Clause 7

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

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Emergency services

Amendment proposed [this day]: No. 119, in page 5, line 9, leave out

‘to which this section applies’

and insert ‘within subsection (2)’.—[Mr. Sutcliffe.]

Question again proposed, That the amendment be made.

The Chairman: I remind the Committee that with this it will be convenient to discuss Government amendments Nos. 120 to 122.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I think that the last word I used before we adjourned was “commercial”. That seems to stick in my mind. I was saying that commercial organisations would be facing the same difficult life and death decisions as a statutory authority if they were providing fire protection. I had a question mark in my mind about why they should be removed from the protection that will be given to statutory bodies that carry out an identical role.

I was also conscious that the hon. Member for Kingston and Surbiton (Mr. Davey) wished to intervene, so now might be a good moment to give way to him.

Photo of Ian Stewart Ian Stewart Labour, Eccles

Can the hon. Gentleman remember what he wanted to say?

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

Fortunately, I can remember. The hon. Member for Beaconsfield (Mr. Grieve) jogged my memory when he used the word “commercial”. Will he speculate on whether the Minister thinks that commercial fire services might be less risk averse if the offence were to apply to them than fire services in the public sector? If the hon. Gentleman thinks that that is the Minister’s thinking, can he explain why?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

If an organisation was providing highly skilled services for reward, it would be dependent on its reputation. That is not to say that it might not be sloppy in the way in which it carries things out. However, it would be equally affected and might be made risk averse if it considered that a draconian sanction could be visited on it if, as a result of making a professional judgment that was subsequently called into question and one that was made under the pressure of events, it started to err on the side of caution and, as a result, failed to make the right decision.

In a funny way, I am advancing a swings and roundabouts argument. Going back to what the Minister said about statutory bodies, we could argue that no statutory body dealing with fire and rescue would ever be prosecuted under corporate manslaughter—if that were possible—if it simply made an error of judgment under the pressure of events. Such action would not amount to the gross negligence systems failure at which the Government are aiming, so why are we taking the statutory bodies out of the possible orbit of being prosecuted for corporate manslaughter? Doubtless, the hon. Gentleman will put forward some powerful arguments for giving that protection, but if it were to apply to a statutory body, I am at a loss to see why it should not also apply to a commercial body.

Picking up what the hon. Member for Kingston and Surbiton said, there is an implication either that commercial bodies do not deserve a special exemption or that they might be more cavalier in their approach and thus merit greater sanction because they could be sloppier. I should be interested if the Minister can produce evidence to suggest that a private firefighting organisation that makes a profit is likely to be any sloppier than another organisation. I have always assumed that private firefighting organisations are contracted to provide fire services at airports, particularly at aerodromes. It tends to be a highly technical role, which requires high levels of training in an environment where if the commercial organisation were to end up making a mistake, it would probably ruin its reputation and be put out of business anyway because it would never be used again.

There is actually a greater sanction on commercial organisations in such matters because if they foul up their reputation might be destroyed, whereas it is a feature of a statutory organisation that, on the whole however much it fouls up, it continues to exist because there is no possible replacement for it unless the service is privatised. I hope that the Minister will take on board my thoughts and possibly consider them outside of the Committee.

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

I support the comments of the hon. Member for Beaconsfield (Mr. Grieve). The Minister has not yet made the case either in previous debates or in relation to the amendments that extra exemptions are needed. Let us be clear: the offence created by the Bill is narrowly defined. An organisation must have acted in a grossly negligent manner so, for there to be an extra exemption, the Minister must explain why a statutory body should still be exempt, although it had acted in a grossly negligent way and the offence was so great that it could be fitted into such a narrow scope. That is a hard test for the hon. Gentleman to prove, even with the particularly sensitive and difficult case of the emergency services. It is not that I am not open to be convinced. I should like to be convinced. I am always helpful to the Minister, but he has yet to make that case.

If the Minister were right, can he explain whether amendment No. 122 would apply to the RNLI? I wish to express an interest. I am a shoreline member of the RNLI and I am worried about those who volunteer for that amazing service. They risk their lives. They are not members of a statutory service nor are they doing it for commercial gain. Will they be subject to the exemption  as a statutory body? Will they be treated differently from those on commercially operated merchant ships? Will the hon. Gentleman make it clear whether the coastguard services provided by the RNLI will be covered?

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

Mr. Gale, this morning members of the Committee were suspicious of my motivations, yet this afternoon they say that I am contradicting myself when explaining our approach to the exemptions. I am slightly surprised that the Opposition wish to extend an exemption to the private sector, which is capable of withdrawing its services, but do not wish to extend it to the police when they are protecting the public. That is a bit of a contradiction there, but we shall put it to one side.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I hope that I have made it clear that most of our amendments are probing amendments, but I am trying to achieve some internal consistency. There are grounds for arguing that there is a lack of internal consistency in the way in which matters are being approached. Some organisations are being pushed within the scope of being prosecuted, while others are kept out of it. If there is a thread throughout the clause, it seems to be a desire to protect public service providers, but not commercial or private service providers that have exactly the same role.

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

I am grateful to the hon. Gentleman. It is not the Government’s motivation to cause greater problems for the private sector. The key point is emergencies to which we shall come in a minute.

Organisations within the public and private sectors are different in two key respects. First, the private sector organisation can choose the terms and contractual arrangements with a client and, on that basis, agree the service that it can supply. Undoubtedly, that will take into account the resources that the client is prepared to have standing at the ready. Secondly and perhaps more importantly, a private organisation can call in the back-up of the fire brigade if it is unable to cope with the demands of a given situation. It can deal with the matter as the hon. Gentleman has outlined, but if it goes wrong it can call the fire brigade as a back-up. There is certainly no back-up for the fire brigade.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

That may be true, but if private services were dealing with a fire on an oil rig in the North sea, which would fall within the measure, I doubt very much whether a lot of statutory back-up could be called in to help. The Royal Navy might come along and provide some assistance, but in reality the entire management of that crisis is likely to stay in the private sector.

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

That is a key point, because the company would be acting in an emergency situation. In the hon. Gentleman’s example, the private company operating in the aerodrome would be exempt as well, because it would be operating in an emergency situation in place of a statutory body. That is the key point for the Committee to remember—we are talking about emergency situations.

The hon. Member for Kingston and Surbiton took us back to what the offence was about, and he was quite right to do so, because we need to step back and remind ourselves what the offence was intended to deal with in the first place. Its main aim is to tackle organisations that engage in activities that create risks to the safety of others and fail to manage those risks appropriately.

We agreed that applying the offence to public services is important. They too must take their safety responsibilities seriously, and the offence applies widely to employer and occupier duties when public bodies are supplying services. There is a band of activities in which public bodies are under responsibilities to protect the public from risks and harm generated by others, and they need to carry out those responsibilities properly, but the exemptions raise the question whether a public body should be responsible for manslaughter if it has failed to do so. In our view, that is taking manslaughter too far. That would amount to saying that organisations such as the fire service or NHS bodies were responsible for a person’s death because they failed to stop them from being killed. We must be careful about the implications of imposing legally binding duties or making organisations more risk averse.

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

The point that I was seeking to make was that I wanted the Minister to explain why, if an organisation such as the health or fire service acted in a grossly negligent way, it should be exempt if it acted in such a tawdry manner.

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

I am trying to see the circumstances. If it were grossly negligent in circumstances other than dealing with an emergency, of course it would be liable. That is why we have removed Crown immunity. But we are talking about cases in which the service should not have to think about its reactions and whether it should be risk averse, so that it can carry out what needs to be done to protect the public.

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

The Minister is still not convincingme. We are talking about emergency services. Most of their activities, by definition, involve dealing with emergencies. It is their core business. If they are grossly negligent in their core business, I suggest to him, this is not necessarily the place to give an exemption. I want to be convinced, but he must go a bit further.

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

Mr. Gale, if it takes me all day, I will try to convince the hon. Gentleman. [Interruption.] Perhaps not, given that it is a late stage in the week of parliamentary activity.

The definition of an emergency situation is that the circumstances are life-threatening or threaten to cause serious injury or illness or harm to the environment or buildings or other property. The decisions taken—we talked about this in military terms—are split-second decisions. The exemptions that we are considering apply to those conditions, not to how the organisation goes about its business in general. There are small areas where the exemptions are entirely appropriate. Perhaps the hon. Gentleman does not agree with me, and however hard I try he will not accept my position, but I think—

Photo of Dari Taylor Dari Taylor Labour, Stockton South

I would be interested to hear whether my hon. Friend has received representations from the fire service or any other emergency service stating that the protection awarded in the Bill is not adequate. I have received no such representations.

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

I am grateful for the intervention. My hon. Friend is helping me in her own way. She makes a fair point about the extensive consultation on the Bill. We have tried to strike a balance on responsibilities—not giving a Crown body an easy exemption, but being mindful of the impact of a decision on risk aversion. She is right that the emergency services have not contacted us saying that what we are doing jeopardises the position.

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

To answer the hon. Gentleman, the Royal National Lifeboat Institution would be exempt in providing emergency services. I hope that the Committee will support the Government amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 2:15, 26 October 2006

I am grateful to the Minister. I shall reflect on the Government’s approach in changing the Bill. However, I am still concerned. An argument can be made both ways. People could ask why we are providing protection for statutory bodies when, unless they do something really bad, they will never be prosecuted anyway. Alternatively, they could say, “If you are going to provide this protection because you think it is justified, why are you excluding the commercial sector, which will have to make the same decisions in an emergency as the statutory sector?” I am not completely persuaded that we have got it right, but I shall reflect on the debate.

Amendment agreed to.

Amendments made: No. 120, in clause 7, page 5, line 13, leave out ‘to which this section applies’ and insert ‘within this subsection’.

No. 121, in clause 7, page 5, line 17, leave out from ‘organisation’ to end of line 18 and insert

‘providing a service of responding to emergency circumstances (or circumstances believed to be emergency circumstances) either—

(i) in pursuance of arrangements made with an organisation within paragraph (a), (b) or (c), or

(ii) (if not in pursuance of such arrangements) otherwise than on a commercial basis;’.—[Mr. Sutcliffe.]

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

On a point of order, Mr. Gale, I do not wish to be pedantic, but was Government amendment No. 122 moved?

Photo of Roger Gale Roger Gale Conservative, North Thanet

Everything comes to those that wait. It will be moved at the appropriate time.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 132, in clause 7, page 5, line 19, leave out paragraph (e).

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss amendment No. 144, in clause 7, page 5, line 22, leave out paragraph (g).

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The amendments will perhaps prompt a debate that is narrower in scope than our debate on amendment No. 119 and the subsequent amendments, although I accept that there is a degree of overlap.

What is an emergency service? We have to consider not what we think an emergency service may be, but what it says in the Bill. We are told that the organisations that claim exemption, except if they are mentioned in 3(1)(a) or (b), owe no duty of care to people who are at the receiving end of their services, as opposed to employees or in respect of premises. The organisations include fire and rescue authorities—the Minister has explained why—and “a relevant NHS body”, which is defined in clause 7(3) as

“an NHS foundation trust, National Health Service trust, Special Health Authority, Primary Care Trust or Local Health Board in England and Wales”.

I think that the definition refers to the same things in Scotland, and in Northern Ireland it also encompasses

“a Health and Social Services trust”.

The exemption is to cover “emergency circumstances”, but those are defined as

“circumstances that are present or imminent and...are causing, or are likely to cause, serious harm or a worsening of such harm, or...are likely to cause the death of a person”.

Serious harm is defined as

“serious injury to or the serious illness (including mental illness) of a person” and

“serious harm to the environment” and property.

It is difficult to see that the NHS will not be exempt from the possibility of being charged with corporate manslaughter in respect of every hospital patient who happens to be in hospital with a condition that might be life threatening, because the wording does not confine what is going on to the accident and emergency department. It extends much wider than that, which troubles me. That might be what the Government intended—perhaps it was—but that is not how I initially read the section on emergency services.

A few years ago, I was involved in the early stages of a case that involved two young hospital doctors. A patient with a life threatening condition had undergone an operation that was more than routine—there can be no doubt of that—and subsequently died of infection. The doctors were prosecuted for manslaughter. The argument was that the doctors, who were very junior, had failed to pick up the signs of post-operative infection in the patient and that that was the direct cause of death; the patient would otherwise have survived. They were successfully prosecuted and convicted.

I was not involved in that aspect of the case, but the doctors received either short custodial or suspended sentences; their careers, of course, were wrecked. During the case it became abundantly clear that the doctors’ training and supervision was woeful. As a result, consideration was given to whether the hospital trust should be prosecuted for manslaughter. A  decision was taken against that, but it was prosecuted under the Health and Safety at Work, etc. Act 1974 and pleaded guilty. That is my understanding; I was not involved in the latter parts of the case, so my memory of it may be faulty.

The case had nothing to do with bringing in a patient off the street and having to make quick life and death decisions about their care—the circumstances that the Government may have had in mind when they included NHS bodies in the definition. The case was about serious failings of care that could and should have been prevented, in a hospital in which there were serious management failures.

According to my reading of clause 7, it would be impossible to prosecute an NHS health trust for such failures. It would be able to say, “The patient was facing emergency circumstances and worse serious harm and injury; we are therefore exempt”. Is that what the Government intend? I do not think that it would ever be possible to prosecute a health trust when a patient died. The other problem is that unless a hospital kills a patient who is otherwise pretty much 100 per cent. fit, it will always say that it was an emergency because the patient was at risk of serious harm.

The problem is very real. I should make clear that I sought to delete subsection (2)(e) and (g), but on reflection paragraph (g) seems to involve a very different set of facts, although it refers to the NHS. I assume that it suggests that an organisation providing services for the transport of organs, blood or equipment could not be prosecuted if, say, blood were taken to the wrong hospital by mistake and the patient did not get it. Those would be the only circumstances in which the situation could arise. The emergency nature of such services is different and the argument is different.

However, we are effectively giving “the relevant NHS body”, as defined in clause 7(3)(a), (b) and (c), pretty much blanket protection against killing a patient in its care. Is that what the Government or the Committee want?

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

I share the concerns of the hon. Member for Beaconsfield. Any ordinary person reading the clause, given how it hangs together, would take the view that an awful lot of NHS activity will be exempt. I am shocked by that reading. I hope that the Minister will tell us that our understanding of the clause is completely wrong. If so, he needs to tighten up the wording. Given the words “emergency services”, I had thought that we might have seen specific mention of accident and emergency and NHS ambulance trusts, for example. I did not expect every single type of NHS trust to be listed.

It may be that the Government had in mind particular aspects of health services that are related to emergency. However, the exemption seems rather broad, and I do not think that they have targeted it in the way that most people would have expected. The hon. Gentleman gave an example. I am sure that, like me, other hon. Members have frequently been concerned at how junior doctors and junior NHS staff often end up with their heads on the block because there has been a failure resulting in someone’s death,  yet the trust and the management do not seem to get any comeback. If that situation were changed, and if there were the possibility of prosecuting organisations more simply—as the Bill, without these exemptions, would permit—that could benefit our NHS staff. They may be concerned about the current situation, under which they face prosecution. If I were a member of the family of a patient who had died, I would rather take an action against the organisation than against the individual members of staff, and I would like the law to enable that.

Photo of Michael Fabricant Michael Fabricant Opposition Whip (Commons)

The required level of evidence is a lot higher for criminal actions such as those that we are discussing. If there were a subsequent civil action in which the relatives of the deceased sought redress from the hospital, it would be easier for them to pursue that in court if there had already been a criminal conviction.

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

The hon. Gentleman makes a valid point, and I hope that the Minister will reply in some detail, because if my interpretation and that of the hon. Member for Beaconsfield is correct, the Bill is proposing quite a significant change. I think that the Minister’s colleagues would be worried about that and would find it difficult to explain to their constituents, were they backing a change of the breadth that we fear.

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

I am grateful to the hon. Gentlemen for the way in which they have commented on the amendments, and for trying to tease out the Government’s thinking. I am an ordinary person, and I can assure the hon. Member for Kingston and Surbiton that on my reading of the Bill the exemption is very tight indeed, though he may want to question my definition of an ordinary person.

The hon. Gentleman spoke of the difficult situations in which people find themselves when a loved one has died and when the cause is uncertain—when it could be the result of either the individual practitioner’s treatment or of system failure within the organisation. That is one of the reasons why we have had Crown immunity removed.

It was said that there may be occasions when it could be appropriate to pursue action against both organisations—against a grossly negligent individual and against the organisation if a link could be made to gross negligence on its part. However, the exemption is drafted as it is to take account of emergency situations. The effect of subsection (2)(e) is to exempt NHS bodies, including hospital and ambulance trusts, from the offence in relation to the way in which they respond to such emergency circumstances. That would mean that trusts would not face criminal prosecution in relation to their management of response to an emergency—the number of medical personnel attending, the time taken for ambulances to arrive, or decisions about patient prioritisation by staff on the ground. Trusts must balance finite resources against competing demands when responding to emergency circumstances. We do not believe that it is right to impose a criminal liability for the consequences of those decisions.

The exemption is not intended to, and does not, extend to medical treatment. The relevant NHS trust should not face a prosecution for corporate manslaughter in relation to the time taken for the ambulance to arrive or the number of personnel sent. However, if a patient died because an ambulance worker was so poorly trained in resuscitation techniques that it amounted to gross negligence on the part of the NHS trust to allow him to perform that role, it would not be exempt.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 2:30, 26 October 2006

I am pleased to hear the Minister say that. Perhaps I am wrong, but reading how the clause is worded, I am not persuaded that he will achieve that outcome. Even if he is correct, there is a grey area when the emergency circumstance ends and the ordinary treatment in the hospital begins. Even if the hon. Gentleman wants to pursue that line, we need greater clarity about where it lies. At present, it is completely unclear.

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

I shall continue and hopefully reassure the hon. Gentlemen. If I fail to do so, I am sure that we shall return to the matter. We are certainly not attempting to exempt NHS trusts in circumstances that are not emergencies. The difficulty would be to draw up a credible, detailed set of circumstances. The hon. Member for Beaconsfield is far more expert than I at understanding legal framework and how such a list could be drawn up. As for the exemptions, the Scrutiny Committee told us to be clear about what we put inthe Bill.

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

Let me go a little further. I might help the hon. Gentleman. We tried to set out circumstances in which trusts would not be exempt. I have given examples of when they should be exempt. I emphasises that negligence would have to be attributable to the relevant NHS trust and not solely to the individual administering the treatment. That is where the balance lies.

Whether or not ambulances owe a civil duty of care in terms of responses to emergency circumstances is open to question. They have been held to owe duties of care in some situations. For example, in the case of Kent v. Griffiths, the ambulance service was found to owe a duty of care in relation to a delayed response to a 999 call made on behalf of a named individual. However, Lord Woolf, in making his judgment in that case, made it clear that such duties may not always arise. For example, when a delay was due to no ambulance being available or to a conflict of priorities, the imposition of liability might not be appropriate.

If amendment No. 132 were accepted, NHS trusts would be left in some doubt about their liability on corporate manslaughter, and that is not desirable. It would risk trusts adopting defensive practices that would not be in the best interests of the public.

The purpose of clause 7(2)(g) is to ensure that an organisation transporting blood, organs, personnel or equipment by arrangement with a relevant NHS trust should benefit from the same exemption as the trust, but only if it were operating in emergency circumstances.  The exemption puts those bodies in the same position as an NHS trust when, for example, there is a need to transport medical personnel to the scene of an accident or an organ to a person in need of a transplant in emergency circumstances.

When a trust has arranged for another body to carry out an emergency response on its behalf, we do not think that criminal liability should attach to one body, but not the other. To allow that might risk reducing the availability of such alternative forms of transport to NHS trusts, which would not ultimately be in the public interest. The difficulty that the Committee faces is that the Government, in trying to be transparent in how they regard the exemption, have put in the Bill how they want to progress. The amendments would remove the exemption and do not accept that there are certain emergency circumstances in which the services might find themselves. That dilemma faces the Committee today. My balance would be to support the Government position unless the Opposition can come up with a better remedy than just removing the exemption. Hon. Members have said in their contributions that they accept that there are such circumstances, but they feel that the exemption is too wide and want to narrow that exemption.

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

The whole point of this debate is that the Government are claiming credit for eliminating Crown immunity, but there is a real danger that they are just bringing it in again by the back door in the same Bill. Let me give an example. If one of my constituents is suffering from acute appendicitis, with the danger that it could turn into peritonitis, which is life-threatening, would the Minister consider that to be a serious illness under the terms of the clause?

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

I say this without medical expertise, so I hope that the hon. Gentleman will give me the benefit of writing to him if I am making a grave mistake, although I do not think that I am. That is medical treatment; it is about the treatment of that condition. We are talking about emergency circumstances. I have sparked a much wider debate. I give way.

Photo of James Brokenshire James Brokenshire Conservative, Hornchurch

Perhaps the issue is the definition of emergency circumstances. Appendicitis, or indeed any serious medical condition, would appear to be circumstances—the word “circumstances” would extend to an illness or medical condition—that are present or imminent. I think that that is the issue that we are struggling with, and which lies behind the amendment. Will the Minister at least reflect on the issue that has been highlighted—the use of the word “circumstances” in that context? It could extend not only to the response to an emergency or an accident but to an existing medical condition.

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

I thank the hon. Gentleman for his intervention. I shall try to go a bit further.

The measures are not intended to extend to the hospital environment. A person who suffers a cardiac arrest on a hospital ward is in an environment where expert help is at hand. The patient’s circumstances, understood in terms of the patient’s environment, are not part of the emergency and do not in themselves  threaten to worsen the patient’s condition, although the condition might itself be an emergency. By contrast, a person suffering a cardiac arrest at home is in extra danger because of the absence of expert help.

We think that the Bill is drafted to that effect, and hope that we can help hon. Members accept the spirit of what we are trying to say. The hon. Member for Kingston and Surbiton does not accept the spirit, because he wants to argue both ways. He wants to argue that we should not try to clarify the position, as we have been doing, in light of what the scrutiny Committee says.

We are trying to make it clear to the trusts what their liabilities are. I believe that it is clearly set out. Using the amendments to remove the exemptions would be using a sledgehammer to crack a nut, because hon. Gentlemen have said themselves that they want to consider the way forward. That might be the best way for us to proceed. The hon. Member for Beaconsfield said that it was a problem amendment. Therefore, let us agree to return to the matter later, because I do not think that we will reach agreement at this point. With respect, I ask the hon. Gentleman to withdraw his amendments.

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

The Minister accused me of wanting to have it both ways, so I shall make absolutely clear what I am suggesting. The Government’s policy decision to remove Crown immunity in many circumstances received a cross-party welcome. On Second Reading, Members from all parties welcomed it. Our concern in this debate is that with respect to the NHS, it appears that the Government are reinstating Crown immunity in quite a wide set of circumstances, going against the pledge that they made in 2000. That policy decision has taken six years to implement, and it looks like it will not be properly implemented if we allow the clause to pass.

I listened to the Minister when he tried to define emergency circumstances and tried to convince us that they were very unusual, but I was not convinced. If he wants to get rid of crown immunity, except in a small set of cases that are generally to do with the actions of the emergency services, in order to give them a degree of extra cover so that they do not become risk averse, he will have to come back with wording that is much narrower and tighter than that before us. I am trying to help the hon. Gentleman reach his stated policy decision, so as always I have been constructive.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

We have had a fascinating debate. I am sorry if the Minister has felt slightly harassed by it. Before withdrawing the amendment, I will attempt to summarise the issues. The Government have set out this regime in clause 7 because they want to protect emergency services when they have to take quick decisions at the scene of an emergency about how a patient or patients are prioritised and looked after in the context of the emergency.

It is worth making the point that we might be making a mistake in doing that. As the Minister rightly said, it is possible for an ambulance crew to behave in a way that is grossly negligent, and which might be due to a management failure. For example, if ambulance men spend their time having cups of tea in a cafĂ(c) rather  than sitting in the cab of their ambulance and so fail to save somebody on a routine emergency or to go to someone’s house, and it turns out that the management of the ambulance trust knew very well that this was a regular practice among numerous ambulance crews and had done nothing about it—almost a standard health and safety matter—the management will notbe capable of being prosecuted for corporate manslaughter by virtue of this arrangement. That is one end of the spectrum.

The Government justify that by saying that what they are really aiming at is the scene of a multiple car pile-up in which urgent decisions have to be taken—triage—and some people may even be left to die because there are not enough people there. Help is prioritised and given to those who are most likely to recover. That is one end of the spectrum. The other end is to say that the Government are right in what they are trying to do, in trying to protect emergency services. The issue then becomes one of definition. The Minister used the expression “treatment”—he said this is not designed to cover treatment. However, the problem is that one starts to treat a patient from the moment that one lays hands on him and starts to clear his airway at the roadside. If the treatment is being carried out correctly, it should be a seamless process from the time that he is first picked up to the time that he is taken into hospital, operated on and hopefully ends up in post-operative recovery, getting better on a ward.

As drafted, there is a total lack of clarity as to where the cut-off point lies and, as with so many other things, it might have the law of unintended consequences. The Minister will forgive me if I touch on a controversial subject, that of the targets set for dealing with patients in accident and emergency departments. There has been plenty of anecdotal evidence to show that in order to meet targets, accident and emergency departments have tended to say that they have looked at a person when they have actually sent them up to a ward in which they are looked at by a specialist. It is treated as a patient having gone through the A and E department and looked at by the mainstream consultant. The poor patient then has to wait another hour and a half before he is seen but he has been crossed off the four hour target.

Therefore, we have to be rather careful. Is it being suggested, for example, that it is treatment in an accident and emergency department, which by its very name has the word emergency attached to it, that would be exempt, but that the moment that the patient is passed to a mainstream department of a hospital, that is ordinary treatment? That is a wholly artificial definition. Is it the case, as the Minister seemed to be hinting, that we are dealing here with only those events that take place outside the hospital environment or the surgery? In which case, that is certainly not spelt out in the Bill and is also a rather artificial distinction.

This issue has to be reconsidered. We will come back to it on Report if the Minister cannot introduce something better. There is an interesting philosophical discussion calling into question the entirety of the Government’s structure in relation to emergency services. That is also linked to the police and, to a lesser extent, the military and, perhaps, to the exemptions for  public authorities generally in clause 4(2). Leaving that to one side, even if we are dealing merely with the detail of what the Government are trying to achieve and trying to get it right, my view is still that at the moment the measure is opaque. If it is opaque, it will leave hospital health trusts and everybody else unable to know when the cut-off comes. I suspect that prosecutions will be brought where the legal definitions will have to be hammered out in judges’ rulings, because such rulings will be about whether or not the duty of care is owed in a particular circumstance within the scope of the Bill.

This state of affairs may be inevitable, but it is unsatisfactory. I hope that the Minister will reconsider the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 122, in page 5, line 26, at end insert—

‘( ) Any duty of care owed in respect of the carrying out, or attempted carrying out, of a rescue operation at sea in emergency circumstances (or circumstances believed to be emergency circumstances) is not a “relevant duty of care” unless it falls within section 3(1)(a) or (b).

( ) Any duty of care owed in respect of action taken—

(a) in order to comply with a direction under Schedule 3A to the Merchant Shipping Act 1995 (c. 21) (safety directions), or

(b) by virtue of paragraph 4 of that Schedule (action in lieu of direction),

is not a “relevant duty of care” unless it falls withinsection 3(1)(a) or (b).’.—[Mr. Sutcliffe.]

Clause 7, as amended, ordered to stand part ofthe Bill.