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I am disappointed that the Government have not taken these amendments on board, even though they have recognised that establishing a duty of care towards the public is in the public interest. Again, I quote what the noble Lord said in Committee:
“The Government recognise the strong public interest in ensuring that government departments and other Crown bodies are clearly and openly accountable for management failings on their part”.—[Official Report, 11/1/07; cols. GC 120-21.]
The simple fact is that public authorities should set an example and be prepared to be accountable for that example. Where a public authority cannot even act within the wide parameters set out by the Bill, where its actions fall far beneath what can be expected of it, it is right that the families of victims of its negligence should be entitled to prosecute those responsible. I beg to move.
Lord Goldsmith: My Lords, first, I want to clarify how the Bill will operate. Having looked at what has been said before on this amendment and, to some extent, having listened to what the noble Lord has just said, I think that there may be a misunderstanding. As the Bill stands, the offence is not limited, in its application to public authorities, to employer and occupier duties. It is important to emphasise that the relevant exclusion here is Clause 3(2), which states:
“Any duty of care owed in respect of things done in the exercise of an exclusively public function”,
unless it is an employer or occupier liability issue.
What does “exclusively public function” mean? It does not mean whenever a public body is operating. That is not how the term is defined. It is defined in the Bill as,
- “a function that falls within the prerogative of the Crown or is ... exercisable only with authority conferred”,
by that prerogative or by or under a statutory provision. That certainly does not mean a public authority acting just with statutory powers; it refers to things that can be exercised only with statutory powers.
Let us take education as an example. Education is not an exclusively public function, even though it is carried out by many public authorities. Healthcare is not an exclusively public function, although it is carried out by many public authorities. Those things can be carried out by private bodies without statutory backing or in the exercise of the prerogative, so the
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When public bodies carry on general commercial activities, for example, or activities such as healthcare or education, then, so long as a duty of care exists—I hope that no one is talking about trying to extend the existing duty of care as it stands in the law of negligence—the Bill as it stands will cover that. That is a very important difference compared with how the Bill has been seen. I give way to the noble and learned Lord.
Lord Lyell of Markyate: My Lords, I am most grateful to the noble and learned Lord. I think that we are looking at the interrelationship between paragraphs (a), (b) and (c) of Clause 2(1) and Clause 3(2). Is the noble and learned Lord telling the House that, if a public authority is doing something in connection with the supply by the organisation of goods or services, the carrying on of construction or maintenance, the organisation of any activity on a commercial basis, or the keeping or organisation of any plant, vehicle or other thing, it is liable in respect of all those matters?
Lord Goldsmith: My Lords, yes it is. Clause 3(2) would exclude it only if what it was doing was done in the exercise of an exclusively public function, defined as,
- “a function that falls within the prerogative of the Crown or is ... exercisable only with authority conferred ... by the exercise of that prerogative, or ... by or under a statutory provision”.
To be entirely accurate—it is important to be so—the exclusion is also in Clause 3(1), which relates to a,
But the provision of goods or services, construction or maintenance operations, the carrying on of any other activity on a commercial basis, or the keeping of plant or vehicles and so on, or is not carried out in respect of a decision as to matters of public policy. So I believe—I am fortified by nods from the Box—that I am right in having answered the noble and learned Lord’s question in the way that I have.
Lord Lyell of Markyate: My Lords, I am grateful but I have just one more question. The Army obviously organises goods and services—for example, in feeding its soldiers on Salisbury Plain—but is it or is it not covered?
Lord Goldsmith: My Lords, I believe that, in any event, soldiers would be employees covered by Clause 2(1)(a). I am not sure whether there is anything about the relationship of soldiers to the Army—we have one
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6.30 pm
Lord Henley: My Lords, I am not quite sure what the noble and learned Lord the Attorney-General believes because he was not able to catch the eye of those advising him.
Lord Goldsmith: My Lords, I was waiting to see whether I would be corrected.
Lord Henley: My Lords, the noble and learned Lord did not convince me and I suspect he did not convince himself. I imagine that at the top of the notes, which have been prepared to assist him in taking the Bill through, there is that little word “resist” which we all remember. That is what he wants to do. In some of what he said I had the impression that if that were the case, there is no reason why he could not accept my amendment. I do not think he has answered the points we have made or the points made by my noble and learned friend Lord Lyell, to whom I am very grateful for his intervention. The best thing is to test the opinion of the House.
Lord Goldsmith: My Lords, I was part way through what I was saying when I answered the questions from the noble and learned Lord, Lord Lyell. I thought that the noble Lord, Lord Henley, was speaking to that point and he has assumed that I had completed what I wanted to say.
I am most certainly resisting the amendment. I was trying to point out that the basis on which the noble Lord was putting his amendment is fallacious. It is simply wrong because it does not take account of what the Bill says. Nor does it take account of the fact that what he seems to be proposing is that the Bill should extend the duties to members of the public that already exist in the law of negligence. Notably missing from what the noble Lord said was a single example of a case where he believes that the duty should be extended—where he believes that the Bill should be extended—which is not covered by the Bill at the moment. With great respect to the noble Lord, surely it is important to put that forward. The noble and learned Lord asked me about soldiers on Salisbury Plain. I have answered him and said that that is covered. What example can the noble Lord, Lord Henley, put forward that is not covered?
Lord Lyell of Markyate: My Lords, I hope I am not out of order but I do not believe the noble and learned Lord answered me. He parried my thrust by saying that the soldiers would be covered because they are employees or perhaps because they lived in barracks and were covered by occupiers’ liability. Suppose a member of the public is killed as a result of some gross negligence in the supply of goods or the carrying on of any construction or any other activity; the noble and learned Lord was using as part of his
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Lord Bassam of Brighton: My Lords, I do not like to intervene in this way, but this is Report stage. Members should make only minor points of elucidation when asking a Minister a question. The noble and learned Lord the Attorney-General has been extremely generous in his responses. I ask the House to respect the usual conventions.
Lord Henley: My Lords, I have every intention of respecting the usual conventions. I had thought that the noble and learned Lord had sat down, as he had. I was brought up to believe that once the Minister has spoken, it is time for the mover of the amendment to say a few words and tell the House what he intends to do. I have done that and I do it yet again. I wish to test the opinion of the House.
6.35 pm
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 139; Not-Contents, 145.
Addington, L.
Alderdice, L.
Alliance, L.
Ampthill, L.
Ashcroft, L.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Bonham-Carter of Yarnbury, B.
Bottomley of Nettlestone, B.
Bradshaw, L.
Bridgeman, V.
Brougham and Vaux, L.
Burnett, L.
Byford, B.
Caithness, E.
Carnegy of Lour, B.
Chadlington, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Craigavon, V.
Darcy de Knayth, B.
De Mauley, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dykes, L.
Eccles of Moulton, B.
Elton, L.
Fearn, L.
Feldman, L.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Freeman, L.
Garden, L.
Glasgow, E.
Glentoran, L.
Goodlad, L.
Goschen, V.
Greaves, L.
Hamwee, B.
Hanningfield, L.
Harris of Richmond, B.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Home, E.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Inglewood, L.
James of Blackheath, L.
James of Holland Park, B.
Jones of Cheltenham, L.
King of Bridgwater, L.
Kingsland, L.
Kirkwood of Kirkhope, L.
Laidlaw, L.
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Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Linklater of Butterstone, B.
Lucas, L.
Luce, L.
Lyell of Markyate, L.
McColl of Dulwich, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Miller of Chilthorne Domer, B.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Murton of Lindisfarne, L.
Naseby, L.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Park of Monmouth, B.
Perry of Southwark, B.
Quinton, L.
Ramsbotham, L.
Rawlings, B.
Razzall, L. [Teller]
Rea, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Rotherwick, L.
St. John of Bletso, L.
Seccombe, B. [Teller]
Selsdon, L.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Steinberg, L.
Stewartby, L.
Stoddart of Swindon, L.
Taverne, L.
Tebbit, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Trenchard, V.
Trimble, L.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Watson of Richmond, L.
Wilcox, B.
Windlesham, L.
Acton, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Colville of Culross, V.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dear, L.
Desai, L.
Donoughue, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Giddens, L.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howie of Troon, L.
Hoyle, L.
5 Feb 2007 : Column 531
Hunt of Kings Heath, L.
Hylton, L.
Janner of Braunstone, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Listowel, E.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Patel, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Finsbury, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thomas of Macclesfield, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Varley, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Williamson of Horton, L.
Winston, L.
Woolmer of Leeds, L.
Resolved in the negative, and amendment disagreed to accordingly.
6.46 pm
Lord Ramsbotham moved Amendment No. 5:
““custody” includes being held in prison, secure mental healthcare facilities, secure children’s homes, secure training centres, immigration removal centres, court cells and police cells, and being subject to supervision by court, prisoner and detainee escort services;”
On Question, amendment agreed to.
Lord Bassam of Brighton moved Amendment No. 6:
On Question, amendment agreed to.
Baroness Turner of Camden moved Amendment No. 7:
(1) A member of senior management, responsible under section 1(3), shall be guilty of an offence if by his acts or omissions which amount to a gross breach of his duty, he contributes to a breach under section 1.
5 Feb 2007 : Column 532
The noble Baroness said: My Lords, I declare my interest as a former trade union official; my union is Amicus and I am a former member of the TUC general council.
As I explained in Grand Committee, the unions support the Bill and want to see it on the statute book but do not think that it goes far enough. Unless there are amendments, they do not think that it will be effective in improving health and safety at work. The briefing paper I received from the TUC makes the strong point that organisations do not kill people, but the action or inaction of people within them does. Directors and senior managers should be held to account for their actions or omissions. Nothing in the Bill would lead to the people making a decision resulting in a death being held liable. Both my union and the TUC believe that unless the Bill is amended to provide for individual responsibility and appropriate penalties there will be no changes in company culture to ensure that these accidents do not take place in future.
We had a good debate on this in Grand Committee, but I and my noble friends who supported me failed to get the Government to agree with us. We therefore said we would reconsider and have now done so, and come back with a slightly different wording based on the same concept. Since Grand Committee, however, it has become clear that the issue arouses a great deal of concern. My own union, Amicus, in its current journal, has expressed its disappointment that there has so far been a failure to allow for the imprisonment or heavy fines of individuals and companies found guilty of gross negligence leading to the death of employees. The article includes a photo of the gravestone of a union member said to have died tragically, a victim of corporate killing. The general secretary says that Amicus will continue to campaign for a change in legislation.
In the week following Grand Committee, an article appeared in the Times law section about the Baker report into the BP fire in Texas, in which 15 people were killed in 2005. It is headed:
“At the heart of the problem...is that our society (and we probably mean Anglo-Saxon societies here) continues to shy away from making individuals accountable for corporate failure”.
The article quotes a lawyer, who says:
“The Enron case illustrates that if a senior executive is guilty of fraud then he faces a long term of imprisonment. But if his or her conduct leads to death then there is nothing more than a company fine”.
That was my point during the argument for my amendment in Grand Committee. The article further says:
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Another comment quoted in the article from a lawyer who has been actively involved in the area is that:
“Personal liability would focus the minds of directors and ensure that they placed the health and safety of workers and the public at the very top of their ... agendas. That way, we might see a reduction in tragic but avoidable accidents”.
yet the Bill presents an opportunity for real change.
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