the Standing Order.

Adjourned till this day at Four o’clock.