Clause 5

Corporate Manslaughter and Corporate Homicide Bill – in a Public Bill Committee at 4:45 pm on 24th October 2006.

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Military activities

Photo of Jo Swinson Jo Swinson Shadow Secretary of State for Scotland

I beg to move amendment No. 126, in page 4, line 2, leave out ‘in preparation for, or’.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss amendment No. 127, in clause 6, page 4, line 27, eave out ‘in preparation for, or’.

Photo of Jo Swinson Jo Swinson Shadow Secretary of State for Scotland

It is great to see you back in the Chair, Mr. Benton. I am pleased to continue the discussion on exemptions. Amendment No. 126 deals with clause 5 and the military, and amendment No. 127 deals with clause 6 on policing and law enforcement.

It is uncontroversial to state that some exemptions from the Bill’s scope will be necessary, particularly in relation to the military and policing. In training of a hazardous nature and dealing with terrorism, problems with public disorder and civil unrest, there will clearly be risks to members and employees of our armed forces and policing authorities. Those risks will be unpredictable and it is not possible to foresee all eventualities. Some exemptions are needed so that those people can carry out their general duties. However, my problem with clauses 5 and 6 is to do with whether routine training will be exempted.

Amendments Nos. 126 and 127 serve similar purposes in relation to the military and policing respectively and would remove the words “in preparation for, or” from clauses 5(1)(b) and 6(1)(b). We want that paragraph in both clauses to say, “activities carried on directly in support of such operations”, so it is clear that routine training would not be covered and would thereby exempted from the provisions. Training environments need to be created so that those serving on the front line for us can experience simulations of the real risks that they may face when doing their job. However, training exercises must be sufficiently well planned so that they do not lead to the tragic consequence of death.

Photo of Michael Fabricant Michael Fabricant Opposition Whip (Commons)

My hon. Friend the Member for Beaconsfield has spoken about his experience in the court room. I can talk about my experience having a petrol bomb thrown at me during training for riot police officers. If I were a riot police officer going into such a situation, I should not like to be on the streets having a petrol bomb thrown at me if I had not encountered it under controlled conditions. If that were stopped as a consequence of the hon. Lady’s amendment, it would weaken police forces’ ability to control difficult situations in reality.

Photo of Jo Swinson Jo Swinson Shadow Secretary of State for Scotland

In that case I must clarify my remarks. Clearly, it is not pleasant for people to have petrol  bombs thrown at them wherever they are, but if it is going to happen they would prefer that it had occurred previously in controlled circumstances. However, in a training scenario the proper precautions must be taken, including protective clothing being worn, and all the different consequences must be thought about, including what could go wrong and what might cause death or injury. If death occurs as a consequence of badly planned training, we need such cases to be examined by the courts and those responsible to be held to account.

The Joint Committee agreed with us, stating:

“We are concerned that ‘preparation’ for combat operations would encompass routine training and believe that such a wide exemption cannot be justified.”

I seek some reassurance from the Minister that routine training will not be exempt and that the military and the police should still have to demonstrate that they have properly planned and thought through their training. In any such circumstances, things can still go wrong, but if the organisations had thought it all through a court would find that that had been done, whereas if training had not been well thought out and well planned, it would be relevant to the court’s decision.

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

As the hon. Lady said, we move to the important part of the Bill. Clauses 5 to 8 set out a number of specific public functions that will not be covered by the new offence. I will pay careful attention to the concerns that have been expressed about the exemptions. We have sought to make the exemptions as tight as possible, but inevitably there are questions about their proper extent. As the detail of the clauses demonstrates, we have sought to define carefully where exemptions should apply.

Amendments Nos. 126 and 127 deal with an important part of the exemptions extended to the armed forces in clause 5 and to the police in clause 6(1). Those exemptions apply to a narrow band of operational activity, but extend across the range of relevant duties of care in clause 3, including the employer’s duty of care to his employees. That contrasts with, for example, exemptions covering the emergency services and, in the majority of circumstances, police forces, where the exemptions focus on the impacts of operational activities on others, but maintain liability for ensuring safe systems of work for employees.

I should focus on the employer aspect of the exemption. If public policy warrants an exemption in respect of the employer’s duty, it is clear that the duties owed to others would similarly fall to be exempt. As the hon. Member for East Dunbartonshire (Jo Swinson) said, the armed forces are in a unique position by the nature of their activities, often working in extremely difficult and volatile situations, in which military objectives are absolutely imperative. That raises difficult questions about the extent to which the court should later scrutinise decisions about how those objectives were secured and whether the systems that were in place for carrying out those activities were adequate. Those considerations have been recognised in the civil courts. It is now a firmly established part of civil law that a combat immunity extends to the armed forces, for the reasons that the hon. Lady described.  I welcome the recognition in the amendment that in principle the armed forces should be exempt in certain circumstances.

One consequence of that is that the armed forces will not owe a duty of care where the combat immunity applies, whether or not an exemption is granted in the Bill. It is important to include that in the Bill, for the sake of clarity for the armed forces and to remove the possibility of speculative and potentially damaging prosecutions. Doing so also means that, for combat immunity, we are not exempting activities that would otherwise be covered. An exemption is based on the civil law concept of combat immunity and focuses on difficult operational conditions in combating terrorism and potentially violent peacekeeping operations. However, we do not seek to exempt the military generally and much of the day-to-day activities of the armed forces, on bases and patrolling the seas, will be covered. The hon. Lady’s point about training is within that position.

We have carefully considered the proposals with service colleagues. I am satisfied that we have extended the right aspects of combat immunity to the new offence. I hope that the hon. Lady is satisfied that the point that she raised about normal, regular and well-planned training has been addressed.

To turn for a moment to the police, the exemption in clause 6 mirrors that which I have described for the armed forces. Where the police and armed forces overlap in their activities to combat terrorism and serious public disorder—at times even working together—it would be illogical for the police to have a different liability for the offence. I understand hon. Members’ concern about the exemption being too wide, but I believe that it is necessary.

Operations to tackle terrorism, civil unrest and serious disorder will place significant pressures on the police and may well be carried out in haste in emergency situations. The police and other law enforcers will not necessarily have the luxury of time or resources to ensure that all their obligations under health and safety have been met before attending to the situation. It would be wrong for one set of priorities to be given undue weight. We would not want the police to be slowed down in their response by undue concerns of the threat of manslaughter charges. That could be detrimental to the protection of the public at large from the serious threats.

There will inevitably be questions about exactly what is covered by the term “preparatory”. We do not think that it is desirable to try to spell out a list of activities in the Bill—an impossible task—but that does not leave the scope of the exemption at large. Some concern has been expressed that “preparation for” could be interpreted very widely by the courts to cover, as the hon. Lady mentioned, training or routine maintenance of riot control equipment and so on. I hope that I have shown her that that is not the intention. We believe that the drafting is sufficiently tight. Specific mention is made of training in subsection (1)(c) of clauses 5 and 6, which deal with hazardous training.

Photo of Michael Fabricant Michael Fabricant Opposition Whip (Commons) 5:00 pm, 24th October 2006

To return to the police, they deal with certain equipment, which the  Minister mentioned. We know from today’s tables that some police forces are better than others—it is worth noting that Staffordshire came top of the poll. What if a police force had a fairly slapdash way of maintaining equipment and a gas canister exploded? Surely the police force itself should bear some responsibility.

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

The hon. Gentleman makes that point rightly. I would say that, if there was a reasonable prospect of the event being foreseen in the general application of the force’s responsibilities, the jury would have the opportunity to take that into consideration.

We have tried to take a significant step forward in taking away Crown immunity. We have tried to ensure that the exemptions are targeted and appropriate in the conditions that I have outlined. I hope that, in those circumstances, the hon. Lady feels reassured and will withdraw the amendment.

Photo of Joe Benton Joe Benton Labour, Bootle

Before I call Jo Swinson, I wish to notify the Committee, just to put everyone’s mind at ease, that I have been informed that there is a fault with the fire alarm on the first floor in the area of the Members’ Tea Room, which is being looked at now.

Photo of Jo Swinson Jo Swinson Shadow Secretary of State for Scotland

I welcome the reassurance that the Minister has given, the fact that it has been put on the record that routine training and the day-to-day activities of the military and the police will not be exempted by this measure, and the maintenance point raised by the hon. Member for Lichfield (Michael Fabricant). I therefore 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. 47, in page 4, line 4, leave out paragraph (c).

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss amendment No. 48, in page 4, line 13, leave out subsection (3).

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Amendment No. 47 would leave out clause 5(1)(c), which is the paragraph on

“training of a hazardous nature, or training carried out in a hazardous way”.

The second amendment would leave out clause 5(3), relating to the special forces.

I shall deal first with paragraph (c). The Minister touched on this issue in his earlier response, which is why I did not intervene in that debate. I am referring to training of a hazardous nature, if it is accepted that it is necessary for the carrying out of military operations. Although I can see the attraction of excluding it from the possibility of a corporate manslaughter charge being brought, I want to raise the question of whether it is necessary to do so as distinct from

“activities carried on in preparation for, or directly in support of,” military operations, which is clearly at a time when actual imperatives are taking place relating to active service.

My reason for saying that is that I question whether a prosecution could be successfully brought, provided  that it were open to the Ministry of Defence to show that a proper assessment of the hazards had been made before the hazardous training took place. Although there was inherent hazard, as long as that inherent hazard had been provided for in so far as that was possible and things had been considered beforehand, we would be talking about a complete exoneration if something then went wrong.

I do not think that the Minister, in his answer to the earlier debate, quite dealt with the issue. I accept that ultimately it is a public policy decision, but why should people, simply because they decided to carry out hazardous training, be protected from a prosecution brought for gross negligence corporate manslaughter because they were in fact grossly negligent in the way in which they carried it out?

Let me give the Minister an example. There is a failure by the MOD to carry out in one location proper checks to parachutes after packing, as a result of which some parachutes fail to open and servicemen are killed. In those circumstances, if what is shown is a command structure failure in the armed forces without individual culpability, why should the Ministry of Defence escape corporate manslaughter prosecution when its systems were apparently at fault in allowing it to happen? What about abseiling off rocks when equipment has not been properly checked and the ropes fail? Those are just examples of the sort of hazardous training that the military must undergo frequently.

What is the public policy reason for exempting the military completely? I think that it was argued that by its very nature, hazardous training involves hazards, and that therefore it is wrong for the military and the Ministry of Defence to be held responsible under corporate manslaughter if somebody gets killed in the course of that sort of training. But it seems to me that that misses the point. Inherent risk can never be eliminated, but nor can anybody be prosecuted for it. The only circumstances in which I suppose that clash could happen are those in which somebody argued that a training was so hazardous that it should not be carried out at all and the Ministry said, “Actually, for public policy reasons, we had to carry it out, however hazardous it might be.”

There I have sympathy with the Minister. I cannot help wondering whether it would not be possible to craft an amendment that protected the Ministry of Defence from precisely that sort of assertion, but the unintended—or perhaps intended— consequence of the framing of the provisions on training is such that even hazardous treatment incompetently and negligently organised and conducted is completely protected from any criminal sanction. That bothers me, because I wonder on a public policy basis whether that is the appropriate approach. I accept that there are difficulties.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

On my hon. Friend’s example on which he said he had sympathy with the Minister, that of hazardous training that could be carried out in only one particular way, does he agree, looking back at clause 1(3)(c), that when the jury came to consider that matter, they would have to be persuaded that there was a gross breach, on the basis that the breach fell

“far below what can reasonably be expected of the organisation in the circumstances”?

Would not what he describes be perfectly properly considered as part of the circumstances of the alleged breach, leaving the jury to conclude, quite probably, that there was no gross breach?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I think that my hon. Friend is right. Of course, the Government could argue that they are entitled to protect the Ministry from even the prospect of prosecution and all the anxieties that go with it if they take the decision that a particular future military operation requires really hazardous training. We must accept the fact that in the armed forces, a great deal of hazardous training routinely takes place. Practising escapes from submerged submarines or training in the tower at Portsmouth are rather hazardous activities. I can think of many other activities that are clearly inherently hazardous, and I want to see them protected. My concern is that the protection extends much further than that to protecting the Ministry of Defence in a corporate sense from prosecution for what many would regard as a totally botched training operation.

I am trying to think of examples from the recent past. As I recollect, one case involved the aftermath of training in the escape tower at Portsmouth. On coming out, service personnel were required to run in their wetsuits. As a result of that, I seem to remember, one serviceman collapsed and died from heat stress. I think that internal inquiries took place afterwards, and changes were subsequently made to how training was carried out. I suggest to the Minister that that is an example of something that might have had a legitimate purpose but was not fully thought through, so one asks the question: is it right that we should be protecting the Ministry of Defence from prosecution?

One of the attractive features of the Bill is that precisely because the Government have taken the decision not to target individuals, we can be slightly more relaxed about the problems that it may pose to organisations. Clearly, organisations cannot serve sentences of imprisonment; they can only be fined and most cases would involve raps over the knuckles and embarrassment, which is what the Minister intends. We should not pitch the legislation in a way that leads to safety culture being put so high that the ordinary activities of the organisation are seriously inhibited. I do not want to see that happen. In the context of the military, I fully accept that we need to be careful because the truth is that hazardous training is hazardous, but neither should we go so far that we are in fact providing a complete protection against charges of serious negligence. It is all the more ironic because in different contexts there may be other laws that will still bite on organisations, such as the Health and Safety at Work, etc. Act, although of course in that context there are also exemptions for this particular setting.

I have a concern and wonder whether there is a better way of drafting the Bill—one which makes it impossible to question the nature of the hazardous activity, but possible to question the manner in which it was executed. That may be too difficult to draft, but the Committee and the Minister may want to consider it.

The second amendment in the group is, in a funny way, more straightforward. I am at a loss to understand why subsection (3) is in the Bill. It appears to give some special protection to the Ministry of Defence in respect of activities carried out by members of the special forces. I invite the Minister to reread subsections (1) and (2) in the quiet of the evening. They are so wide in scope that I am unable to think of a special forces activity that does not fall within the protection afforded by those two subsections. If that is the case, why is subsection (3) there? Is there something that I have completely failed to understand about the activities of the special forces that requires some extra level of protection? My comments might not be correct if we start tinkering around with hazardous training as an example, but assuming for one moment that the entirety of the rest of this clause stays intact, why are activities carried out by members of the special forces not covered by a relevant duty of care?

As the subsection is drafted, it seems that if a member of the special forces leaves his quarters at the Hereford base, goes to the top of a staircase and as he goes down, one of the treads gives way and he falls to the ground, killing himself, there is no redress against the MOD whatsoever. I cannot believe that that is what is actually intended.

Can the Minister please explain what aspect of special forces activity is not covered by the blanket protection in respect of preparation for and in support of operations and training of a hazardous nature? I know that the special forces are used for all sorts of things, some of which would be difficult to discuss in Committee, but trying to apply my mind as best I can, I find it difficult to see that those activities will not be covered by subsection (1)(a),(b) and (c).

I appreciate that there may be a problem and that it may present the Minister with a difficulty. He may wish to speak to me privately at the bottom of the staircase. However, in pure logic, something is a little odd because all the skulduggery in which the special forces are supposed to become involved seems to be covered by subsection (1)(a), (b) and (c). What is it that requires special attention? Is it the case that, as usual, someone has sent a memo round to the Ministry of Defence and received one back saying, “Above all, the special forces mustn’t be covered!” so such matters have just been slotted into subsection (3) without any more thought? As drafted, the provision is bizarre and the Minister will have to rise to the occasion and, without betraying the national interests of the state, explain why it is there.

Photo of James Duddridge James Duddridge Conservative, Rochford and Southend East 5:15 pm, 24th October 2006

I should like the Minister to stress test a particular case study and say whether clause 5 is sufficiently robust. He may know that half of my constituency is owned by the Ministry of Defence. However, the land that the Government privatised is leased to QinetiQ and, on that land, a number of military activities take place in respect of training and preparation for war. I believe that it would be an appropriate site for special forces to test operations prior to going into any situation. Occasionally, however, the military works alongside QinetiQ, which is a plc. I believe that on that site, which is owned by the MOD, and on more than 20 to 25 sites  throughout the country QinetiQ is responsible for health and safety. I should like the Minister to deal with my concern that there will be resistance from that plc to allowing military operations to continue on the sites because the military would be immune from a corporate manslaughter prosecution, but the public company, QinetiQ, may indeed be subject to prosecution.

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

I fear that I may not answer the hon. Member for Beaconsfield in the way that he would consider appropriate. Clearly, there are issues in connection with the intelligence services that prevent me from going into the detail that he requires.

As the hon. Gentleman described, amendment No. 47 would remove the exemption in clause 5 for hazardous training. He accepts that it is important that our service personnel are properly prepared for the difficult and dangerous circumstances that they will face, either on the front line in combat or when undertaking peace-keeping missions in potentially hostile environments. The armed forces owe their personnel a duty of care to ensure that they are properly trained in that respect. Realistic training ensures both that soldiers can deal with difficult circumstances, reducing risks of death and injury, and that the effectiveness of troops in those circumstances is maintained.

I should emphasise that in carrying out all training, the armed forces are committed to the highest standards of safety performance and take their responsibilities to personnel very seriously—a point that has been accepted by the hon. Gentleman. Instructors are exceptionally well trained and competent, and best practice processes are always strived for. However, the best means of training for hazardous situations is to make that training as realistic as possible so that personnel are readily able to translate those pressures, experience and requirements to their operational work. For the armed forces, that will inevitably mean that elements of training are clearly hazardous.

We have considered the provisions carefully with colleagues in the Ministry of Defence. I will say that again, and the hon. Gentleman will understand why: we have carefully considered the provisions with colleagues in the Ministry of Defence. There is significant concern that bringing hazardous training within the ambit of the offence would transfer risk from the training scenario to the battlefield. Risks in training would be reduced, but servicemen would be exposed to a greater level of risk when conducting operations because they were less well prepared.

That does not translate into a need to exclude all training from the scope of the offence. As I tried to explain to the hon. Member for East Dunbartonshire, many circumstances that fall outside the scope of the criminal law because of Crown immunity will be covered in future. It might be helpful to illustrate that with some examples.

The Ministry of Defence has received a number of Crown censures for health and safety failings, some of which have involved fatalities, in the way in which training has been carried out. For example, apprentice tradesman Kevin Alan Sharman drowned in a cave in Wales while undergoing adventurous training at  Sennybridge. An investigation established that risks had not been properly controlled. The Ministry of Defence also received a Crown censure about a failure to ensure the health and safety of a Royal Marine during recruit training at Woodbury Common in Devon. Furthermore, arrangements for monitoring and reviewing preventive measures were criticised in a case involving the accidental shooting of a soldier by a gun used in an improvised firing position. None of those cases would be covered by the exemption that we are discussing.

I hope that the Committee is assured that we have taken a careful approach to the issue, not sought a blanket exemption. There is a requirement for some hazardous training, or training done in a hazardous fashion. We could further mitigate the risks involved in that, but doing so would undermine the very objective of the training in the first place: to prepare troops for dangerous and risky situations. Examples include refuelling planes mid-air or replenishing ships at sea. In the normal course of events, risks could be minimised by a plane landing and being refuelled or ships docking and taking supplies on board. However, the armed forces need to practise those activities as they would be undertaken during combat operations; of necessity, that involves accepting greater risks. However, risks that are not part of the training will not be taken.

None of that is to say that the armed forces will in future take a less responsible approach to the conduct of such training. We do not want the effectiveness of training to be undermined, with consequent risks to the safety or capability of troops in operations, because commanders feel constrained by the application of the offence created in the Bill.

Amendment No. 48 would remove the exemption for the special forces. Operational activities and hazardous training for all armed forces are excluded under clause 5 in any event. However, a wider exemption is appropriate for the special forces because such units operate, train, liaise with and support the security and intelligence services. Those services are not covered by the new offence because of the inevitable difficulties that would arise in any investigation and prosecution. In particular, there would be a risk of compromising the secrecy that attaches to their work in respect of personnel, operations and operational techniques. Owing to the risks to national security, it has been widely accepted, including in pre-legislative scrutiny, that the new offence should not apply to the security and intelligence agencies. Similar considerations arise in respect of the special forces.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am not surprised to hear the Minister’s response, but will he confirm that excluding the special forces would have an interesting consequence? Suppose, for instance, that banal and routine failures in maintaining property at a special forces base led to the death of a serviceman as he got out of bed in the morning. His death would be unrelated to training, but might be the consequence of gross negligence by the Ministry of Defence property services department. However, he would not be covered. In effect, anything  unrelated to his role that happened to a member of the special forces at the hands of the Ministry of Defence could not result in the prosecution of the Ministry.

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

I fear that the hon. Gentleman may be right, so I shall look further at the amendment, as he has asked me to. However, he understands the general principle of why the special forces are treated in the same way as the security and intelligence agencies. With the caveat that I shall reflect on the example that he has given, I ask the hon. Gentleman to accept the spirit of why the special forces are treated as they are. I hope that he will withdraw his amendment. I shall come back to him about the scenario that he raises. I will talk to him at the bottom of the stairs about a number of issues that I have not been able to explain to him in Committee. He will know the reason for that.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the Minister for his response. I shall deal with the amendments separately. On amendment No. 47, the Minister has gone a long way towards persuading me that it is probably impractical to include training of a hazardous nature in the scope of the Bill. In some instances, all that remains will be Crown censure under the 1974 Act. That will not be as a result of the provisions of the Act, because the ministry and military are exempt, but, in effect, there is a remedy, albeit one that does not lead to prosecution.

As far as amendment No. 48 is concerned, I hope that the Minister has got my point. He may be right that there is absolutely no way to put together a package that provides any sort of protection to members of the special forces. I think he can see the logical outcome of the extraordinary blanket exemption, which would also apply to the intelligence services. Presumably, if someone were to fall down the staircase at the headquarters of the Secret Intelligence Service or the Security Service, there would be no redress through prosecution, however culpable the Government’s property services department might be. I can see that the prurience of the press might be entertained by the facts that would emerge in a trial, such as the extent to which a building might be in a ramshackle condition or something that might have been done that led to a failure, but it is slightly unfortunate that individuals—or rather their relatives, as the individuals in question will be dead—should be left so singularly without redress for what falls so far outside the ordinary scope of secret activity.

The Minister might be right that there is no way to draft an appropriate provision, but I slightly regret that. I would have thought that there must be some way of enabling such matters to be covered while protecting special forces or the intelligence services from scrutiny in the fields of their activities. However, I shall go away and reflect on the matter, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Alan Campbell.]

Adjourned accordingly at twenty-eight minutes to Six o’clock till Thursday 26 October at Nine o’clock.