Clause 8

Corporate Manslaughter and Corporate Homicide Bill – in a Public Bill Committee at 2:45 pm on 26th October 2006.

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Child-protection and probation functions

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 134, in page 6, line 4, leave out subsection (2).

We return to a similar problem area. I am not persuaded that my amendment, which would delete subsection (2), is appropriate, except that I should like to debate the extent to which child protection and probation functions are exempt. It may be argued—you will have to make a ruling, Mr. Gale—that we will effectively have a clause stand part debate. We will have to see how matters progress.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. I have made it plain and will do so again that I am more than happy to have a stand part debate at the beginning of a clause. In this case there is only one amendment to debate and if the hon. Gentleman wants a stand part debate he may have one.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I leave it in the hands of the Committee. I simply wanted to say that, in tabling the amendment, I was not 100 per cent. sure that it achieved its intended aim.

The issue in clause 8 is similar to one we have encountered previously. Do we wish to exempt child protection services and probation functions from the operation and scope of the Bill? Organisations have a duty of care  to their employees or premises, but only underclause 3(1)(a) and (b). However, that removes any duty of care by child protection or probation services towards their clients or, in the case of probation functions—which is slightly more problematical and why these two things need to be considered separately—in respect of the wider public being protected from their clients.

I acknowledge that this is a difficult subject. One has only to consider the Victoria ClimbiĂ(c) case, for example, to see that the most serious kind of criticisms have been made of how social services handle child protection. Indeed, I would go further than that, because of my experience as a constituency MP. I should say that I deal with various local authorities and I should not like to suggest that I am identifying a particular one. After nine years as a Member of Parliament I have ended up with a jaundiced view of the ability of social services to care for children in care at all. There seems to be a depressingly familiar ring about the word “failure” in respect of the protection, nurture and help given to children in care, and—in a case as extreme as that of Victoria ClimbiĂ(c)—in respect of protecting such children from death. I grant that the field is difficult and challenging for those working in it. However, is it right that not the social workers themselves but the managers, who are often to blame for not having proper systems in place, should be exempted in a blanket way from corporate manslaughter prosecution? I have deep anxieties about that.

I think that I can anticipate the Minister’s arguments, and in some ways they may be the same as those given by the police: it is wrong to expose people operating in challenging environments to prosecution. However, in a sense, the argument is circular, because the Minister says at the same time that only in the most extreme cases will people be prosecuted anyway. Why, then, do they need special protection? Does the Minister think that their decision making would be inhibited? For me, there is a question mark about that, because at the end of the day individuals will not be going to prison—organisations will be fined.

I wonder whether there is not a better way of dealing with the issue. I wonder whether child protection and probation functions—child protection functions particularly—should not be removed from the exemptions altogether. Probation functions may be different. I suppose one could argue that it would be proper to have a fetter in respect of children in care misbehaving and causing death or somebody subject to a probation supervision killing somebody. In such cases, I would have sympathy with the Minister.

However, as far as the protection of the client group—children or those subject to probation—is concerned, I am more anxious, particularly in respect of children because of the extra level of responsibility that we owe them generally in our society. That is different in nature and quality from that which a probation officer owes a person subject to probation supervision. With that in mind, the Minister may be able to articulate why the Government think the very broad exemption is needed.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry)

My concerns are similar to those of the hon. Member for Beaconsfield. My experience of the social services run by Kingston council has been excellent, and when I have had to deal with other social  services in nearby authorities, I have been concernedat the fact that they are nowhere near as good as my local service. I have had experiences similar to those mentioned by the hon. Gentleman, but I am sure that he would agree that his comments are not true of all social services; I have seen some do superb work.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Let me make the position clear. I hope that I picked my words with attention and care. I agree entirely that there are social services that operate exceptionally well in a challenging environment; I used to do care work for exceptional social services in a number of London boroughs. Those in my own county are good, but those of some adjacent local authorities, which have a role in looking after some of the children in my constituency, have at times caused me grave anxiety.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry)

I am sure that the hon. Gentleman is pleased that I gave him the chance to clarify that. I do not demur from his overall point; no one would who had read Lord Laming’s conclusions about the agencies in the Victoria ClimbiĂ(c) case. Let us remember that social workers, nurses, doctors and police officers were involved in that case. Lord Laming described their failings as a disgrace. Given that sort of finding in a major public inquiry, it seems odd that we should exempt such services as the Government have done. Given that very recent experience, I really do not understand the Government’s thinking.

I think that I am right in saying that the clause was not in the draft Bill and was therefore not considered by the Joint Committee. It is therefore incumbent on this Committee to ask some searching questions, because none of our colleagues had a chance to consider the clause during the pre-legislative stage.

I am drawn to the explanatory notes, which also do not suggest precise thinking. In relation to clause 8, they state:

“It is unlikely that such bodies”— child protection services and the probation services—

“would owe a duty of care should a person be killed in connection with such activities (for example, if a child was not identified as being at risk and taken into care and was subsequently fatally injured). This clause makes it clear that such circumstances are not covered by the offence.”

That suggests that the Government want to ensure that there is no liability if a social services department fails totally to identify a risk to a child. If that is the case, they need to define the circumstances more carefully. Given Lord Laming’s findings, there is no doubt that social services should have identified the risk in the case of Victoria ClimbiĂ(c). I am worried that the clause creates a blanket exemption that will not enable bodies to hold social services to account properly when they fail miserably.

I appreciate that the area is particularly difficult, but let us remember who will make such a case. Presumably it will not be the parents, and it might not be the guardians. Who will make the case? It might be another family member—say, a grandparent—who is concerned that there was a failure, so we also need to pay attention to the dynamics of how the process will work.

I hope that the Minister will give a rather greater explanation than the explanatory notes do and that he will reflect on our comments, given the lack of scrutiny that the proposal has received to date.

Photo of Tony Lloyd Tony Lloyd Labour, Manchester Central

Ever anxious to help my hon. Friend the Minister, I too share the concerns that have been expressed, but, although I understand the arguments that the hon. Member for Beaconsfield made about the probation service, I think that, with regard to the application of the Children Act 2004, we ought at least to examine carefully whether we have got the balance right in the Bill.

We know as a matter of fact that although there are many examples of good child care in our social services, there have also been some awful examples, where the questions why things went so tragically wrong have rightly been debated. That is particularly true of the Victoria ClimbiĂ(c) case, but it is true of other cases too. With that background, Parliament must provide a legislative framework that establishes where the boundaries of legitimate care should lie and where there might need to be exemptions from the duty of care under the Bill, in order to give proper protection to those working in the difficult field of child care.

My concern is the same as that which has already been expressed, namely that the boundaries in the clause seem to have become much wider is necessary to give proper protection to those working in child care. Had the Bill been on the statute book at the time of the Victoria ClimbiĂ(c) tragedy, it is arguable that corporate manslaughter legislation might have been an appropriate legislative vehicle for prosecution of the authorities involved, but subsection (2) as drafted could had have the consequence of putting that possibility out of reach.

I know that that is not what my hon. Friend the Minister intends. I simply warn him that we face the potential for long-term public ridicule if, having established the legislation with good intention, we found that it could not be used in precisely the circumstances in which we would want it to be used. Hopefully, my hon. Friend the Minister can help the Committee and alleviate a common concern. He may have good and appropriate answers, but I hope that he can register the fact that, at present, it seems as though the provision may have been drawn a little too broadly.

Photo of Gerry Sutcliffe Gerry Sutcliffe The Parliamentary Under-Secretary of State for the Home Department 3:00 pm, 26th October 2006

I welcome the debate and the consistency of the argument. The same points have been made repeated: the clauses are too wide and miss the mark of what we are trying to achieve. I am grateful to my hon. Friend the Member for Manchester, Central (Tony Lloyd) who said that we did not intend that to happen; clearly it is not. We have cause to look again at some issues, and I shall come back to them later. We have tried to make the case in relation to the police, and the fire and emergency services, but I accept and acknowledge the services dealt with in clause 8 are more difficult to deal with, if that is possible, because of the issues involved.

Members of the Committee have accepted the difficulty of dealing with children at risk in extraordinarily difficult circumstances. Local authorities and their partners do everything that they can to identify and meet the needs of children at risk of harm, but their success cannot always be guaranteed. Determining the best interests of a child requires a careful balancing of many factors. The courts have had real difficulties deciding what duties of care are owed by local authorities in such circumstances. They have found that it may well be inappropriate to subject a local authority to a duty of care in respect of decisions relating to taking children into care. That would, of course, mean that the offence would not apply. That is the sort of activity in which public policy and exclusively public function exemptions are also likely to have a role.

However, we do not want to leave residual uncertainty. Public authorities must be left in no doubt about their criminal liability. I have tried to be consistent throughout. I know that the hon. Member for Kingston and Surbiton (Mr. Davey) thinks that we have removed Crown immunity with one hand, but brought it back in with the other, but that is not our intention. We want to make sure that we take a significant step forward—that services are delivered in the way that we would expect and that public authorities know what their criminal liabilities will be. We do not want to encourage them to become risk averse, particularly in the field of child protection, with the possibility that children could be removed from their families unnecessarily on the one hand, or that the authorities might be less proactive in seeking out and tackling child abuse and neglect on the other hand.

The offence is not aimed at individual decisions and would apply to the organisation and management of child protection activities. However, we do not want the systems and procedures for making such decisions to be affected by the fear of investigation and prosecution. That could create an over-cautious view, affecting the fine balance that is needed in such decisions.

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

I want to pursue the points that have been made. I accept that the hon. Gentleman is consistent in his efforts to challenge me, but let me try to make the case and we can see where that leads.

We want to make sure that the decisions that are taken are advantageous and good for children and families. [Interruption.] I will give way first to the hon. Member for Kingston and Surbiton, after which I shall give way to the hon. Member for Beaconsfield.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry)

The reason why the issue of risk aversion does not apply to child protection services is that the decisions that are made on withdrawing children from their families go before courts anyway. External people are overseeing the decisions made by social workers and their partners. We already have a check, so the Minister should not worry that, by applying the offence to child protection services, it will make them any more risk averse or change the incentive structure. They rightly already have overseeing bodies, primarilythe courts.

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

I accept what the hon. Gentleman is saying. The bodies and the framework that are in place for protecting and making local authorities accountable are helpful in such circumstances. However, consistent with the arguments that I have made in respect of other services, risk aversion is an issue that we have to face.

The hon. Gentleman is correct about the accountability framework for local authorities in child protection work. When children are killed, and abuse or neglect are suspected, serious case reviews are commissioned by the local safeguarding children board. Those reviews look in detail at the involvement of services with a child or young person. The focus is on how to learn lessons for the future. There is also a statutory requirement to report the deaths of children in local authority care to the Commission for Social Care Inspection and to the Secretary of State. In very serious cases of failure a public inquiry may be held.

Those are all rigorous, thorough and very public forms of accountability whose inquisitorial format allows a full picture of the failings that led to a death to emerge. All of the inquiries that I have described produce recommendations which drive improvements in the provision of services. That is the sort of accountability that the public services need—not prosecution under the criminal law.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Does the Minister think that there might be an argument, in child protection cases, for distinguishing between, on the one hand, decisions to make a place of safety order or take a child into care and bring care proceedings and, on the other hand, decisions taken when a child is actually in care? Once a child is in care the public rightly take the view that there is a special responsibility. Is there not an argument to be made that if a child dies while in the care of a local authority the exemption should be lost?

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

When I have concluded my remarks the hon. Gentleman will understand that I believe that there are indeed areas that we need to consider. As the amendment is a probing one, there are issues to which we need to return. However, I am trying to set outthe Government’s consistent approach on when exemptions are appropriate.

The hon. Member for Kingston and Surbiton asked about the lack of pre-legislative scrutiny of the provision. As an exclusively public function, child protection was excluded under the terms of the draft Bill. It was addressed, but there was no explicit exemption—that is the difference.

The exemption is not intended to exclude from the offence the services offered generally by local authorities to children and families. Once a decision has been taken to provide a service or to meet an assessed need—for example, home help for the parent of a disabled child, or accommodation for a child who is being looked after—management failure in providing or commissioning those services should be covered. Clearly, some decisions will be subject to the exemption for public policy decisions, such as decision on the range and level of services to be provided. Some services might be exclusively public functions, such as the review of plans for the future care of a child who is being looked after. However, the intention is that, subject to those limits, the offence  should apply generally to services provided to children and families. Our intention is to focus on the particular difficulties raised by child protection responsibilities.

Photo of James Brokenshire James Brokenshire Conservative, Hornchurch

An example springs to mind and I should be grateful for the Minister’s clarification of whether it would fall within the scope of the exemption. I am thinking of a decision to place a child who has been taken into care with foster parents. If systems were so flawed and manifestly appalling that checks had not been carried out on the foster parents, and if it were later discovered that they had committed offences against children in the past, would that gross failure be captured? That is the type of scenario that we are all keen to avoid. It may need to fall under the sanction of the Bill, to ensure that appropriate steps are taken to ensure that it does not happen.

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

The hon. Gentleman is correct about our intention to cover such a situation. The question is whether the words in the Bill meet that intention. In the circumstances he describes, I would not want the exclusion to apply.

I acknowledge the Committee’s direction of travel, albeit I do not agree with it 100 per cent. None the less, I recognise the need to examine the exemption to confirm that it is adequate. My hon. Friend the Member for Manchester, Central said that we do not want to get into the ridiculous position of trying to achieve the Bill’s aims and objectives, but making a gross error in terms of exemptions. I do not see it that way. It is right for us to pursue the exemptions in the way that we have. The exemptions that we want, particularly on child protection responsibilities, are important. However, I would be happy to review whether we can frame the legislation in a more appropriate way, so that we do not cause the problems that have been described.

The hon. Member for Beaconsfield discussed probation service issues that are similar to those that we discussed in respect of the prison service. I hope that Committee will acknowledge the Government’s intentions and what we are trying to achieve. I am prepared to review the clause in the spirit of trying to be a bit more precise about what the exemption covers, and I hope that that guarantee will allow the hon. Gentleman to withdraw the amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the Minister for his comments, and I will beg leave to withdraw the amendment. I fully acknowledge that this is a difficult area. At the risk of repeating what I said earlier, if there is a way to compartmentalise the different duties, the point to centre on may be the difference between the obligations owed to a child once it is in care and those owed to a child who is outside of care. I accept, however, that some would argue that those distinctions are rather artificial. After all, if a local authority is weighing up whether a child should go into care, one would hope that its decisions would be as sensible and its duties the same as if it actually had the child in its care.

We should consider that we are sending a message to the public about the duties incumbent on public authorities. Once the decision to take a child into care has been made and the court process has been gone  through, what will happen if the child subsequently dies because of gross management failures within the organisation? My hon. Friend the Member for Hornchurch (James Brokenshire) gave the example of a child being placed with foster parents who kill the child. What if it could be clearly shown that there were danger signs, or if the child was allowed to visit its natural parents when there had been warnings that that might be dangerous for the child? I grant that those are still difficult areas for local authorities, but I believe that the public will be shocked by the idea that if there are gross negligence failures—that is what we are talking about, after all—it is not possible to prosecute the organisation concerned.

Photo of Edward Davey Edward Davey Shadow Secretary of State (Trade and Industry)

While I believe that the distinction that the hon. Gentleman makes may well have a great deal of power to it, and I hope that the Minister will reflect on it, let us remember that his distinction would not have catered for the Victoria ClimbiĂ(c) case.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I entirely accept that, and that is why there is still an argument that the subsection should not be there at all, although, if I understand the wording of the Bill, we would have to do more than remove just subsection (2). We would also have to remove the public authority exemption to local authorities in child care cases and the probation service, although I have always said that that is a rather different issue. However, we must remove subsection (2), which applies to local authorities in child care cases. I would be willing to consider whether we should do that on Report.

Photo of Ian Stewart Ian Stewart Labour, Eccles

It is good to see you in the Chair, Mr. Gale. In view of what the hon. Gentleman, in his deep concern about children in some social services situations, has just described, I put it to him that if there were such a serious breach, and if there were no exemption, there could be case for imprisonment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It is certainly technically possible. For example, if a social worker were to decide to allow a child who was in the care of the local authority to visit its natural mother, even though the social worker knew from the dossier in front of her that the natural mother’s boyfriend was a serious risk to the child, and if, having agreed to the home visit, she did not then put in any supervision but decided to go to the cafĂ(c) down the road to have a cup of coffee before picking thechild up two hours later, and the child on the home visit was murdered by the boyfriend, I have to say that I think that there might be an argument for a gross negligence manslaughter prosecution of the social worker under the existing law, albeit that that is a pretty controversial area in which to start to become enmeshed. Technically, I do not see that that would be impossible.

I had some difficulty following the hon. Gentleman’s argument about the introduction of personal liability for imprisonment in this context and I am not sure that I agree with him.

Photo of Ian Stewart Ian Stewart Labour, Eccles 3:15 pm, 26th October 2006

The hon. Gentleman is helping me and others to sort out our thinking on this complex issue, but let me press him on the next stage of the process that he outlined. I shall use his words. If there was gross negligence in that there was a systemic failure that would be the responsibility of the organisation or corporation, does it not follow that there should be at least the ability to consider the most serious sanction—that of imprisonment?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

No, is the answer. I disagree with the hon. Gentleman. As we debated earlier, I expressed my personal view that the Government were right not to try to introduce personal sanctions on managers for systems failures.

Manslaughter against individuals still exists as a charge, and we have to accept that we have created this offence to deal with the specific problem of prosecuting corporate bodies and that if one starts immediately to say that because the corporate body is guilty that should lead inexorably to punitive sanctions being placed on individuals in senior management roles, that is a step too far. It gives rise to a serious potential for injustice. I said that earlier, and however emotive the topic that we are discussing—it is very emotive—it does not change my view that the correct thing to do in such circumstances, if the breach by the individual is so grave, is that they should be prosecuted for manslaughter under the existing law. I do not think that one should say that the systems were so bad that someone should go to prison because they were part of the process by which those systems were bad. In any organisation, system failures are rarely down to one individual. A serious risk of injustice starts to arise when someone ends up carrying the buck for failures that should be further spread out.

Photo of Ian Stewart Ian Stewart Labour, Eccles

At the risk of antagonising the Minister—[Interruption.] Yes, and the Whip. I put it to the hon. Gentleman that the question will still arise in the minds of citizens of this country of who is responsible. We cannot go past that without giving an answer. If we have an answer, we must also address the spectrum of sanctions.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I agree with the hon. Gentleman that, following episodes or incidents of a kind that give rise to great disquiet, such as the death of any human being, because of what appear to be systems failures, the public become angry that individuals’ heads are not rolling. The criminal law, like anything else, can be a fairly blunt instrument and one should beware that one is not cutting off the heads of people who do not necessarily deserve to have them chopped. On the whole, in such settings, unless one can show specific criminal culpability at a level that would justify a manslaughter charge against the individual, I am reluctant to see people sent to prison for failures that might be due to negligence. We have a long history in this country of not jailing people for being negligent. We jail them for being grossly negligent, but not for straight negligence. That is a pretty good distinction to hang on to, and if we lose sight of it I fear that we will end up with a system that appears to be unjust. Perhaps  in the short term members of the public will feel assuaged by the sight of a manager being sent to prison, but in the medium term it will not have a good impact. First, it will not succeed in changing the behaviour of managers, because we live in a world where all human beings make mistakes. Secondly, it is potentially unfair, because it is rare that one individual is to blame for a systems failure. If one person is wholly to blame, however, it is a good reason for prosecuting him for manslaughter in the first place.

Having been briefly diverted from what I was about to say, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.