Perhaps it is my suspicious nature, but I was puzzled when I read this clause on transfer of functions. I appreciate the need for a transfer of functions, but what slightly puzzled me was that subsection (3)I will read it because one needs to understand the totality of it in order also to understand what the Government are doingstates:
Any proceedings instituted against a relevant public organisation after the transfer for an offence under this Act in respect of the persons death are to be instituted against
(a) the relevant public organisation, if any, by which the functions mentioned in subsection (1) are currently carried out;
(b) if no such organisation currently carries out the functions, the relevant public organisation by which the functions were last carried out.
It then goes onthese are the words that my probing amendment seeks to deleteto state:
The Secretary of State may by order specify a relevant public organisation other than the one mentioned in paragraph (a) or (b) as the organisation against which the proceedings are to be instituted.
That is all very well but it gives the Government the power to nominate any organisation that they happen to dream up as the one that ought to be prosecuted, if the Secretary of State so specifies. I do not want to take this to the point of the ludicrous, but the measure is drafted in such a way that if something takes place which is clearly the responsibility of Department A, such as the Ministry of Defence, the Secretary of State can say that actually the Department that should be prosecuted is the Home Office.
My slightly suspicious nature crept in because one can see that, in circumstance in which a Government Department might have been prosecuted on a coupleof occasions for something, the Minister mightthink it rather more convenient if the arrow of public opprobrium were deflected towards another Department, by order of the Secretary of State, specifying that it is that Department that ought to be prosecuted.
First, given subsections (3)(a) and (b) and (4)(a) and (b), I should like to understand why those subsequent three lines are necessary. Secondly, if they are necessary, why is the scope of the Secretary of States powers so wide? That power is subject to the negative resolution procedure, which is very niceit means there is some possibility for Parliament to intervene and say, Hold on a minute, the Government are trying to conceal what is going on. They are saying that the organisation that ought to be prosecuted is A, whereas everybody else knows that it really ought to be B. That is a step in the right direction. The alternative view, of course, is that something as drastic as the Secretary of State stepping in to specify a completely different organisation as relevant is a matter that should be subject to the affirmative resolution procedure.
I simply throw that idea in for debate. The amendment is a probing one, but the current drafting leaves open the possibility of a Governmentnot necessarily the present one but a subsequent one finding it convenient to order some obscure agency to be liable for prosecution, to spare the blushes of a major Government Department.
I understand why the hon. Gentleman is suspicious. He is right to air his suspicions, but I hope that I shall allay them.
The amendments relate to two different clauses15 and 19. Clause 15 sets out which body is to be prosecuted when functions transfer between or out of Government Departments, or the other bodies listed in schedule 1, or police forces. Prosecutions will be taken against the body that currently has responsibility for the relevant function, but if the function is transferred out of the public sector entirely, proceedings will be against the public body which last carried out the function.
To take a recent example, the Department for Communities and Local Government was established a short time ago; it had a number of functions transferred to it, primarily from the Office of the Deputy Prime Minister. After the new Department had been established, any prosecution relating to functions transferred to it from the Office of the Deputy Prime Minister would be against the new Department. That reflects the reality that when functions transfer, large parts of Departments transfer too.
In some circumstances a different approach maybe warranted. For example, if a function transfers between Government Departments but there is no corresponding transfer of personnel, it may be more appropriate for the Department responsible at the time of the fatality to retain liability. Clause 15 therefore enables an order to be made to vary which body is to be prosecuted. Amendments Nos. 145 to 147 would remove that flexibility, but the Government consider that such flexibility is suitable for the sorts of cases that I mentioned.
Amendment No. 148 relates to clause 19, which sets out how the schedule of Government Departments is to be amended. If a change to the schedule is substantivefor example, if it alters the range of functions to which the offence applieswe propose that the change should be subject to the affirmative procedure. If, however, a change is purely administrativefor example, if it is needed to reflect a restructuring of functions within Governmentthe amendment would be made by negative procedure. It would be onerous to ask both Houses to debate a change in the schedule that merely reflected a change of name of a Government Department, or a shift of functions between an existing Department and anew one.
Amendment No. 148 would limit the use of the negative procedure for deletions from the list. It would apply only if the body on the list were being abolished and all its functions transferred to another Department. We do not think that a huge amount turns on the point. The provision is most likely to be relevant for changes in the machinery of government, when a Government Department is abolished and all its functions are transferred to one or more other Departments. In those cases, subsection (3)(b) enables any newly created Departments to be added to the schedule by the negative procedure. Subsection (3)(c) is intended to mirror that by allowing any Departments being abolished to be removed from the list in a similar fashion.
The present drafting allows a degree of flexibility. It also covers circumstances in which a Department is abolished and its functions are not transferred. We cannot think of any immediate examples, and we think that it would be rare, but a Department might be wound up because the Government was not carrying out a particular activity any more. In those circumstances it would be onerous to require the affirmative procedure to be used. Keeping the Departments name on the list would not affect its abolition. We see little point in requiring Parliament to debate the consequent changes.
As I said, the hon. Gentleman is right to raise his suspicions, but I hope that I have explained our intentions. The provision is not about hiding anything; it is about trying to smooth the flow of Government machinery. I hope that the hon. Gentleman will withdraw his amendment.
The drafting of the provision is fully justifiedI have no difficulty with that. However, the Secretary of State might exercise his power to specify a relevant public organisation other than the ones covered by clause 15(3)(a) and (b) and (4)(a) and (b), so it is incumbent on him to publicise the reasons for that, otherwise, all Parliament will have is the notice that he has made such an order. If Opposition parties or any hon. Member, decide to pray against the order because they wonder whether there is something about which they should be suspicious, the information regarding such a decision will potentially be unavailable. I hope that the Government will give clear instructions so that the relevant Opposition departmental spokesman will be able to tap into information about why the power has been used. That will save time in the House, because negative resolutions will not be debated.
I shall look into that. I understand how that may occur. I undertake to write to the hon. Gentleman about how to deal with it.