Clause 7

Corporate Manslaughter and Corporate Homicide Bill – in a Public Bill Committee at 10:00 am on 26th October 2006.

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Emergency services

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

I beg to move amendment No. 119, in page 5, line 9, leave out

‘to which this section applies’ and insert ‘within subsection (2)’.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss Government amendments Nos. 120 to 122.

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

The purpose of clause 7 is to ensure that a narrow range of organisations is not liable to prosecution for corporate manslaughter in respect of the actions they take in response to emergency circumstances. Matters such as the timeliness of the response to an emergency, the level of response and the effectiveness of the way in which the emergency is tackled are excluded from the ambit of the offence.

It is worth emphasising that the exemption in subsection (1) applies only to the way in which those organisations respond to emergency circumstances, as defined in the Bill. Activities that do not form part of the response, such as maintaining vehicles or training staff, are not covered. If a vehicle driven at speed to an emergency crashed because its brakes had not been adequately maintained, it would not be covered by the exemption. However, an allegation that a fire authority had not provided sufficient cover at an incident would be exempt. The exemption also does not override the duties of care owed by an organisation as an employer or occupier, as previously discussed. Thus, an authority otherwise benefiting from the exemption would still be under a duty to provide safe systems of work for its employees. For example, it would be required to provide adequate training for employees who were required to drive at speed.

In most circumstances, the organisations listed would not owe a duty of care in terms of their responses to emergencies, but there are some situations in which that would be open to question. That could lead to uncertainty in the emergency services about where their criminal liabilities lie. We therefore think it  right that none of the emergency services should face a potential prosecution for corporate manslaughter in respect of their responses to emergency situations that they are attempting to alleviate and which are not of their own making.

The purpose of the new offence is to tackle organisations that create risks to the safety of others, but do not manage those risks properly. Holding public authorities responsible for their efforts to assist those in danger extends the concept of manslaughter too far. Creating such liability might encourage a culture of undue risk aversion in the emergency services or have a distorting effect on operational priorities. Again, that would not be in the public interest.

Amendment No. 121 is intended to tighten the drafting of subsection (2)(d), the purpose of which is to ensure that organisations that stand in for a fire and rescue authority or are under an obligation to provide a fire and rescue service should benefit from the same exemption as those authorities. Fire and rescue authorities and their equivalent in Northern Ireland are exempted from the offence by paragraphs (a), (b) and (c). Their functions include fighting fires, rescuing people from road traffic accidents and dealing with the aftermath of such accidents. They also respond to other kinds of emergency, such as toxic spillages, floods and terrorist incidents.

Fire and rescue authorities are not the only organisations that perform such functions, however. The armed forces may be called upon to deal with emergencies, which explains the exemption in subsection (2)(i). Airports are also obliged to provide firefighting services under the terms of aerodrome licences. Teams of firefighters are co-ordinated by the Maritime and Coastguard Agency to fight fires at sea, while fire and rescue authorities have a statutory power to enter into arrangements for their functions to be discharged by other organisations. There is a wider public dimension to all those circumstances that should carry an exemption.

The current drafting goes wider than that, however, by extending the exemption to all organisations that employ firefighters, so, for example, a private company offering firefighting services to the film industry would benefit from that. We do not think that that is right. If a company offers such a service commercially, why should it be exempt from liability for performing it negligently? The essence of the exemption is to exclude those bodies that fill a statutory or other public role in responding to an emergency and which are therefore subject to wider considerations involving the public interest in meeting the demands on them.

We therefore propose to narrow the exemption. The purpose of proposed paragraph (d)(i), which would be inserted by amendment 121, is to ensure that the exemption covers all organisations that make arrangements with fire and rescue authorities to carry out their functions. That might include commercial firefighting organisations, but such organisations will be covered only where they are, in effect, standing in the shoes of a statutory body, not otherwise. Proposed sub-paragraph (ii) deals with other organisations that provide firefighting services on a non-commercial basis. That means that organisations such as those that provide firefighting services at airports, as well as  others in a similar position, would be exempt in terms of their responses to emergency circumstances.

The first purpose of amendment No. 122 is to ensure that organisations that perform ad hoc rescues at sea benefit from the exemption. Subsection (2)(h) provides an exemption for organisations that provide a rescue service, such as Her Majesty’s coastguard, the Royal National Lifeboat Institution and Mountain Rescue. However, subsection (2)(h) does not cover organisations that are not in the business of providing rescues, but which may be called upon to provide rescue at sea.

Vessels at sea are under specific duties to go to the aid of other vessels in distress. The requirement to assist persons in distress at sea is found in regulation 33 of chapter V of the international convention for the safety of life at sea, which is enshrined in UK legislation. Adherence to those duties is an integral part of maritime safety, and we would not want the Bill to undermine that. We therefore think it appropriate for the exemption to extend to vessels carrying out rescues in those circumstances. Amendment No. 22 provides that cover.

The second purpose of amendment No. 122 is to extend the exemption to other kinds of responses to maritime emergencies. Under the Merchant Shipping Act 1995, the Secretary of State or his representative can take action, or issue legally binding directions on others to take action, in response to emergency situations. For example, in the event of an accident to a ship carrying hazardous substances, an order could be issued to a third party to act to prevent pollution causing serious harm to the environment.

Doing that involves the difficult balancing of various interests; for example, the potential risk to life in carrying out an order will need to be balanced against the risk of not taking any action. If those making or following orders were obliged to take into account the risk of prosecution for corporate manslaughter, it is possible that decision-making in inherently risky situations would be distorted. We do not think that that would be in the public interest. Therefore, it is appropriate that such actions should benefit from the emergency services exemption, hence the second part of amendment No. 122.

Amendments Nos. 119 and 120 are technical amendments consequential on amendment No. 122. With that explanation, I hope that the Committee will support the amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 10:15 am, 26th October 2006

I hope that the Minister will forgive me if I say to him that after listening carefully to his explanation of the Government’s tweaking of clause 7, I was left thinking that it involves a slight element of contradiction. On the one hand, he reasonably said that he wanted to extend the protection of clause 7 to vessels on the high seas that, although commercially operated, have duties and obligations placed on them to render assistance. Such a vessel might carry out a rescue because it is under a duty to do so. He said that it would be wrong in such circumstances that people should feel that there is a terrible sword of Damocles hanging over their head that might fall on them if they make the wrong decisions in a risky environment. I have some sympathy with that.

However, earlier in his remarks, he said that he wanted to exclude commercial organisations that provide fire and rescue services from the scope of the Bill. Currently, they are exempt, as they are providing rescue services described as

“extinguishing fires or protecting life and property in the event of a fire”.

I am somewhat bemused by where the difference lies. I accept that they are doing it for profit. I know that historically there has been a certain aversion to profit on socialist Benches, but I thought that that had gone out in the past 100 years.

Let us take the example of a commercial organisation that provides fire services to the film industry. I use that example because I happen to have Pinewood Studios in my constituency. The pyrotechnics at Pinewood, particularly for James Bond films, are complex, and every now and again something goes wrong. The commercial organisation that provides fire services at Pinewood, or anywhere else, will face exactly the same decisions as a statutory organisation. A fire breaks out, people rush to the scene. The service may be provided commercially. In  fact, the fire and rescue services probably would not apply in the case of Pinewood, as the statutory ones are a long way away.

It is true that the commercial organisation provides services for reward—it is permanently retained and makes a profit from providing the service—but its employees are faced immediately with difficult choices that are identical to those that an ordinary fire brigade would face if they attended such a scene. What are the priorities? Should they stop the fire in building A before they stop the fire in building B? Exactly what risks do they face by rescuing people in one building and leaving the rescue of people in another building for the next half hour because they think that the first is the more urgent? What difficulties will they face if it is subsequently suggested to them that they got it wrong and that they should have gone for the other building first? Those are very real decisions, and the fact that organisations are commercial—

It being twenty-five minutes past Ten o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Two o’clock.