Clause 6

Corporate Manslaughter and Corporate Homicide Bill – in a Public Bill Committee on 26th October 2006.

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Policing and law enforcement

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

May I say good morning to you, Mr. Benton, and to the Committee as we continue our deliberations?

I beg to move amendment No. 112, in page 4, line 24, leave out ‘police force or other’.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss Government amendments Nos. 113 to 118.

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

Clause 6 deals with how the offence will apply to the activities of police forces and other public authorities that have law enforcement functions. I see that amendments have been tabled on the detail of what activities should be exempted; we will discuss those a little later. First, however, I turn to those to whom the exemptions apply.

Although clause 6 is aimed primarily at the police, other public authorities can be engaged in the same or similar activities, so we intend to extend the exemption to them—and to an extent it already does. However, we are not satisfied that the clause deals adequately with the full range of public authorities engaged in law enforcement. The amendments are intended to ensure that when public authorities other than the police deal with terrorism, civil unrest or serious public disorder, they too will be exempted from the offence.

The exemption as it stands, and as we propose amending it, does not extend to public authorities that are involved in serious disturbances but are not responsible for countering them, nor for training related to their roles. One example is ambulance staff, who may be called upon to provide medical treatment to those injured in a riot but will not be responsible for tackling the riot itself. The exemption is specifically in connection with terrorism, civil unrest and serious public disorder, and training to improve the public authorities’ effectiveness when dealing with such circumstances. It deals with a limited range of public authorities and a limited range of training. We are satisfied that that extends beyond the police.

What we have in mind, in particular, is prison officers who come under attack during riots. Prison officers can find themselves in the same sort of situations as police officers, and we do not see the logic in treating those activities differently. In order to assure Committee members that the amendments are  necessary, I shall outline the type of hazardous training that prison officers undergo. Like the police, prison officers undergo full riot training, which includes dealing with petrol bombs—a point raised during our previous deliberations. Much of that training focuses on ensuring staff and aggressor safety during incidents, but it necessarily includes real experiences of danger.

Similarly, amendments Nos. 116 to 118 are about ensuring equitable treatment for all police and law enforcement activities, whether carried out by the police forces listed in clause 13 or by other public authorities with law enforcement roles. In particular, we want to ensure that the operational activities of police working in harbour authorities such as at ports will be exempted. That has always been our intention, but when we discussed the matter with colleagues in the Department for Transport we found a potential technical deficiency in clause 6 in that respect. It is dealt with in amendments Nos. 116 to 118.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the Minister for explaining the scope of the amendments. I have two concerns. The first is that he wants to extend a particular sort of training to the Prison Service. Is the drafting such that the Prison Service will be the only organisation caught by it? It seems to me that the wording has the potential to extend much further than that.

I realise that exhaustive lists can sometimes be a risk, because civil servants cannot always identify every public authority that might be covered, but my feeling is that the provision goes much wider than the Prison Service. On the face of it, any organisation involved, even peripherally, in operations dealing with terrorism, civil unrest and serious public disorder would be caught. Perhaps they should be covered, but unless the Committee has a pretty clear view of what we are talking about, there is a slight risk of our letting through something much wider in scope than we realise.

Photo of Michael Fabricant Michael Fabricant Opposition Whip (Commons)

Last time we met my hon. Friend talked about the possibility of an SAS officer getting out of bed to go to training but then falling down the stairs because there was something wrong with the construction of the building. Would not a local government officer doing civil defence training, for instance, also be included in the ambit of the amendment? If there was an injury during the training itself, that would be fair enough. However, if the officer was put up in a hotel that was owned by a local authority that had not shown a duty of care in properly maintaining the stairs or a light fitting and the chap was then electrocuted, is there not a possibility that that authority would be exempt?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. Friend makes an important point. That is the sort of thing that we need to tease out in Committee, so that we can be satisfied that we know what the scope will be.

It would be helpful if the Minister could explain a slightly more general point, which I suppose applies to the armed forces as well, but particularly to policing and law enforcement, emergency services and children protection, which are dealt with by clauses 6 to 8. Those clauses are not stand-alone provisions because,  as I understand it, they will have to be read in conjunction with the existing exemption that we are providing for in clause 4(2), which says:

“Any duty of care owed in respect of things done in the exercise of an exclusively public function is not a “relevant duty of care” unless it falls within section 3(1)(a) or (b).”

All the bodies in question appear, potentially, to be public authorities anyway, so they are already protected under clause 4(2), which is a substantial fetter on the “relevant duty of care” in clause 3. The Government are adding yet a further restriction on prosecuting the military, police authorities, emergency services or local authorities under child protection law.

Unless I have misunderstood the position, those further restrictions remove policing and law enforcement entirely from the protection that would otherwise be provided by the framework of the Bill, by exempting

“operations within subsection (2)...activities carried on in preparation for...such operations” and

“ training of a hazardous nature...which...needs to be carried out” for those operations.

I am sure that the Minister would be the first to admit that those restrictions make substantial inroads into the framework of the Bill. They are a double whammy—not only do police authorities have public authority protection, but they have further protection. As we know, particular concerns have been expressed that the Bill would already remove from the Prison Service—which is not specifically covered, except in clause 4(2)—any possible liability for corporate manslaughter in the context of a death in a cell during the exercise of public duties. Why does the protection afforded to the Prison Service under clause 4, which is already extensive, need to be reinforced under clause 6? Perhaps I am wrong about this, but I would have imagined that any activity taking place within a prison

“in the exercise of an exclusively public function” would already be covered.

I hope that the Minister has got my point, and I am sorry if I have laboured it a bit. I should have thought that suppressing a riot in a prison would be part of the exclusively public functions of the Prison Service, but if I am wrong about that, doubtless somebody can explain it to me, so I should be grateful if the Minister could amplify his remarks.

Photo of Jo Swinson Jo Swinson Shadow Secretary of State for Scotland, Liberal Democrat Spokesperson (Scotland)

I welcome the fact that the Minister wrote to all members of the Committee to explain the reasons for tabling the Government’s amendments. On reading the letter again, I picked up on the fact that the amendments address two minor issues. The technical provisions on harbour authorities are not controversial, but it seems to me that the amendments do not make merely a minor change to the legislation. In fact, they seem to create a wide definition of exempted categories—any public authority involved in “policing” or other “law-enforcement activities”. That net could be cast very widely indeed, and local councils could well be included. In fact, it might not always be that simple to draw the line.

In moving the amendments, the Minister said that they applied mainly to the Prison Service, as the hon.  Member for Beaconsfield (Mr. Grieve) observed. However, if they are meant to cover the Prison Service only, why cannot the service be named? Many other organisations and departments are named in the Bill, so the amendments are clearly designed to catch much more. We would all welcome clarification on whether the provisions will apply to authorities other than the Prison Service, especially as that latter organisation is probably the least controversial.

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central

There is genuine concern, as I am sure my hon. Friend realises, that the clause as amended would be very open; the definition of “public authority” would become enormously wide. Will he undertake to have a careful look to see whether the width of the clause as amended is what he wants, or whether there might be better ways of doing it—perhaps by being specific about the public authorities that he wants caught within the ambit of the Bill?

The Committee must be satisfied that we do not leave the matter so open that we come to regret the fact that we unintentionally allowed people to escape the ambit of corporate manslaughter in the public domain; frankly, none of us could conceive that to be the case. I hope that my hon. Friend will take on board the points that have been raised this morning.

Photo of James Brokenshire James Brokenshire Conservative, Hornchurch

I seek further clarification on the language of clause 6 as it will be amended. In particular, the definition seems sufficiently wide to capture people and organisations associated only indirectly with the preparation of civil contingency-type matters. For example, in an emergency local authority officers might be actively engaged in gold command and co-ordinating what is happening. They may be fulfilling those duties from their own offices or from other command offices associated with the management of the particular incident. The executive directors of health authorities, too, may be seeking to control the area of operations.

The phrasing would appear to extend the provision to all such persons; it may be the intention to capture all officers and persons associated with the management of an operation. Although they may be not directly concerned—in other words, not specifically on the ground—they would be involved in

“activities carried on in preparation for, or directly in support of, such operations”.

In other words, they would be involved in directing the operation or acting in response to the activities that are taking place.

Confusion has arisen as to whether that is the intention. If it is, the Committee needs to know. If not, the language needs to be refined in order to narrow its scope. We need to make it clear that, in those circumstances, officers fulfilling other duties who would appear to be caught within the ambit of the provision are not so caught. I look forward to hearing whether I am wrong in my assumption.

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

Committee members are suspicious and concerned this morning about what the Government intend; I thought that we were making our objectives clear. I am grateful to the hon. Member for East  Dunbartonshire (Jo Swinson) for thanking me for writing to the Committee about the details of the Government amendments. I am delighted that she is happy on the harbour ports issue. It is not our intention to confuse, mislead or widen the exemptions too far. We thought that there was consistency in our approach. The scrutiny Committee had expressed concern about a lack of clarity in the Bill, and we wanted to be clear about who we were including and excluding.

The hon. Member for Beaconsfield asked whether the measure could apply in theory to organisations other than the Prison Service or whether it applied to the Prison Service only. In theory, perhaps it does not and it could be widened out, but the key to all this is the issue of countering serious disorder and the duties in respect of that. I cannot think of many organisations that would be in a similar position to that of the Prison Service. We can think of what we said earlier about the police and the armed forces. I suppose that the immigration authorities in immigration centres could be included, because there have been disturbances and problems there.

We think that there is consistency in what weare trying to achieve. The words “dealing with” in subsection (2) restrict the clause. It is not enough for a public authority to have some tangential contactwith unrest and disorder; it must be involved in countering it.

Photo of Michael Fabricant Michael Fabricant Opposition Whip (Commons) 9:15 am, 26th October 2006

What the Minister is saying is helpful, but what about the example that I and my hon. Friend the Member for Beaconsfield gave last week or earlier this week? We spoke about a tangential situation. An exercise may be going on, but the harm or death occurs not in the exercise, but at the accommodation or in a route through the area where there has not been an adequate duty of care to ensure that premises or vehicles transporting people have been maintained properly.

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

I am grateful to the hon. Gentleman for raising that point. I acknowledged the examples that the hon. Member for Beaconsfield gave and I undertook to have a look at the issue to see what, if anything, could be done if it was obvious that gross negligence had occurred, yet the exemption was in place. I am alive to that concern. I will see what we can do and come back to the Committee or address it on Report if there is an opportunity to do so.

We are trying to be consistent in our approach. We thought that the Prison Service represented an extension to what we were trying to achieve. We do not want to widen the measure too far. The points about hazardous training have been well made with regard to what we want to achieve. I hope that the Committee feels reassured by my words and I ask it to support the amendment.

Amendment agreed to.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 139, in page 4, line 29, leave out paragraph (c).

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following amendments: No. 128, in page 4, line 37, leave out subsection (3).

No. 129, in page 4, line 41, leave out from beginning to end of line 4 on page 5.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

This, too, is a probing amendment, along the lines of that tabled in respect of the military. It is in the nature of the armed forces that one of their primary tasks, although the Government are unlikely to admit this publicly, is killing people, because the armed forces use force to achieve objectives. Therefore, the training carries inherent hazards. We are now dealing with the police and law enforcement. Clause 6 removes any duty of care owed by a police force, first for operations in respect of terrorism, civil unrest or serious public disorder. As I said earlier, being public authorities, they have a double protection, because clause 4 removes any duty to other people and clause 6 removes any duty to their employees or in respect of premises. This is a substantial area of protection.

I still have an anxiety—perhaps I registered it on Tuesday in respect of the armed forces—about why the Government feel, when it comes to training of a hazardous nature, that in order to maintain the effectiveness of the police in operations in relation to terrorism, civil unrest or serious public disorder, the duty of care that any other corporate organisation in this country will be subject to should be removed.

The Minister has said on a number of occasions in Committee that the threshold for bringing a prosecution under the Bill will be high. There will be many instances of death occurring in the workplace, to somebody who is affected by workplace activity or to somebody who might have been provided with a defective service. To give an example, death may occur to somebody who goes on an outward bound training course run by a corporate entity. Although death may result from an accident, and even though there might be a degree of culpability, the Government’s view is that it is most unlikely that a prosecution will follow.

In such circumstances, there is already a considerable safeguard—I said this on Tuesday, but I repeat it because it is important—for those who are carrying out training of a hazardous nature. It seems to me that as long as they can show that the training was reasonably necessary for the proper training of the police or the military, and as long as they can show that it was properly planned, they will be protected from any possibility of prosecution if something goes horribly wrong and somebody is killed. I know that the Minister’s fear is that without the training exemption people will feel fettered in the way in which they carry out training, but the reverse is also true. If we do not have such a possible sanction for examples of gross negligence, there will be an inclination to sloppiness because people will take the view that there is not a serious sanction if something goes horribly wrong.

I realise that this is a difficult subject, but as we move away from the armed forces, and perhaps away from the special forces on a pinnacle of their own, and through the other activities, I am slightly anxious about giving the police protection for gross incompetence in their training. I appreciate that there may well be an investigation by the Health and Safety Executive, a  censure, or internal inquiries, and that those will all contribute to ensuring that such accidents do not happen again, but I am sure that the Minister is conscious that the danger is that when such incidents occur in the future and there is a suggestion of really gross incompetence, which occasionally happens in human affairs, when it is announced on the radio or television that no prosecution for corporate manslaughter will be possible because the police are exempt, the consequence will be public disquiet, which is the very thing that the Bill has been introduced to try to deal with.

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

The hon. Gentleman makes a point developing his argument, as I would expect him to do, but does he accept that the context is that we are removing Crown immunity, that there are ways other than a charge of corporate manslaughter—including judicial review or public inquiry—by which the police and other authorities can be investigated, and that there is a range of sanctions and efforts that can be made to right a wrong?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Yes, the Minister is quite right. We are removing Crown immunity, and one of the consequences of that removal is that if in future the sorts of things that I have described happen and people are unhappy about that, pressure will no doubt build on Government to start revising the categories of the exemptions that they have created. On the one hand, the Government have said that Crown immunity will go—the public appreciate that, because historically it has been regarded as a way in which the Government avoid censure for serious mistakes made at management level within the system—but, on the other hand, they have put in a complex panoply of exemptions to protect those areas that they think are particularly sensitive. There is nothing wrong in that—it is a perfectly reasonable way to proceed—and, as I said, the one great argument in the Minister’s favour is that, having established the principle, if in future the detail appears to be wanting, there will no doubt be a Corporate Manslaughter and Corporate Homicide Act (Amendment) Bill. I envisage Members of Parliament, some of whom might be members of this Committee, introducing such legislation in private Member’s Bills. I see the hon. Member for Eccles (Ian Stewart) smiling. I think that I understand the direction in which he is going.

Yes, we have established the principle. However, given that the Government are asking this Committee to consider the detail, we need to look at the issues individually. I put a slightly bigger question mark over police training than over military training, so am simply flagging up the matter. That said, and given that the Minister will be able to respond more fully in a moment, I repeat that this is a probing amendment.

Photo of Jo Swinson Jo Swinson Shadow Secretary of State for Scotland, Liberal Democrat Spokesperson (Scotland)

I welcome this opportunity to speak to amendments Nos. 128 and 129. Amendment No. 128 would remove subsection (3), and amendment No. 129 would remove paragraphs (a), (b) and (c) from subsection (4) but leave the definition of public authority.

We have tabled the amendments because, in our view, subsections (3) and (4) create a blanket exemption for the police. The Minister said that the Committee was  being somewhat suspicious, and perhaps I am guilty of being suspicious, but the Government must make the case for such an exemption when other organisations and companies will have to comply with the legislation. A good case must be made for an organisation such as the police to be exempt.

If the amendments are not accepted, I fear that the police or by other public bodies acting in a policing or law enforcement capacity will be exempt from the application of the legislation in respect of all but the very worst mistakes. Surely, if the police cause a death that could reasonably have been prevented, they should not be above the law. The Minister will say that there are other accountability structures, but, as my hon. Friend the Member for Kingston and Surbiton (Mr. Davey) said in a previous sitting, they are not always adequate in holding the police or other bodies to account.

I also want to ask the Minister’s opinion on an example which I am sure has been put to all members of the Committee by Liberty. It may not be the Home Office’s favourite organisation, but it raises an interesting point. Imagine a police force that knowingly and consistently ignores guidance that its officers should be trained in the use of restraining techniques—it is widely known that such techniques can kill if they are not used properly. To prevent a suspected shoplifter from running away, an officer uses a dangerous technique to restrain him and kills him. If the officer has received no training, he could not be held responsible for the death, but as a result of the exemption, it seems that there would be no possibility of prosecuting the police for failing to give such training.

What is the Minister’s view on that case, and how will the police be covered by the legislation? It seems that there is a huge exemption for them. I would like him to outline the circumstances in which the police could be prosecuted under the legislation if it is not amended.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department 9:30 am, 26th October 2006

I thank hon. Members for the spirit in which they have proposed their amendments. I listened carefully to their views on whether and which policing and law enforcement operations should be covered by the offence. I want to explain why the definition of law enforcement activities excludes policing and law enforcement activities in general, and custody in particular, but includes immigration enforcement. Of course, as I explained earlier, all of that is in the context of extending the law to the police and the Crown.

As hon. Members have said, amendments Nos. 128 and 129 would remove subsection (3), which exempts police forces and other public authorities from the relevant duties of care in relation to policing or law enforcement activities, other than duties that are owed as employers or occupiers, as we discussed earlier.

The police do of course have a general duty in relation to their policing operations to protect the public from unlawful behaviour. However, that duty is owed to the public at large and is not by itself a basis for holding the police legally to account. The activities in which the police engage are influenced by considerations wider than the immediate circumstances of the event, such as the deployment of resources and the prioritisation of incidents.

As a public body charged with public duties, the police are in a position quite unlike a private security firm. The differences between the two types of body warrant a different approach in relation to the offence. Unlike a private security firm, a police force cannot turn down a request for protection and find itself entirely without responsibility. A private security firm would not be held responsible if it refused a job because of a lack of resources and the client was subsequently attacked. Similarly, a private security firm should turn down a job if it does not have the appropriate resources. No one would consider taking legal action against a private firm for refusing that job, but the police provide services to all members of the public, and those whom the police have been unable to aid may wish to take legal action.

The police do not have infinite resources, despite the Government’s massive investment in policing. Questions about how the police carry out their activities will ultimately involve issues of public policy—how to prioritise their resources between different operational demands, and how to balance the protection of potential victims with risks to suspects, members of the public or others caught up in an incident.

We do not think that the best way to secure accountability for the way in which the police organise and manage their activities is to subject them to the criminal offence set out in the Bill. Decisions about police resourcing, operational prioritisation or the best way to carry out particular operations should not be unduly fettered by concerns about possible future legal proceedings. Such concerns could result in a shifting of priorities to crimes where injury might occur, no matter how slight the injury or how small the risk of it. For example, we would not want the police to divert resources from, say, investigating and attending burglaries to attending every incident of a threat to kill, no matter how unlikely the threat is to be realised. In 2005-06, the police recorded almost 19,000 offences of threats to kill or conspiracy to murder.

The difficulties that I have outlined have already been recognised by the civil courts. The courts have been slow to find that the police owe duties of care in respect of their operational activities.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am sorry to interrupt the Minister’s flow, but I hope that in discussing amendmentsNos. 128 and 129 he can also deal with the issue thatI flagged up, which is particularly relevant. Why is clause 6(3), for example, necessary at all, in the light of clause 4(2)? It seems that clause 4(2) already covers the exercise of public functions—I think that is what the Minister is now talking about—but that exemption is spelled out again in clause 6(3). If the one does not completely overlap the other, where are the examples of why clause 6(3) is needed, in the light of the existence of clause 4(2)?

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

I understand where the hon. Gentleman is coming from. I shall continue my speech and see whether the answer unfolds. If it does not, I am sure that there will an opportunity to return to the subject.

We want the police to be clear about the offence. Taking a cautious approach is appropriate at this stage. The scrutiny report recognised the potential for the police to become risk averse if their operations came within the scope of the offence. The report suggested that education could combat that, but we do not agree that it would be sufficient in the context of extending the law of corporate manslaughter to the police for the first time, nor practical in such a complex area. There need to be clear lines to delineate where the offence does and does not apply.

Society has a right to expect the police to protect it, but where violent offenders kill, should the police be held to account for an offence of homicide for failing to prevent the killing? Where a prisoner commits suicide or is killed by a fellow inmate, is the Prison Service’s failure to prevent the death an act of homicide by the Prison Service? The label of manslaughter in such cases does not seem to be apt.

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

I am not sure whether this has been mentioned in previous debates, particularly on Thursday afternoon when I was not present, but the case of Jean Charles de Menezes seems particularly relevant. Is the Minister clear that the exemption sought in the clause would mean that the Metropolitan Police Authority could not be charged with manslaughter in that case?

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

It is difficult for me to respond to that point because, as the hon. Gentleman knows, the case is sub judice and I cannot discuss it individually. However, the issues that are raised may become clearer if he allows me to continue.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I appreciate that the Minister cannot comment on an individual case, but it must be clear that, in the light of the existence of clause 4(2) and of the entirety of clause (6), those responsible for any action by the police in carrying out an anti-terrorist operation that leads to the death of an individual that is not justified under law on the grounds of self-defence or the protection of the public, could not be prosecuted, no matter how culpable the management structure of the police service might have been. That has given rise to quite a lot of adverse comment on the structure of the Bill and without considering the particular example, we can be satisfied that it is quite clear that prosecution could not happen.

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

The hon. Gentleman comes my aid yet again, and I thank him.

Tackling deaths in custody is a key priority for the Government. We have several initiatives aimed at making custody safer, including suicide prevention co-ordinators in all prisons, the development of new safer prison design that will include safer cells, and the investment of £26 million allowing physical improvements to be made at six pilot sites. There is no question of exempting the Prison Service from the offence: it will be covered in important respects. It is also imperative that where individuals have acted unlawfully, they should be accountable under the law, and that will continue.

We are dealing with a wider point: accountability for the organisation and the management of detention. Detention goes to the heart of the exercise of state power over individuals in a complex environment. Prisoners are often vulnerable people and there is a complex mesh of policy and operational constraints, which has to balance the protection of the public and staff with the needs of individuals. To take a topical example, where there are constraints on the availability of places for prisoners, difficult decisions need to be made on how prisoners will be detained, such as whether to use police custody, the appropriateness of doubling up and the early release of certain categories of prisoner. Those questions go to the heart of balancing the safety of the wider community with the safety of prisoners and demonstrate the close link between the way in which detention is carried out in any particular prison and broader issues about detention and criminal justice in general. We think that those matters call for wider accountability than is achieved through the criminal law, namely accountability through Parliament. I have already spoken about immigration centres and why we want them to move forward.

To return to the point that the hon. Member for Beaconsfield made about whether we need clause 6(3) because these matters are covered in clause 4(2), we believe that it is a matter of clarity. The scrutiny Committee considered that the term “exclusively public function” in clause 4(2) was not clear enough and wanted us to respond by making the provision explicit. That is what we are trying to achieve. The motivation was to be clearer and more specific.

Photo of Michael Fabricant Michael Fabricant Opposition Whip (Commons)

I ask the Minister to imagine a Venn diagram. In that diagram, what activities would be covered by clause 4 that were not covered by clause 6 and vice versa or does he imagine the two circles of that Venn diagram would overlap completely and contiguously?

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

My imagination is ranging quite wide this morning. Although I have tried to explain the different aspects, the hon. Gentleman is clearly not satisfied. If it will help him, we will try to spell out in written form why we have done what we have done.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I appreciate the point that the Minister is making. He has helped to clarify that the Government have taken a belt-and-braces approach because of the anxiety about clause 4(2) expressed during the pre-legislative scrutiny process. That said, there must have been some discussion in the Home Office on whether there is really an issue here. Will the Minister check whether during those internal discussions any examples were thrown up of clause 6 extending wider than clause 4 in respect of the police or any other public authority that is covered by clause 6, and write to the Committee with the results of his inquiries?

Photo of Michael Fabricant Michael Fabricant Opposition Whip (Commons)

With a helpful Venn diagram. [Laughter.]

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

That is probably the best way to assure Committee members that they need not be suspicious of our motivations. I shall try to provide further clarification.

The hon. Member for Beaconsfield returns us to our debates on training. We have had detailed discussions on that in relation to the armed forces, and, for the reasons given, we believe that the same argument applies to the police when they are carrying out hazardous training in relation to tackling terrorism, civil unrest or serious disorder. With those explanations and the promise of further clarity being provided in writing, I hope that hon. Members will not press their amendments.

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

The Minister promised a little more explanation of how the measures might apply to a case similar to that of Jean Charles de Menezes. I understand why the Minister does not want to comment on that case, but as the hon. Member for Beaconsfield said, there are issues to consider that are germane to that case or similar cases that we can imagine. Given that the de Menezes case is in hon. Members’ minds, we want some light to be shed on what the Government are trying to achieve.

In a similar hypothetical case, it might be difficult to pin blame on individual officers, particularly if they were properly trained and acting under instructions. Indeed, for the reasons outlined by the Joint Committee, we probably would not want to pin too much blame on individual officers, because we do not want a risk-averse culture to develop, particularly when dealing with a threat as serious as terrorism. We need a balance between ensuring that the organisation behaves professionally and providing as many safeguards, as much training for its members and as much clarity as possible. It is reasonable for members of the public to demand that the senior managers of the police service produce those sorts of processes and make sure that the organisation operates in a way that will not lead to incidents of gross negligence.

As the Bill stands, if a manager in the police service or of any authority were found to be grossly negligent in the way in which operations were undertaken and organised, a prosecution could go forward only under the Health and Safety at Work, etc. Act 1974. That is what is happening in the de Menezes case. I am concerned by that. If an organisation has been grossly negligent and that has resulted in someone’s death, the offence thus committed is more serious than an offence under the 1974 Act.

Moreover, Liberty suggests that the Government might not be meeting their obligations under the European convention on human rights, particularly underarticle 2. In Turkey, there was a case—the Öneryildiz case, of which I am sure the Minister is aware—in which the offence that was prosecuted, of which the authorities were found guilty, was deemed not to reflect the seriousness of the conduct of the judicial authorities. There is a danger that the Government will follow that line with the exemption in clause 6.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 9:45 am, 26th October 2006

The Minister says that Crown immunity is being removed in blanket form, but the irony is that it is already possible to prosecute police under the 1974 Act, so to that extent Crown immunity is long  gone. I am not sure when it went or whether it was ever present in respect of the activities of a police force. It is therefore odd that this measure is a fetter on extending the law beyond the scope of the 1974 Act, when that is precisely what the Government said they intended to do and was the rationale behind the Bill.

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

The hon. Gentleman is absolutely correct, so we have to question the Government’s motives. They may feel that the police service—let us remember that we are thinking of it as an organisation, not of individual police officers—could be brought into disrepute if a case of corporate manslaughter was brought against it and that that might undermine public trust in the police service. That is a serious issue and worth debating, but we have not heard those arguments yet today. If it is the Government’s defence, we need to understand and scrutinise it. As the hon. Member for Beaconsfield made clear, we need to understand why, if the police can be prosecuted under the 1974 Act, the Bill does not subject them to the further extension that all other organisations are having to undergo. There may be an argument in that respect, but we have not heard it yet.

All the Minister’s body language suggests that he is ready for this point. I would expect nothing less from him, but I hope that he will deal with the specific point about the European convention, because if the Committee is to give the green light to legislation that will not uphold this country’s obligations, we need to worry about that. I believe that the Joint Committee on Human Rights expressed concern on that point, so I hope that the Minister can give us assurances.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

As mine is the lead amendment, it falls to me to say whether I intend to press it to a vote. For reasons that I gave earlier, I do not wish to do so on the question of hazardous training, but it is right to say that we have had an interesting debate on wider issues surrounding the entirety of clause 6. I want to reflect on what the Minister has said with regard to whether we could bring in further improvements on Report.

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

Mr. Benton, please excuse my ignorance of procedure, but I believe that the hon. Gentleman is about to withdraw his amendment and I would like to answer quickly the point that has been made by the hon. Member for Kingston and Surbiton. We do not agree that the Turkish case cited means that our new offence is incompatible with the convention on human rights. We have responded to the Joint Committee and are engaged in correspondence relating to that. I take the point about the police becoming risk averse and how the balance needs to be struck. I hope that the hon. Member for Kingston and Surbiton understands our reasons for acting as we have done.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am sorry, Mr. Benton. Had I known that the Minister wanted another bite of the cherry, I would have given him more time, but given the remarks that I have made and the fact that I do not wish to detain the Committee further on this point, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 113, in clause 6, page 4, line 31, leave out ‘a police force’ and insert

‘officers or employees of the public authority’.

No. 114, in clause 6, page 4, line 35, leave out ‘public’.

No. 115, in clause 6, page 4, line 35, leave out ‘the police’ and insert

‘officers or employees of the public authority in question’.

No. 116, in clause 6, page 4, line 37, leave out ‘police force or other’.

No. 117, in clause 6, page 4, line 44, after ‘of’ insert ‘the same or’.

No. 118, in clause 6, page 4, line 45, at end insert ‘or

‘( ) activities carried on in the exercise of functions of constables employed by a public authority;’.—[Mr. Sutcliffe.]

Question proposed, That the clause, as amended, stand part of the Bill.

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

I rise to give the Minister a chance to give a proper reply to the previous debate, and to respond to the point that he made in his intervention. He said that he had replied to the Joint Committee. I do not know whether that reply has been made available to members of this Committee, but certainly I have not seen it. I am sorry if I am at fault in that regard, Mr. Benton, but understanding the Government’s thinking and their response to the Joint Committee’s criticism is critical. If the reply is not available now, I hope that it will be made available well before Report.

If the Government have produced a response, I hope that the Minister will share the thrust of it with us, because it is germane. Members of the Committee have been given advice by respected lawyers and by a parliamentary Committee that the legislation might not comply with the European convention on human rights. That is clearly a serious concern.

In his intervention on the hon. Member for Beaconsfield, the Minister also did not explain why the police should have a special exemption. Given that they are able to be prosecuted under the Health and Safety at Work, etc. Act 1974, why is prosecution for the new offence not to be possible? We need to tease out the Home Office’s thinking on this matter.

Photo of Michael Fabricant Michael Fabricant Opposition Whip (Commons)

I realise that the exemption is a sensitive area, and I am unsure whether the example that I shall give will be helpful or not. A friend of mine is an armed police officer. He previously served in Northern Ireland, where under the rules of engagement a British soldier could not shoot anyone unless his own life was at risk. He told me about a kid who threw a baked beans can at him—such incidents occurred. He could not tell whether it was a baked beans can or a hand grenade, but he had to decide whether or not to shoot the kid before he threw it.

My friend told me something else in relation to his role as an armed police officer. He is concerned that if the provision is too tight, he would not be given the type of training necessary for him to make those snap decisions. They are life-and-death decisions, not only for a potentially innocent victim but for him too. The Committee should bear it in mind that there is a huge  burden on armed police officers in making a decision about whether to use their weapon to protect themselves or others, given that there is always the chance that they might make a mistake in that split-second. Such decisions are not easy.

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

I am grateful to the hon. Gentleman, because in that case of his friend he puts the two issues starkly. I do not think that anyone in this Committee or in the House would want to make the incredibly difficult job of our security services, be they the military or the police, any more difficult. They put their lives on the line for us, and we must respect that in the way we draw the legislative framework around their actions. The graphic example of the baked beans tin makes the point clearly.

However, the hon. Gentleman went on to say that his friend was concerned that he might not get the training, depending on how tightly the provision was drawn. That is the point about the organisation: we are not talking about an offence for an individual, but one for the organisation. If the organisation is not providing the training to give as good a chance as possible for the individual officer to be able to make a snap judgment about situations such as the one involving the baked beans tin or one where a gentleman is walking the streets of London in a coat that looks padded and that has nothing to do with his waist size—

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

I shall ignore that comment from a sedentary position, tempting though it is to develop it; those in glass houses should not throw stones.

The training for those officers must be of the highest quality. We must give those men and women who put their lives on the line the best possible chance to make those decisions. Whether or not they are individually at fault, they have to live with the consequences and the images of their actions. I guess that the officers who were involved in the Jean Charles de Menezes case might have nightmares, and might be traumatised by what they have been involved in. That is why it is important to give the training to which the hon. Gentleman referred: to help those individuals deal with the stressful and difficult situations that we put them in. The whole point of the new offence is whether it should apply to an organisation to make sure that it does its job properly and has a duty of care to its employees so that they can carry out their difficult task for the members of the public they are there to protect.

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

I am grateful to the hon. Member for Kingston and Surbiton for initiating the clause stand part debate and for giving me the opportunity to respond more fully. My only other chance would have been on an in intervention, which would have been far more rushed that I would have wished. I am grateful to the hon. Member for Lichfield for giving the example of his friend. It took my mind back to one of my constituents, Private Lee Clegg. He was a serving soldier in Northern Ireland who was convicted of murder after firing a rapid-fire automatic weapon and it was the final four bullets that got him convicted. I cannot remember the exact phrase used in the judgment, but it referred to his  overuse of the weapon. That conviction was eventually quashed. There was a fine line in the decision that had to be made about the danger.

It is in that context that I have concerns about what we are trying to achieve. Yes, I am proud that we are removing Crown immunity. That is right and proper and we have talked about how we are doing that. We have to be very cautious with the police. It is this point about institutionalising risk aversion. Are we creating a bigger danger for the public by not carrying forward what the police should do on the basis that they may be in a position where they have to consider the possible consequences? We are trying to draw a fine line between the proactive errors and the failures.

There is an example in the civil courts where the police were found to have breached a duty of care and were sued for damages for using a gas canister without sufficient fire-fighting equipment to control any fire caused. To put this in context, the police were using the gas canister to smoke out a dangerous psychopath. The choice for the police of whether to act or not may well be a case of Hobson’s choice. They can act and risk danger or not act and still risk danger. On that basis, it is important that we are careful how we respond.

The hon. Member for Kingston and Surbiton may say that we are in breach of human rights legislation in the Turkish example. We do not believe that we are in breach of the European convention and the discussion with the Joint Committee on Human Rights has taken place. The correspondence is there and I am happy to ensure that members of the Committee get copies of it. The hon. Gentleman will know that lawyers disagree with each other about interpretations.

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central

The debate on the various amendments and on clause stand part brings out one point which I hope my hon. Friend will look at quite seriously. There must be something of a paradox. I know that we do not want to go into the Menezes case here as it is sub judice, but it would be rather odd if we ended up with a law on corporate manslaughter which did not cover the police, but where the Health and Safety at Work Act still covered them. That would be an odd conjunction of law. Even odder would be the situation in terms of risk-averseness where the individual serving officer, the officer who has to make that split second decision about the baked beans can, could be prosecuted if found to be in gross breach of duty under the existing law of manslaughter, but the lousy management decisions of his superiors would not be subject to the same scrutiny. That would be a very unfortunate consequence.

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

I understand the Committee’s strength of feeling on this issue and the lack of clarity about what we are trying to achieve. We are trying to be sensitive about this but I am happy to take on board my hon. Friend’s suggestion. I will take this away and look further at it.

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

The Minister, rightly, talked about risk aversion. As the Select Committee said, we do not want a risk-averse culture. The flip side to that is that we want a risk-management culture too. There is a fine line between risk aversion and professional management of risk. Many private companies spend an awful lot of  money and time—quite rightly because they are legally obliged to do so—to ensure that they manage their risk properly. It is justifiable for us to ask public services to ensure that they manage their risk, too.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department 10:00 am, 26th October 2006

I know that the hon. Gentleman’s intention is not to undermine the excellent work of those services. They consider a range of situations, and they try most professionally, either with the administration and the management of those systems, or with individual delivery, to meet the requirements of protecting the public and administering their services. He will accept the differences that I described earlier in relation to private security firms and the police service, and I am confident about the way in which we have set out the exemption provision. We are achieving what hon. Members want, but I am prepared to reflect on what has been said.

The hon. Member for Beaconsfield has already said that he will return to the issue, and I may be able to provide further clarity on Report. It might be worth trying to work on a better solution to achieve the results that the Committee wants. We have had the opportunity to tease out the issues even further in the clause stand part debate, but that does not mean that people will not support the clause. I am grateful for having had the opportunity to debate it, and I hope that it will stand part of the Bill.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I apologise for rising at what may appear to be the end of the debate, but the hon. Member for Manchester, Central (Tony Lloyd) made a key point. We are creating a situation in which the individual who pulls the trigger, for example, risks being prosecuted for manslaughter, but the organisation does not. It is a bizarre state of affairs. If one were to ask police officers who have to carry out firearms duties or make split-second decisions, about their attitude towards the possibility of prosecution for manslaughter, one would hear responses about the psychological difficulties and pressures that the situation places upon them, about the burden upon them while they are under investigation and suspended from work, and about numerous instances—regularly cited in the press—in which the situation is over-onerous.

Indeed, in the past 10 days, there was an interesting report by an American psychologist who came to the House. He explained how with split-second decisions, when a police officer decides that they may have to shoot somebody because they pose a threat, the officer may be doing something rather different when the shot is fired, compared with what they were doing when they took the decision to shoot. There is important evidence about that, and it has a direct bearing on several controversial cases.

As we know, in many cases the person taking the difficult decision will have had instructions, training and management that creates the ethos in which decisions are made. They are a legitimate area for public discussion. However, even if there is clear evidence that management decisions have been poorly carried out, they will not lead the organisation to be prosecuted for corporate manslaughter.

I have spoken to officers, and I cannot help thinking that if an officer was asked, “Are you worried about the police force in which you are a firearms officer being prosecuted for corporate manslaughter if the management structures are considered seriously flawed in relation to a shooting?”, they would not lose a huge amount of sleep over it. I accept that higher up the chain, those officers who take management decisions might see their careers jeopardised, and we cannot ignore that issue because they have to make difficult decisions, too; however, the situation is odd.

We shall return to that point during our debate on clause 7 and the national health service, because I have tabled some amendments that I want to consider in the same context. The person up front could face the full rigour of the law, including the risk of imprisonment. In the public scrutiny of systems failures within the organisation, however, we are letting people completely off the hook. Most parliamentarians would consider the consequential penalties benign, although the risk is of inhibiting decision making all together.

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

I do not know whether the hon. Gentleman, or the Minister, has had the chance to speak to the Police Federation. I should have thought that it would be worried that the legal duties could be more onerous on the individual officer on the front line than on the senior management of the force.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman makes a valid point. This matter causes me some disquiet, but curiously that is separate from any problems that I had in respect of the military, where different issues arise. We are dealing with civil society, from which the military is rather removed. In civil society, police officers and organisations have the same duties and responsibilities as other citizens, sometimes with special powers, but nevertheless, the idea is of the citizen in uniform. This exemption category is different even from the ones in respect of a Department, where Crown immunity issues are involved, which is perhaps why I worry more about it than clause 4(2), even though that subsection impinges on this matter, too.

I question whether this is the correct way forward. I fear that if we do not get it right, we will end up with constant criticism. As I said earlier, we will return with an amendment to the Act in the future, because people will feel that it is unsatisfactory. There is some concern about clause 6, so perhaps the Minister will take away hon. Members’ comments and see if anything else can be done on Report. I accept that this is a difficult matter.

Photo of Ian Stewart Ian Stewart Labour, Eccles

Can the hon. Gentleman help us by suggesting, even at this point, a direction of travel and some possible solutions?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman gives me a hard task. The difficulty is that we may be taking the police out of the operation of clause 6(3). Let us leave subsections (1) and (2) alone for the moment, because they deal with a slightly different issue relating to terrorism and public disorder where different considerations apply.

We want to get rid of subsection (3) and, by implication, we would have to remove the police from the scope of clause 4(2), although we would have to consider what the impact of that subsection might be on the police in respect of an exclusively public function. My head is still in a bit of a cloud about that, despite the Minister’s comments about the interrelationship, but if he is right, the police would have to be taken out of clause 4(2). If that were so, they would be liable to prosecution for ordinary policing decisions outside

“terrorism, civil unrest...public disorder...attack...threat of attack or violent resistance”, and for everything else they would be covered by the Bill.

It is worth mentioning that the “threat of attack” in clause 6(2) is so wide that it is a least arguable that it covers the Menezes case and the case of the chair leg in the Hackney street.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Indeed. I accept that this is a difficult area. All I can say to the hon. Gentleman is that I do not have an immediate answer. However, the creative genius of the Home Office drafters ought to be up to thinking of some middle way. I can certainly try to think of a way forward, but it may be an either/or situation, in which case it is a difficult public policy issue. However, if the Minister has any creative solutions I should be happy to hear them.

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

We have had an interesting debate. It showed the quality of our parliamentary scrutiny. I have reflected on what has been said and the spirit in which it was said. In answer to my hon. Friend the Member for Manchester, Central, I said that I would go away and think about it because I was erring towards his point of view. The more I think about it, however, the more I think that the hon. Member for Beaconsfield was right about subsections (1) and (2) being needed because of the current climate and the threat that we face, although he said that they might be too wide and too much of a catch-all.

I turn to the military, which is separate but similar, and to the Clegg case. Clegg stood in one position, firing shots in an arc, and it was the shots at the end of that arc that ended in him being convicted for murder. He was a highly trained soldier and had served for a number of years. The organisation—the military—was not threatened with prosecution, only the individual. The hon. Member for Beaconsfield said that the experts spoke of the crucial time in people’s minds in relation to the firing of those shots, but I think it will be difficult to find an innovative way forward. As the debate continues, I am more inclined to say that we are right. Because of our discussions and thought patterns, we will go there—we will see what can be done—but it will be difficult to find a solution.

Photo of Ian Stewart Ian Stewart Labour, Eccles

I caution my hon. Friend against concentrating on the issue of a person’s mentation in making a judgment and ask him to concentrate more on whether there is a wider responsibility. That seems to be the crux of the debate, and I would like my hon. Friend to go away and think about it.

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

My hon. Friend’s suggestion was better than his usual warning. I am thinking about it. I am wondering what the organisation can do to assist the individual in those circumstances. In answer to the hon. Member for Beaconsfield, if the members of the Police Federation go to the Association of Chief Police Officers to express their concern, will it make the police risk-averse—will it institutionalise that risk-aversion? I am concerned about that. It is on that that we need to strike a balance.

We have had a useful discussion this morning, but we all need to go away and think about the implications of what has been said. For the purposes of procedure, I ask that clause 6 stand part of the Bill.

Question put and agreed to.

Clause 6, as amended, ordered to stand part of the Bill.