Clause 4

Corporate Manslaughter and Corporate Homicide Bill – in a Public Bill Committee at 4:15 pm on 24th October 2006.

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Public policy decisions, exclusively public functions and statutory

inspections

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 43, in page 3, line 22, after second ‘a’, insert ‘ministerial’.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss amendment No. 44, in page 3, line 37, at end insert—

‘“ministerial” means a decision made by one or more Ministers of HM Government, Scottish Ministers, Welsh Ministers or Northern Ireland Ministers;’.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

We now come to rather an important and potentially controversial bit of the Bill, although again I should make it clear that these are probing amendments and I am interested in trying to tease out exactly what the Government intend so that we can decide whether we think that they are going far enough or too far.

Amendment No. 43 would exclude only ministerial decisions from the public policy decisions that might be made by officials, and amendment No. 44 goes on to define a ministerial decision. Clearly, one of the issues that has given rise to some anxiety in the course of the passage of the Bill is whether it is giving the Government an easy time and whether they have wriggled off the hook of their potential responsibility for corporate manslaughter by limiting the way in which the duty of care operates in clause four.

I will read the clause again, because it is important to have it in context:

“Any duty of care owed by a public authority in respect of a decision as to matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests) is not a ‘relevant duty of care’.”

At what point does a decision become a matter of public policy rather than a matter of, for instance, management in the allocation of resources? That is what we need to concentrate on.

I completely accept that if we start including public policy decisions within the scope of the Bill—although there are some purists who would like that to happen—it would make the management of government impossible. There are financial constraints on government which mean that Governments must sometimes make decisions that have a potential impact on people’s well-being. Obvious examples include, for example, the way that the National Institute for Health and Clinical Excellence decides to ration or allocate drugs such as anti-cancer drugs—an example that we have heard a great deal of in the last two or three weeks—or the availability of fire engines and fire appliances, and whether one can meet the settled criteria for getting to a fire on time. One can think of all sorts of other examples, and not only in the field of emergency services—I should make that clear, because they are covered by other aspects of the Bill.

There needs to be some understanding of where the dividing line lies in the activities of the public authority concerned. For example, if the Government decide that they must cut the budget of one of their organisations, many of which are listed in the schedule to the Bill, and one of the consequences is that some health and safety training previously thought to be appropriate does not take place and an accident happens on the premises, where does the fault lie? What happens if, for example, those who run the organisation concerned say, “This is all very well: you’re prosecuting us, but it was a decision taken ultimately by the Minister.”? That is one possibility. If we exclude the Minister, the decision could have been taken by officials very high in the Department.

The amendment aims at that precise issue. The reality is that Ministers do not take day-to-day decisions about running Departments. If they do, all that I can say is God help them if they have got themselves into that mess. Equally, one picks up anecdotal evidence—I am sure that every Committee member is aware of it—that decisions taken quite low down the chain, particularly within Government, often seem to be the result of some emergency or problem that has arisen and has led to permanent under-secretaries picking up the telephone and saying that something will be done in a particular way. If that is the case, is it a public policy decision or is it a managerial decision with a direct impact? That is the question for the Committee.

The amendment is probing, because I accept that when we get to the point of public policy, if we start to prosecute people for getting their policy wrong, the rule of the judges is truly upon us. I am not sure that that is a good idea. None the less, we need to know where the dividing line is.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department 4:30 pm, 24th October 2006

As the hon. Gentleman said, the amendment brings us to our first discussion on the important topic of exemptions, which I am sure we will debate fully as the Committee progresses. For the moment, I will confine myself to the specific details of the proposed amendment, in the expectation that we will discuss the wider context in due course.

Clause 4(1) deals with decisions of public policy taken by public authorities. Public authorities are defined by reference to the Human Rights Act 1998 and include Departments, local government bodies and other bodies whose functions are public, such as primary care trusts. The clause will exempt from the offence high-level decisions concerning the allocation of resources, the weighing of competing interests or the establishment of priorities. Examples might be a decision by a primary care trust not to fund a particular treatment or a decision by a local council to allocate its resources in a particular way. As those examples demonstrate, such decisions are not confined to Ministers, but might be made by a wide range of public authorities.

The amendment would have a very undesirable consequence. The courts have already recognised that such decisions taken by public authorities are not suitable for review in the courts. In most cases, therefore, no duty of care would be owed in respect of such activities. The purpose of the exemption is not to  exclude activities that would otherwise be covered by the new offence, but to provide clarity about what is and is not covered.

The amendment would remove that clarity. If it were agreed to, the Bill would suggest that only ministerial decisions were exempt, although in reality a duty of care would not be owed in a much wider range of circumstances. The result would be that public authorities would not be clear about the application of the new offence in respect of public policy decisions. There would therefore be a risk of encouraging an overly defensive or cautious approach in those seeking to safeguard the public from risk or danger. We do not believe that that would be in the public interest.

The hon. Gentleman made reference to the management of resources; I must make it clear that the exemption is not about that. Once a public body has embarked on a particular activity, it must fully observe its safety responsibilities and cannot plead lack of resources as a defence. The exemption does not change that. Nor is it the case that the exemption prevents public authorities being accountable for their decisions. Public bodies often hold special authority or perform functions that the private sector does not or cannot do on its own account. Due to that and the fact that such bodies operate on behalf of the public, they are already subject to a strong and public framework of accountability, such as public inquiries and other independent investigations.

Clause 4(1) makes it clear that public bodies will not be liable for their decisions that are underpinned by considerations of public policy. The issue is not confined to ministerial decision making. I hope that, with that clarification, the hon. Gentleman will withdraw his probing amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Yes, I shall ask leave to withdraw my amendment, but I leave the Minister with one thought—he may want to write to me about it. I do not claim huge expertise in the field of judicial review, but it seems to me that the Minister is right to say, as a generality, that the courts have refused to interfere with public policy decisions. When he identified that as the dividing line, that had resonance for me and made sense.

I wonder whether the Government have thought about one issue. As the Minister knows, the concept of areas in which courts are prepared to interfere is flexible and can develop over time. For example, the Human Rights Act 1998—or rather the European convention on human rights, which the 1998 Act did no more than incorporate—provides for a right to life. One need only read academic treatises by academic lawyers nowadays to note that there is considerable speculation about the extent to which that right is starting to raise obligations on the state to maintain life, as opposed to imposing prohibitions on taking it except in certain circumstances. Those very decisions are often public policy issues, into which, as the Minister rightly said, the courts refuse to stray. However, I do not think that we can entirely rule out the notion that we might find them moving into such areas.

We are already on that cusp in relation to matters such as the withdrawal of treatment to people who are dying, even when the issue under consideration is not euthanasia but the point at which one need not strive officiously to keep alive. The tendency may be widened  over time. If the courts start saying that, under the 1998 Act, judicial review might intrude into such areas, would it follow that such areas would be removed from the public policy sphere and that Government Departments or public authorities would be open to prosecution for corporate manslaughter?

The Government may have already carefully considered that point, but it would be useful to have a response as to the way in which they envisage the provision working before this Bill goes on the statute book. Would a court decision, so removed from the field of corporate manslaughter that it could look at a particular area of Government policy—such as in the operation of the European convention on human rights—have the immediacy of triggering, as a consequence, a duty under this Bill?

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

If what I am about to say does not help the hon. Gentleman, I will do as he suggests and write to him with the detail. The Bill does not link the exemption to circumstances in which the civil law does not apply, but it recognises the same principle. The courts will determine the limits of the exemption in the light of our human rights obligations.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

That is helpful. If the Minister would like to amplify his remarks in a letter, that would also be helpful. On that note, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 45, in page 3, line 26, leave out subsection (2).

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss amendment No. 46, in page 3, leave out lines 33 to 37.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

There might be some repetition of the previous debate in our discussion of these amendments. Amendment No. 45 would delete the lead subsection—subsection (2)—of clause 4 and amendment No. 46 would delete the definitions of “exclusively public function”. It would drive a coach and horses through clause 4 and is intended to tease out from the Government what the consequence of that would be. We might have touched on that already but I do not need to amplify it further. If the Minister has any further comments on this probing amendment, I would be grateful to hear them.

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central

Given that the amendment is probing, I ask the Minister to address the following points. We are talking about the exercise of an exclusively public function and its exemption from the law—unless it falls within the categories set out in clause 3(1)(a) which refers to

“a duty owed to... employees” and persons who are in quasi-employment positions, and in clause 3(1)(b), which refers to:

“a duty owed as occupier of premises;”

May I take it for granted that there is a precise analogy with health and safety legislation in which members of the public are protected, because that is a duty owed as an occupier of premises? The duty to the public in that provision is clear and is not excluded by the impact of clause 4(2). That must be the case, but I would be grateful if the Minister would again make it clear to the Committee that it is.

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

I will try to help my hon. Friend the Member for Manchester, Central. If I do not, I am sure that he will return to the points that he has raised.

As the hon. Member for Beaconsfield said, we have touched upon this subject in previous debates, but I should deal with it in the context of the Government lifting Crown immunity. The new offence will apply to Crown bodies. Criminal accountability will extend to their management and organisation for the first time—a significant step. That is no small achievement and it shows that where private and public sector bodies are engaged in similar activities, there will be a level playing field under the new offence. That has been widely welcomed by industry and trade unions alike. However, it raises difficult questions about when Government and public bodies should be accountable in the criminal courts for the way in which they carry out their activities.

The exemption for an exclusively public function goes to the heart of the debate. It is important to recognise that the offence is rooted in the need for employers to provide safety in the workplace, to ensure that employees have safe systems at work and that work sites are safe places to be. The Bill applies widely to the responsibility that the Crown and other public sector bodies have as employer and occupier. The exemption expressly does not override those duties. The adequacy of the carrying out of those functions is therefore relevant.

In our view the purpose of the offence is not to establish new ways of holding the Government to account for the way in which they meet their public responsibilities. The exemption therefore deals with activities that fall within the Crown prerogative, or that are of the type necessitating state authority. We believe that those are intrinsically public functions, and their management and organisation will frequently be closely linked to questions of public policy, so that they are more appropriately subject to wider forms of accountability—public inquiries and independent investigations—than to the accountability that can be achieved under the criminal law.

The exemption covers activities carried out under the prerogative, including activities at the heart of state responsibility, such as Government provision of services in a civil emergency. It also extends to activities that by their nature require statutory authority. It does not include activities merely because they are carried out on a statutory basis, however; the activity’s nature must be such that it can be carried out only with state authority. For example, the NHS provides medical services under a statutory framework, but medical treatment is not an exclusively public function; there is nothing intrinsic to medical treatment that requires  statutory powers, and private organisations can offer medical treatment independently. Examples of exclusively public functions are the licensing of drugs, the issuing of driving licences and the granting of planning permission. Exemption does not cover activities merely because a licence is required to perform those activities, however—[Interruption.]

Photo of Joe Benton Joe Benton Labour, Bootle 4:45 pm, 24th October 2006

Order. I am sorry to interrupt the Minister but could someone establish what is going on outside the room? It sounds to me like a fire alarm. In the meantime, let us proceed and wait for news to be brought.

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

Watching television in this country requires a licence, but that does not make it an exclusively public function. Only an activity that by its nature requires statutory authority is covered by the relevant limb of the exemption. The phrase “by its nature” is intended to focus the test on the core part of the activity—the public function—and the exemption does not extend to activities that are ancillary to that function. Keeping people in custody is intrinsically a public function, but secondary activities such as providing catering to prisoners or responding to their health care needs are not exclusively public functions and would therefore be within the scope of the offence whenever duties of care arose.

The exemption does not override duties of care owed by an employer or occupier. An authority that otherwise benefited from the exemption would still be under a duty to provide safe systems of work for its employees and to ensure that its premises were maintained in a safe condition. If the authority committed a gross breach of either duty, it would be liable to prosecution for corporate manslaughter. That is the overall picture.

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central

I suspect that I am being troubled by something that is not really an issue, but let me put to the Minister a point relating to the comparison with the Health and Safety at Work, etc. Act 1974.

It is clear that organisations owe a duty of care to their employees and, as the occupiers of premises, to the wider public who may enter the premises. They also owe a duty of care to the passing public in the operation of their working activities. On a narrow interpretation of the Bill, it seems that the duty of care is owed specifically to employees in some areas, and that there is a general duty of care as an occupier. Will the Minister clarify, possibly at a later stage, by analogy with the 1974 Act that the public are specifically covered if they are on premises in the vicinity of the operation of work?

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

I want to reassure my hon. Friend, but it would probably be better to write to the Committee; if we need to return to the subject we can easily do so. I am told that the public and premises are covered by the occupiers’ duty, but my hon. Friend wants to be reassured, so I shall set it out in letter form. Committee members will thus be able work out whether they want to pursue the matter further.

As I tried say in a detailed response to the hon. Member for Beaconsfield, the courts have shied away from imposing duties of care in relation to the exercise of many activities that are exclusively public functions. Amendments Nos. 45 and 46 would result in a lack of clarity about whether such activities were covered and whether they should be considered by the courts. That in itself may leave the bodies carrying out those functions uncertain about whether they were covered, which could encourage risk-averse behaviour. We should not take that risk lightly: public authorities often find themselves in a difficult position when seeking to protect others from harm. We would not want the fine balance needed in decisions such as taking children into care to be swayed by fear of prosecution. That would not be good for children or for families.

I hope that I have reassured the Committee about public functions. I know that we will want to discuss some aspects further, but I hope that the hon. Member for Beaconsfield is prepared to withdraw the amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the Minister, but he may have detected from the brief way in which I opened the debate that, in all honesty, I find it a difficult matter. Above all, I want clarity as to what the Government intend, and the Minister has been helpful in providing that. However, some difficult issues remain.

The Minister cited the example of children being taken into care. It is something that I know of from personal experience. I sometimes have serious anxieties about the manner in which children are taken into care by local authorities, and the treatment that they subsequently get once they are in care. Indeed, children are sometimes killed when in care, and it is not unusual for public authorities to be criticised for being negligent in allowing that to happen.

In the context of the Bill, that raises some interesting questions, as the Minister will appreciate. He is saying that although there might be a possibility of prosecuting an individual social worker for manslaughter because of gross negligence, there would be no possibility of prosecuting a local authority for those of its public policy decisions that might arguably have brought about the situation. That may be so, notwithstanding the fact that there might be scope for the public authority to be sued for negligence at civil law, even though no criminal prosecution would occur. That may be another key area upon which the Committee will want to reflect.

I shall withdraw the amendment, but I must tell the Minister that this is one of only a couple of areas in which, as a result of his comments, I intend to do a lot more thinking, particularly on whether Parliament might wish to impose higher duties or at least the possibility of criminal sanctions for failure. However, I have to accept what he said—that once we move down that road, the shift to risk-averse decision taking in areas that are inherently difficult could become very real.

I certainly do not wish to put an excessive burden on groups of individuals who on the whole will be trying to make decisions for the best in areas where one often cannot easily come to the right decision. With that in mind, I shall go away and think about the Minister’s  answers; and we can return to the subject on Report if necessary. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.