Report stage in the Lords
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Baroness Turner of CamdenLabour- Quote
- moved Amendment No. 16:
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Lord Wedderburn of CharltonLabour- Quote
- My Lords, I have added my name to the amendment, and I regard it as a very important matter. I very much hope that the Minister will be able to tell us that the Bill will be firmed up on the question of making it clear to the public who has failed in regard to these essential matters of safety at work. I support the amendment very strongly.
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The Attorney-General (Lord Goldsmith)Labour- Quote
- My Lords, I pay tribute to my noble friend because she has spoken persuasively in the past about the desirability of having a sanction of this sort. As a result of the arguments put forward by my noble friend and others, including in another place, we have been persuaded that adverse publicity orders would be a powerful addition to the package of sanctions in the Bill. We have tabled Amendment No. 38 in the name of my noble friend Lady Scotland, and we shall come to it later. The noble Lord, Lord Hunt, has also tabled Amendment No. 29 but, as it happens, they are not grouped together. I shall speak in more detail about Amendment No. 38 when we reach it, but I hope that my noble friend will accept that we believe it achieves what she is looking for from her amendment. In that respect, I hope that it will also respond to what the noble Lord, Lord Wedderburn, has asked for. So, if my noble friend is content to be patient to that extent, I invite her to withdraw her amendment at this stage and we shall deal with the detail of the government amendment when we get to it.
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- Baroness Turner of CamdenLabour
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- My Lords, I thank my noble and learned friend for that response. I am very glad to learn that the Government have taken seriously what has been said on both sides of the House on this issue. I am therefore happy to withdraw my amendment and await with interest what he has to say in support of his. Perhaps the noble Lord, Lord Hunt of Wirral, is moving in the same direction. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 4 [Military activities]:
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Lord Bassam of BrightonLabour- Quote
- moved Amendment No. 17:
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Lord HenleyConservative- Quote
- moved Amendment No. 18:
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- Lord Bassam of BrightonLabour
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- My Lords, I am grateful to the noble Lord, Lord Henley, for the way in which he has moved the amendment. I accept that noble Lords opposite have moved on from their earlier position on this matter and have adopted what one can fairly describe as a more novel approach. Clause 5 provides exemptions for the police when they are engaged in operational activities. The exemption also extends to other public authorities that engage in policing activities. Our starting point for this exemption was to look at the situations where the civil courts have decided to impose duties of care on the police. The civil courts have exercised great caution over making judgments about how and when the police should have acted. Having considered this carefully, we took the view that they were right and followed that in framing the exemption in the Bill. The exemption in subsection (3), which the amendment tabled by the noble Lords, Lord Hunt and Lord Henley, would remove, excludes policing and law enforcement activities generally, but does not exclude duties owed as employer and occupier in those circumstances. The civil courts have taken a cautious approach to extending duties of care to the police when they are engaged in operational activities; for example, they have declined to extend duties of care to situations where the police have failed to catch serial killers. We believe corporate manslaughter merits a similarly cautious approach. There are two main reasons why the courts have been cautious: first, that the courts may be ill equipped to judge certain decisions; and, secondly, that to expose the police to liability for decisions about police operations could seriously distort their priorities. Those arguments are especially relevant to the type of case where the police are being called to account for a failure to protect the public from violent people. For example, in such a circumstance, the courts would have to consider all the reasons why the police did not act, including weighing up the relative seriousness of the other operations that the police were dealing with at the time and whether the police had correctly prioritised their staff and resources. We do not think that the courts have the right level of expertise to engage in that sort of evaluation, especially where there are no objective standards by which to measure issues such as health and safety. We are also concerned that the imposition of liability for manslaughter might make police forces act in an overly defensive way. The issue of being risk averse was made in an earlier debate by the noble Lord, Lord Imbert. This could result in a shifting of priorities to crimes where injury to the public might occur, no matter how slight the injury or how small the risk; for example, from dealing with burglaries to attending every incident of a threat to kill, no matter how unlikely the threat. I recognise that these arguments carry particular force when considering holding the police to account for failures to prevent killings, where the label of manslaughter would also seem especially inapt. However, we do not think it is straightforward to distinguish this type of policing operation from another where the case for an exemption may be less strong—errors of commission rather than omission. The police do not engage in operational activities except when fulfilling duties to protect the public and enforce the law, where operational choices need to be fairly made. Targeting proactive errors rather than failures might encourage the police to prefer inaction over decisive intervention. We do not want that, so we have drawn a clear line around all policing and law enforcement activities and carefully excluded them from the scope of the offence. The noble Lords propose an alternative solution that would ensure juries take into account the particular circumstances the police find themselves in—including the nature of the operation, resource constraints that applied at the time and other public interest considerations—when assessing whether a breach has been gross. Although this might in some respects appear an attractive proposition, it is not practical or realistic to expect the prosecution to be able to put before the courts all the considerations that the police had to take into account when balancing their resources in order to deal with any particular incident. Nor would such a solution give the police the clarity they need in terms of when the offence will apply to them. We have been careful to ensure that potential defendants are clear about the circumstances in which they may become liable for this offence. For the police, there are circumstances where no duty of care would be found by a civil court but the position under the criminal law would be uncertain. This very uncertainty could lead the police to act in a risk-averse way, with all the attendant dangers. On the amendment about hazardous training, the police have to undergo the hazardous training to prepare for dealing with serious disorder. The example used in Grand Committee was where the police experience real petrol bombing in training to deal with riots. The police must be able to experience that sort of training to fully prepare them for the unfortunate but occasional events which exist as a real threat on our streets. That does not mean, however, that all hazardous training undertaken by the police should be excluded from the offence. As the noble Lord, Lord Henley, pointed out in Grand Committee and this evening, there is an agreement between ACPO and the Health and Safety Executive about how the HSE’s role in police hazardous training generally operates. In general, hazardous training should come under the offence, and as the Bill is drafted it will do so. To take two examples from the Met Police’s book of remembrance for officers, two officers are recorded as having died in the course of training in the past 30 years. In one case, an officer drowned during underwater search training and, in the other, an officer was killed in a car crash during training with the stolen vehicle unit. In both cases the training was indeed of a hazardous nature. However, neither case would have been excluded on the basis of this exemption because, while hazardous, it was not being carried out to improve effectiveness in dealing with terrorism and other similarly serious circumstances. This sort of training will often be focused on enabling officers to carry out hazardous activities as safely as possible in the circumstances, through evaluating risks and making decisions about whether to continue the activity. The difference between this type of training and riot training is about the extent to which the training environment can be controlled and yet realistic. Officers involved in riots cannot decide to stop because it has become too dangerous, so riot training will be in a less controlled environment. The use of real petrol bombs will also mean that outcomes are less predictable. We do not want the police and other law enforcers to undertake training which is artificial and avoids risky situations so that the first time the police experience a riot is in a genuine riot. That would be counter-productive and put officers at greater risk because they will be unprepared for dangers. To summarise, the offence is fundamentally about the proper management of health and safety, not the adequacy of the way public bodies discharge their statutory responsibilities. That is not, of course, to argue that police decisions are always right. They may and do get things wrong. When they do, they can be held to account by the Independent Police Complaints Commission, independent inquiries and, of course, through the tripartite arrangements with police authorities and the Home Secretary. Individual officers are also fully subject to the criminal law, but extending criminal liability over operational matters to the police as a body is unnecessary and could distort policing priorities in a damaging and counter-productive way. For those reasons, we continue to resist the noble Lord’s amendment, clever though it is.
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- Lord HenleyConservative
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- My Lords, I am very grateful to the Minister for giving us that long explanation of a relatively brief amendment. I thought that we were putting forward a simple and fairly small improvement to the Bill, but the Minister does not accept that. It is probably too late to take it any further. I am grateful to the noble Lord for taking us through all the points that those advising him think we ought to be taken through. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 19 and 20 not moved.]
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Lord Hunt of WirralConservative- Quote
- moved Amendment No. 21:
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- Lord Bassam of BrightonLabour
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- moved Amendment No. 22:
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- Lord Hunt of WirralConservative
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- moved Amendment No. 23:
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- Lord Bassam of BrightonLabour
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- My Lords, I shall see whether my arguments lack traction. I will try to deal with the points made by the noble Lord, Lord Hunt. Before I do perhaps I should set the amendment in context. The amendment to the clause requires us to do that. The purpose of the clause is to make it clear that a narrow range of organisations will not be liable to prosecution for corporate manslaughter regarding actions that they take in response to emergency circumstances. That means that matters such as the time taken for the emergency services to arrive on scene, the number of personnel determined to attend, and the effectiveness of how the emergency situation is handled are excluded from the ambit of the offence. The value of this exemption is that it gives clarity to the emergency services about where their liabilities for manslaughter lie. In most circumstances the organisations listed would not owe a duty of care in terms of their responses to emergencies; so even without the exemption they would not be subject to this offence. There are some situations where that would be open to question. It could lead to uncertainty in the emergency services and could encourage a culture of undue risk aversion. That would not be in the public interest. The amendment tabled in the name of the noble Lord, Lord Hunt of Wirral, seeks to widen the extent of this exemption. At present, the exemption applies only to organisations that are, in effect, providing a public service when responding to emergency circumstances. But as I think the noble Lord, Lord Wedderburn, noted in Committee, this is not limited to public authorities. Commercial and other organisations are covered by the exemption where they are effectively standing in for a public authority. The exemption also applies to a range of other organisations such as Mountain Rescue and the Royal National Lifeboat Institution, which are not part of the public sector but, as we all understand, effectively perform a public role and a public duty. The noble Lord, Lord Hunt, proposes that we should go further than this and exempt all organisations employing firefighters or protecting life and property in the event of a fire or responding to other emergency circumstances. As I understand it, his argument is that private and public bodies face exactly the same risks at the scene of an emergency and so they should benefit from the same protection from liability. I agree that the task of responding to an emergency such as a fire presents the same challenges for either public or private firefighters, but this exemption is not only about the management of difficult emergency situations involving split-second decisions taken at the scene of an emergency; it is also directed at wider issues such as the time it takes the emergency services to arrive on scene and the number of personnel deployed. It is in relation to liability for decisions about the management and allocation of resources that we think there is a difference between organisations providing services solely on a commercial basis and those subject to wider public considerations. Unlike commercial operators, the statutory fire service does not choose to offer fire-fighting capacity on a contractual basis and it cannot withdraw its services from the market if it finds its resources are overstretched. By contrast, commercial organisations can choose the terms of the contract with the client and on that basis agree the service that they are able to supply. They can also withdraw their services if there is a risk that resources could not be matched to demand. If, therefore, a commercial organisation fails grossly negligently to meet the terms of the contract, we are not persuaded that it would be right to exempt it from liability. It is also worth bearing in mind how duties of care appear to fall in the common law. The courts have recognised that public rescue authorities do not usually owe duties of care in respect to the way they respond to emergencies, but it is not at all clear that the same considerations apply in respect of private companies providing services on a contractual basis. We have therefore taken the approach that where private organisations are effectively performing a public role, their liability should be comparable to that of public rescue authorities, but the Bill does not otherwise remove existing liabilities for manslaughter. Having heard some of the arguments we prepared earlier, I hope the noble Lord will feel able to withdraw his amendment.
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- Lord Hunt of WirralConservative
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- My Lords, I congratulate the noble Lord on coming forward with some very persuasive arguments. I have increasing respect for his job application to be a noble and learned law officer because he has put up one of the best performances of the day. In those circumstances, I have no hesitation in seeking to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord Bassam of BrightonLabour
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- moved Amendment No. 24:
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- Lord Bassam of BrightonLabour
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- moved Amendment No. 25:
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Lord James of BlackheathConservative- Quote
- moved Amendment No. 26:
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- Lord Hunt of WirralConservative
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- My Lords, I strongly support my noble friend. We are very grateful to him for making this very important point, which Ministers seem to have neglected. As he said, trustees of charities play a crucial role in the well-being of a healthy society. Many of them, of course, serve more than one charity in this way. Although the new offences that the legislation will create are in essence corporate by definition, I believe my noble friend has a good point; those who serve unpaid as trustees may be troubled by the thought that the range of their already onerous responsibilities may be expanded still further by the legislation. I very much hope that the Minister will be able to put our minds at rest.
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- Lord GoldsmithLabour
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- My Lords, I strongly believe that I can put minds at rest, but not, I am afraid, by accepting the amendment. I entirely understand the concern of the noble Lord, Lord James of Blackheath, that we do not want people to be deterred from taking on the important role of trustee in a charity. I fully acknowledge that many people bring with them skill, experience, enthusiasm and energy, which can be of huge benefit to the people who are the subjects of the charity, both here and overseas. The noble Lord painted a terrifying picture of humanitarian aid being cut off as the British public turned their backs on charities. If I thought for a moment that the Bill would do that, I would be very anxious to find a way of dealing with it. I do not think that, and I want to set at rest the mind of the noble Lord, Lord Hunt of Wirral. The most important point to make is that the concerns expressed by the noble Lord, Lord James, are about the possibility that trustees, as individuals, might be guilty of an offence under the Bill. They cannot be. As the noble Lord, Lord Hunt of Wirral, rightly says, the Bill by its definition deals with corporate responsibility. Clause 1 identifies the organisations to which the offence applies as, “a corporation … a department … a police force”. Now we have added specified categories of unincorporated associations; partnerships, trade unions, and employers’ associations. At no point does it include an individual. Indeed, that point is made clearer by our debate on Amendments Nos. 7 and 8 on the possibility of secondary liability. As my noble friend Lord Bassam made clear, the Government do not accept that the Bill should impose liability on individuals. Clause 16, which some noble Lords want to take out, says very clearly: “An individual cannot be guilty of aiding, abetting, counselling or procuring the commission of an offence of corporate manslaughter”. So the offence remains that against an organisation only. The Bill cannot create an offence against an individual, whether a trustee or anyone else. That does not mean that individuals might not be liable for existing criminal offences, but that liability exists already and the Bill does nothing to extend it. I hope that the noble Lord will accept the clear assurance that the Bill does not touch on the liability of individual trustees. I was slightly surprised to hear what he said about the Charity Commissioners. I say this simply so that he knows. I know that he has discussed the matter with them, but I am told that they are satisfied that no further clarification of the Bill is necessary. To that extent, he takes a different view, but that is what I am told their position is. The noble Lord may say, “That is all very well, but wouldn’t it be a good idea to make it clear in the Bill?”. That is absolutely unnecessary, but there is always a risk, because as soon as you include in the Bill a provision that something does not apply to something that it would not otherwise look as though it does, you start to give rise to all sorts of doubts about what the other provisions actually mean. We have been very clear that this is corporate legislation; it is not directed at individuals. To claim that one category of individuals is not covered might raise doubts about whether other categories of individuals are covered. I invite the noble Lord to accept that assurance. I hope that he will be able to withdraw the amendment.
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- Lord James of BlackheathConservative
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- My Lords, I am grateful for the explanation. The problem is that, to some extent, the damage has been done already because the Charity Commission has, with its legal advice, already circulated to all charities that contain a corporate entity a notification that they are within the jurisdiction of the Bill. That opinion has been confirmed to everyone in Baker Tilly’s and Eversheds’s client base. This is where the problem starts. Nobody reading in Hansard the discussions on Amendments Nos. 7 and 8 will go to bed with an easier mind regarding the scope and intention of the Bill hereafter. I do not think that those debates will ease the situation. The noble Baroness, Lady Scotland, in her helpful letter to me, accepted my comments about the unhelpfulness of the Home Office notes and said that they were subject to revision and review. If the Government are not prepared to put the proposed new clause into the Bill, I suggest that they include in the Explanatory Notes a paragraph describing the role or non-role of charities.
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- Lord GoldsmithLabour
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- My Lords, I hope that the House will permit me to clarify a point that I hope the noble Lord has not misunderstood. Corporations are covered by the Bill but individuals are not. An individual trustee is not covered by the Bill; a corporation, whatever its form, can be covered. I hope that that is clear enough.
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- Lord James of BlackheathConservative
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- My Lords, I hope that time and circumstances do not make us regret any foreshortening of this debate, because there is fear in the minds of a very dying breed of quality trustee. We do not wish to see that breed become extinct because of the anxieties that the Bill creates, any more than we wish to see them curtail the activities of their charities. Only time will tell what damage will be caused. My concern is that we will not set people’s minds at rest. I accept that the Bill relates to boards not directors, but much of our debate will not give peace of mind to directors looking at what consequences may fall on them as a result of these debates. I hope that the Government will consider using the Explanatory Notes to provide a better description. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 8 [Factors for jury]:
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- Lord GoldsmithLabour
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- moved Amendments Nos. 27 and 28:
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- Lord Hunt of WirralConservative
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- moved Amendment No. 29:
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- Lord Wedderburn of CharltonLabour
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- My Lords, Amendment No. 38 is an enormous improvement. The Government have had a bit of a rough time today and the House must give credit where it is due. Amendment No. 38 is excellent and I am very happy to support it.
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- Baroness Turner of CamdenLabour
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- My Lords, I also am very grateful to the Government for this new clause, which covers more or less everything in our original amendment. I am very pleased that we have had this kind of response from the Government today.
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- Lord GoldsmithLabour
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- My Lords, that is an improvement. I shall deal quite briefly with this. I shall explain the government amendment and I thank the noble Lord, Lord Wedderburn, and my noble friend Lady Turner for their support. As I indicated, we have been persuaded by the arguments put forward; namely, that publicity orders are valuable. I should like to touch on one aspect of the amendment proposed by the noble Lord, Lord Hunt, which is not covered in our amendment, to explain why we do not go along with that part of it. He proposes that: “Any penalty … shall be notified by the court to the Registrar of Companies and the Registrar of Companies in Scotland”. They do not currently have a function of registering that sort of order. What is more, that could not be applied to any of the entities now capable of being convicted of the offence which are not registered in that way. But I do not think, and I hope that the noble Lord will agree, that that detracts from the benefit of the government amendment. Under our proposed amendment, any organisation could have imposed on it such an order, which would be flexible. The court could decide in just what way the conviction should be publicised, including requiring it to be identified in some way in the annual report. Of course, if it is in the annual report, which is then registered at Companies House, it will be available in that way. I am glad that the noble Lord, Lord Hunt, has also drawn attention to the element in the government amendment that requires the consultation with the enforcement authorities and the prosecution. The enforcement authority might, for example, be the Health and Safety Executive. I agree with the noble Lord that one of the benefits of proceeding in this way is that the views of the victim or representatives of the victim could be ascertained. I thoroughly support why he said that ascertaining such views at the time of sentence in order to understand the impact is important; I strongly impose that on prosecutors. I am glad he supports that. We expect, in a number of cases at least, that the relevant regulator and/or the prosecution would propose what sort of order might be appropriate so that the judge has that idea. Obviously the defence will be in a position to make representations in response. The judge will then determine the terms of the order and the exact form it will take. It is likely that some guidance may be needed on the kind of orders that would be appropriate, but we certainly do not want to hold up this legislation for such guidance to be produced. I slightly apprehend that the noble Lord put a question to me that I may not have addressed. He is shaking his head and I am glad about that. Technically, therefore, I invite him to withdraw his amendment, and I will move Amendment No. 38 when we get to it in the Marshalled List.
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- Lord Hunt of WirralConservative
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- My Lords, the only outstanding point concerned the enforcement authority, but I believe that the noble and learned Lord answered it. I see that I have in fact appended my name to the government amendment, so there may be a contest between the two of us when the Deputy Speaker comes to seek who is to move it. However, so far as the noble and learned Lord’s response is concerned, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 9 [Power to order breach etc to be remedied]:
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- Lord GoldsmithLabour
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- moved Amendment No. 30:
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- Baroness Turner of CamdenLabour
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- My Lords, I have tabled Amendments Nos. 31 and 36 and I assume that in a sense the government amendment suggesting a remedial order is one way of responding to some of the comments made in Grand Committee. I moved then an amendment similar to this one, and I got the impression, from, I think, my noble friend Lord Bassam, that the comments I had made would receive attention. Indeed, they seemed to be sympathetically received. I was pleased to see this set of amendments, but there are certain differences. In my amendment I wanted to identify a person or persons within the organisation who would have the responsibility for seeing that the steps that had to be taken were actually taken, and to ensure that that person should have the responsibility to report back to the court. If he did not take the necessary steps or report to the court, there would be possibilities of action for contempt. It seemed to me at the time that those were sensible steps that could be taken after a very serious incident to ensure that there would be monitoring of the situation by the court so that the incident was not likely to recur, and that there would be plenty of opportunity for the court to ensure that the proper steps had been taken. Those are the reasons for my two amendments, but I accept that the propositions advanced by the Government answer to some extent the problems we raised in Grand Committee. I do not intend to press our Amendments Nos. 31 and 36 this evening, although I still believe that identifying someone with responsibility and ensuring that it is followed up is one of the best methods. On the other hand, I know that the Government have taken a different view as far as personal liability is concerned, and this stems from that attitude throughout the Bill. I will not therefore be pressing my amendments today.
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- Lord Hunt of WirralConservative
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- My Lords, there have been a number of speeches, both in this House and in the other place, expressing considerable unease about remedial orders as originally set out in Clause 9. Without doubt, the proposed amendments, which the noble and learned Lord the Attorney-General has already referred to, now greatly improve the drafting of the Bill and make matters far more clear. The noble and learned Lord may have noticed, however, that whereas, in the interests of good will and consensus, I have added my name to a number of government amendments, in this instance I have not done so. That is because I still believe the crucial question is how to make these orders work while avoiding any measures that a fair-minded person might deem to be disproportionate. I confess that I am still quite torn when looking at Amendment No. 36, in the name of the noble Baroness, Lady Turner of Camden, because that seems to be a step in the right direction. If these orders are to be effective, responsibility for them must be clearly allocated and accountability established. We are dealing with corporate offences here, however, and on that basis we must focus just as clearly on corporate redress and corporate answers to the problems that have led to death. On balance, and with some reluctance, I am of the view, which I believe I share with the noble and learned Lord, that corporate measures will, and must, suffice.
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- Lord GoldsmithLabour
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- My Lords, I am grateful to both my noble friend and the noble Lord. Having spoken to the amendment already, I want to make a couple of points. I have noted that my noble friend Lady Turner has indicated that she is not going to move her amendments. Notwithstanding that indication, she is still entitled to some explanation from me of why the Government are not persuaded by her arguments. That is only right. First, the noble Baroness advanced, with diligence and clarity, the desirability of naming an individual to be responsible in effect for enforcement. While listening carefully to that argument, the Government have two problems with it. One of them is that which the noble Lord, Lord Hunt of Wirral, has identified: this is a corporate offence, and imposing the responsibility for compliance on an individual may rather confuse that issue. The second problem is a practical concern. Given that it is a corporate responsibility, one would not want others in the corporation’s management to feel that it is nothing to do with them. There is something of a risk that if you identify a single individual, others may not feel that it is their responsibility. The Government take a different view on that from my noble friend. The second point is my noble friend’s proposal that the courts should be able to require a convicted organisation to report back to them with details of the remedial steps taken. I can see why my noble friend advocates that, and I can see certain attractions in following that course, but it is not the way that our courts operate. They do not monitor compliance with sentences; whether they ought to in other areas is an interesting question. The closest we come to it is in relation to the very different area of drug testing orders, where there is some compliance by the courts. I had better not go too far down that particular road, save to say that it would be quite a departure for our courts to take on the responsibility of enforcing this sort of order. However, we anticipate that regulators, particularly those who have been involved in the prosecution and consulted on the sanctions to be imposed, as we discussed in a previous amendment, are likely to look closely at whether the remedial order is carried out. That is a pretty strong safeguard. I am not without sympathy for my noble friend’s point and the reasons behind it. I am grateful to her for indicating that she will not press her amendments, and hope that I have explained the position.
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- Lord Wedderburn of CharltonLabour
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- My Lords, before the Minister sits down, is there not a third factor as well? Identifying a person will lead the Government to reconsider the secondary liability of individuals, which they have so far resisted, so naturally they resist identifying anybody because it might lead them to consider who had aided and abetted this offence. These things intersect, and the sooner the Government rethink the question of secondary liability, the better.
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- Lord GoldsmithLabour
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- My Lords, that is not the reason for resisting the amendments. I am not sure what the proper expression is in this House for “Good try”, but I am not going back on what was said by my noble friend Lord Bassam. On Question, amendment agreed to. [Amendment No. 31 not moved.]
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- Lord GoldsmithLabour
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- moved Amendments Nos. 32 to 35:
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- Lord GoldsmithLabour
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- moved Amendments Nos. 37 and 38:
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- Lord GoldsmithLabour
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- moved Amendments Nos. 39 and 40:
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- Lord GoldsmithLabour
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- moved Amendment No. 41:
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- moved Amendment No. 42:
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The Earl of Mar and KellieLiberal Democrat- Quote
- moved Amendment No. 43:
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Lord Davidson of Glen ClovaLabour- Quote
- My Lords, I am grateful to the noble Earl, Lord Mar and Kellie, for raising the important issue of how the offence will operate in Scotland. It is useful to provide an explanation as to why the approach of corporate homicide has been adopted in Scotland. Similar difficulties are involved in the prosecution of companies in Scotland for culpable homicide as exist for prosecutions against companies for manslaughter in England and Wales and Northern Ireland. The Scottish Court of Criminal Appeal in the Transco case confirmed that the identification principle applied under Scots law as the basis for finding a company guilty of culpable homicide, and, as in English law, the appeal court also expressly stated that the law of Scotland does not recognise the principle of ‘aggregation’, which would allow the conduct and states of minds of a number of people over a period of time to be considered collectively. Colleagues in the Scottish Administration are equally determined that the law should be moved on to a new and effective footing. The problems posed by the current law have been considered comprehensively in both jurisdictions—in England by the Law Commission and then public consultation and pre-legislative scrutiny, and in Scotland, by an expert group set up by the Scottish Executive. The solutions that were arrived at had differences, but also common themes: the need to replace the identification principle with a new test for liability, the application of the offence to the Crown and an element of management failure to fix corporate liability Clearly it is important that the new offence fits properly into the structure of Scots criminal law, and the Bill is drafted to achieve this. Perhaps most obviously, the offence will be known as corporate manslaughter in England and Wales and Northern Ireland but corporate homicide in Scotland. This reflects the different language for homicide offences in the two jurisdictions. There are other examples dotted throughout the Bill. But I submit that this amendment goes beyond recognising differences in the Scottish legal system and proposes a fundamentally different approach to the new offence for Scotland. We are reluctant to go down that route in a reserved area. It would mean, for example, that companies would be operating under different regimes north and south of the Border. We also have a number of reservations about how the different offence for Scotland would work. The heart of the problem for both jurisdictions lies with the identification principle. This Bill takes a significant step in removing that obstacle. I am concerned that this amendment would replicate at least some of the existing problems. It is difficult to see how the test for recklessness, which is based on being aware of a risk or being in a position where a risk ought to have been appreciated, could be applied to a company other than through the conduct of specific individuals. Indeed, the amendment appears to contemplate that the court would need to identify particular senior managers who had been reckless. However, that would reintroduce the very element of identification that we are trying to get away from. As the Bill stands, the offence focuses on how activities were being managed across an organisation, at senior and junior levels and in terms of the systems and processes in place, not who was managing them. That is the fundamental shift in the law that the Bill offers but, with respect, this amendment would significantly undermine that change in Scotland. We also think that it is right to underpin the new offence with the concept of gross negligence across the UK, including Scotland where gross negligence in fact formed part of the common law on culpable homicide in Scotland at least until the mid-20th century. The sanction of admonition is already available pursuant to Section 246 of the Criminal Procedure (Scotland) Act 1995, where a court may dismiss with an admonition any person convicted by it of an offence. Pursuant to that same Act, “no compensation order shall be made in respect of … loss suffered in consequence of the death of any person”. But I understand that the Scottish Executive is currently considering a report from the Sentencing Commission for Scotland on financial penalties. As part of that work the Executive is considering the issue of compensation orders. Any changes to that legislation would, of course, properly be a matter for the Scottish Administration. In summary, I am grateful to the noble Earl for raising the question of how the offence will apply to Scotland. I hope that I have been able to satisfy him that it is both appropriate and desirable for the new Bill to apply across the United Kingdom in the same terms and I urge him to withdraw his amendment.
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- The Earl of Mar and KellieLiberal Democrat
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- My Lords, I am grateful to the noble and learned Lord for that explanation. I am not convinced that I necessarily understood it all but I suspect that I shall when I read it tomorrow. In those circumstances, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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Lord CotterLiberal Democrat- Quote
- moved Amendment No. 44:
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- Lord Bassam of BrightonLabour
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- My Lords, as the noble Lord, Lord Cotter, has set out very clearly, this amendment proposes that there should be a specific duty on the Secretary of State to communicate details of this legislation to the public and to the organisations that will be affected by the new offence. We agree that it is very important that everyone should be aware that this new offence is coming, and the publicity that has surrounded the Bill so far has helpfully prepared the ground for that. It is also vital, as the noble Lord said, that organisations should be given time and guidance to enable them to understand how this offence will work and to help them to make sure that their houses—their businesses and enterprises—are in good order. To that end, I can give the noble Lord the assurance that I think he is seeking. The Government will be working closely with a whole range of organisations and agencies—including business associations, trade unions, and bodies within government—to ensure that those affected by the new offence will be informed and prepared. The one key message that we want all organisations to understand is that the new offence is firmly linked to the existing framework of health and safety legislation—that is where it should rest—which binds all organisations subject to the offence. They have nothing to fear from this legislation if they are taking their existing responsibilities seriously. By very clearly building on health and safety legislation, we have made sure that those organisations which already comply with their statutory responsibilities will not fall foul of the new legislation. Another important message here is that the time is up for those organisations which pay scant regard to those responsibilities. The Government are strongly committed to safety in the workplace and to having effective laws in place to prosecute organisations whose neglect of health and safety leads to injury and occasionally to death. The Bill creates a more effective basis for prosecuting organisations for manslaughter. It will no longer be the case that organisations can escape liability for this most serious offence through corporate liability hinging on the identification principle. I entirely appreciate the points that the noble Lord makes in respect of the importance of communicating accurately and clearly what the impact of this new offence will be. But I disagree with the suggestion of imposing a duty on the Secretary of State to communicate this to the public; that would be unprecedented and ultimately unnecessary. We will take every care to ensure that this new offence is implemented carefully and responsibly and that the organisations affected by the offence and the wider public will have access to information about its effects. We also hope that the very fact of this new offence will make it clear to everyone that health and safety must be given the priority that it deserves within the organisations that it impacts upon and that, in future, those organisations will be held criminally responsible when their gross negligence results in death. I hope that that gives the noble Lord the assurance that he seeks. We will be taking seriously the question of information about the new offence. I believe it is fair to argue that, given the publicity that has surrounded the Bill, the Bill’s long gestation, the careful consultation, the commitment that we have had from many organisations that they will support the Bill and the fact that it has a good measure of cross-party consensus, people will well and truly know about this legislation and about its import and impact.
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- Lord CotterLiberal Democrat
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- My Lords, I thank the Minister for his reply and for his assurance that great attention will be given to publicity. I also thank him for the robustness with which he addressed a number of points. An important factor regarding the publicity is that people are aware of it and that they adjust their behaviour accordingly. On that basis, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 15 [DPP’s consent required for proceedings]:
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- Lord CotterLiberal Democrat
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- moved Amendment No. 45:
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- Lord Bassam of BrightonLabour
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- My Lords, the Government believe that requiring the consent of the Director of Public Prosecutions is an important part of the Bill. A key feature of this offence is that it will mark a particularly serious level of offending by an organisation. It is important that this truly is reserved for the worst cases and that the deterrent effect of possible proceedings is not reduced by very poor cases being brought against organisations. Furthermore, potential defendants have been concerned that every work-related death will result in a charge of corporate manslaughter and that companies which pay proper attention to the management of health and safety will have their reputations damaged through manslaughter charges, even though the charges are bound to fail. Part of the reassurance that only the worst cases of health and safety failures will proceed to court is that the DPP must be satisfied that in every case the evidence supports a realistic prospect of conviction. Requiring the DPP’s consent does not prevent private prosecutions but it ensures that such prosecutions will be able to proceed only if the two-stage test in the Code for Crown Prosecutors is satisfied; namely, that the state of the evidence is such that there is a realistic prospect of conviction and that a prosecution will be in the public interest. As we have said before, where the allegation is manslaughter, we think that only rarely will the public interest test not be met, so the main issue will be sufficiency of evidence. We do not think that allowing prosecutions to proceed where there is insufficient evidence will be in anyone’s interest—neither the organisation’s, whose reputation will be tarnished unfairly, nor the family’s, whose expectations will be raised unrealistically. By their nature, corporate manslaughter cases are likely to involve complex evidence about company structures and management, as well as about industry standards. We believe that the Crown Prosecution Service is best placed to assess whether there is sufficient evidence of the necessary standard. It is asking a lot to expect the families of victims to make that assessment objectively. There is an argument that the prohibitive costs of bringing a private prosecution in such complex cases will act as a barrier to prosecutions and that requiring the DPP’s consent is unnecessary. It is, of course, true that bringing a private prosecution will be an option only for those who can afford it. In the history of work-related deaths, we are aware of two private prosecutions for manslaughter, neither of which was successful. However, in one case we understand that the person bringing the case—a man who owned a business—was bankrupted by doing so and in the other case the person bringing the proceedings appears to have been a millionaire. Relying on the very high cost of private proceedings in itself is unsatisfactory. We do not think that ability to pay should become the criterion for whether a prosecution should proceed if there is no evidence to sustain it. The costs underline that private prosecutions are rarely a practical option and the requirement to obtain consent will operate in few cases. If the DPP does not consent to a private prosecution, that decision can be judicially reviewed and, for the vast majority of people, applying for a judicial review is going to be far more of a realistic proposition than pursuing a private prosecution, especially as legal aid is available for judicial review. There is also precedent in corporate manslaughter of a successful judicial review of a decision by the CPS not to bring a manslaughter prosecution. That case was then brought to trial by the CPS, which initially decided not to press charges, although again it was not successful. I turn to conflicts of interests, which the noble Lord raised. Would they exist in cases against the Crown or in cases against the CPS? I start by quoting the honourable Member for Beaconsfield. In Committee in another place, Dominic Grieve put the argument very well. He said: “I do not share the … view about the DPP being subject to political pressure. Never in my professional experience have I seen a hint of it. The DPP is a civil servant, but once he holds his office he cannot be removed other than for misfeasance or personal misconduct. For those reasons, I do not think that that is a live issue”. I do not always agree with Dominic Grieve but on this occasion I certainly do. He has put the position very well. It is a poor argument that the DPP will succumb to pressure not to prosecute the Crown. It is not the CPS or the DPP who will investigate a case: that will be for the police. It will be the police who gather the necessary evidence and they will then present it to the CPS for a decision about charges. So the role of the CPS and the DPP, whether consent is required or not, will be to consider the evidence, properly presented by the police, and decide whether that presents a picture of gross negligence. That is a decision they will take independently as prosecutors. The CPS, of course, comes under pressure at present from both sides in cases of manslaughter and many other cases. Defendants lobby in order to have charges dropped and victims and their families understandably press for prosecutions, sometimes with passion. But cases always have to be taken forward on the merits of the case not the pressure for or against prosecution. The Government cannot halt investigations or prosecutions simply because they are embarrassing. Furthermore, the process of judicial review will act as a safeguard, where any allegation of bias can be considered. For these reasons, I do not think that requiring the DPP’s consent will reduce victims’ rights or lead to cases against the Crown being dropped when they should not be. In view of those arguments, I urge the noble Lord to withdraw his amendment.
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- Lord CotterLiberal Democrat
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- My Lords, I thank the Minister for a very fair and comprehensive consideration of the issue which obviously concerns us. He was very reasonable in the points that he put. Despite our continuing concerns, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 46 not moved.] Clause 16 [No individual liability]: [Amendment No. 47 not moved.]
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- Lord Bassam of BrightonLabour
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- moved Amendment No. 48:
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- Lord HenleyConservative
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- My Lords, the Minister said that concern has been expressed. If he remembers, it was either myself or my noble friend Lord Hunt—I forget—who moved a similar amendment in Committee to achieve just this.
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- Lord Bassam of BrightonLabour
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- My Lords, I thank the noble Lord for having inspired us in this direction.
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- Lord HenleyConservative
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- My Lords, I am grateful that we inspired the noble Lord and the Government to do that. I thank him with all my heart for bringing forward an amendment achieving exactly what we tried to do in Committee. On Question, amendment agreed to.
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Lord Lloyd of BerwickCrossbench- Quote
- moved Amendment No. 49:
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- Lord GoldsmithLabour
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- My Lords, I am sorry to have to disappoint the noble and learned Lord because I am not persuaded by his argument. I am sorry that he was not persuaded by the arguments that my noble friend Lord Bassam put when this was considered briefly towards the end of the Committee stage. I shall deal with the amendment shortly, but I expect that I will not add to the arguments that have been advanced, and the noble and learned Lord has already indicated that he is not persuaded by them. As the noble and learned Lord acknowledged, the criminal law does not normally impose limitation periods on proceedings for serious offences. There is a limitation period for summary offences, but we do not have one in relation to serious criminal offences. It would be all the more surprising to create one in this case because we are not really creating a new offence, but are creating a variety of gross negligence manslaughter attached to a corporate body by adapting the current offence. As the noble and learned Lord recognises, there is no limitation period for the current offence of gross negligence manslaughter, notwithstanding that that is itself based on the existence of a civil law duty. So, there is no conceptual difference between those. The noble and learned Lord makes a very fair point about the need, where possible, for prosecutions to be brought expeditiously, and, indeed, makes the point that there will be cases where Article 6 of the European convention may require that to be done and there may be sanctions imposed if it is not done. What that time is will depend on all the circumstances of the case. One has to think only of some of the tragic incidents that have occurred on the railways in recent years to realise the complexity of the investigations that may take place and therefore the time that may be needed in order to reach a proper conclusion about whether a prosecution should be brought. There are all sorts of reasons why that may be complicated—inquiries and so forth. I do not fully understand and I respectfully do not accept the noble and learned Lord’s argument that in the case of an individual there is not a problem because the death will occur very quickly. I am not sure why it should not be the case, whether it is corporate or individual responsibility, that the death can occur shortly or some time later. I can see that there may be a case in relation to safety. The noble and learned Lord might have in mind asbestosis or something of that sort where it may be difficult to identify an individual who may be responsible at that point of time so that corporate liability may be the only one. But I would identify, as did my noble friend Lord Bassam in Committee, that there is a long stop—there is more than one long stop. If it were right that it were not in the public interest to prosecute in a particular case that would be a decision which the prosecuting authority, whoever it might be, would have to consider. The court clearly has an ability to stop prosecutions if it considers that it would not be right because a fair trial could not be held. It is a high test. I freely acknowledge that, and it would not by any means necessarily prevent prosecutions taking place some time after the incidents in question, but the court would have to look at it. If there needs to be some protection and safeguard, for my part I would rather that it be that flexible safeguard, having regard to all the circumstances, than an unprecedented and effectively arbitrary time limit imposed simply on this sort of criminal offence. So, for those reasons which I hope that the noble and learned Lord will not find disrespectfully put, I cannot accept the amendment and would invite him to withdraw it.
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- Lord Lloyd of BerwickCrossbench
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- My Lords, I am naturally disappointed by the response of the noble and learned Lord the Attorney-General. He has not really dealt with the beneficial results which would flow from the amendment. But there it is. In all the circumstances, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 17 [Abolition of liability of corporations for manslaughter at common law]:
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- Lord Bassam of BrightonLabour
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- moved Amendments Nos. 50 to 52:
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- Lord Bassam of BrightonLabour
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- moved Amendment No. 53:
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