Criminal Justice and Courts Bill

Lord Kennedy of Southwark Excerpts

Monday 14th July 2014 Lords Chamber

The code that we suggest in all three types of offences is a logical one. It would preserve the distinction between first and subsequent offences for minor offences that were either summary or not on the list of more serious offences that were triable either way. I commend Amendments 21 to 23 to the House. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, this group of amendments applies to Clause 15, which concerns the use of cautions. Cautions have been used for many years as an effective tool in the toolbox of the police officer and the criminal justice system in general, to give a proportionate response to low-level offending where the offender has admitted the offence. There have been issues where it looks as though cautions have been used for offences that look to warrant a more serious response. The public rightly get concerned about reports of cautions being used in cases of serious violence or sexual offences.

I should say first that the Opposition support the sentiments behind the clause. Our amendments in this group, and our intention to oppose that the clause stand part of the Bill, are just to ensure that there is a debate in your Lordships’ House and to probe and test the Government’s thinking on these matters at this stage. Depending on their response, we may want to bring some of this back on Report.

The amendments moved by the noble Lord, Lord Marks of Henley-on-Thames, were interesting and may prove to be a better way of dealing with the issues at hand. However, I do not want to come to a conclusion on that matter just yet; I want the issue probed much more in your Lordships’ House.

It would be helpful, certainly to me and perhaps to the whole House, if the Minister could set out in responding what he thinks the exceptional circumstances are. On the point made by the noble Lord, Lord Marks, about the public interest, I need to know what the difference is and where both noble Lords are on this question. If the Minister could give us some indication of that, I would be very grateful.

Will the Minister help me further? Clause 15(2)(b) talks about,

“the consent of the Director of Public Prosecutions”.

Will it be the DPP or his staff who decide these matters? If that is the case, is the noble Lord, Lord Marks, not correct that the regional prosecutor may be the right person to go to? His amendment may have some merit on this issue.

The amendment in the group tabled in my name and those of my noble friends Lord Ponsonby and Lord Beecham would insert the word “senior” before “police officer” in Clause 15(5). We still leave it as the decision of the Secretary of State to specify the rank by order, but putting the word “senior” in the Bill makes it clear that Parliament’s intention is that these important decisions to create an exception—to determine whether exceptional circumstances have to merit this decision—need to involve a senior officer.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I understand that I am speaking after my Front Bench friend, but I want to make a couple of points. I understand from the noble Lord, Lord Marks, that the general intent of this group is to lower the hurdles by which cautions would be administered as a whole. He set out very clearly a different approach, but I think it is right to say that it is a lowering of the hurdles as a whole. As he said in his introduction to the amendments, we have seen a reduction in the number of cautions which have been administered in recent years.

I want to make a point that I have made in other contexts. The Government have set up scrutiny panels to review the appropriateness or otherwise of cautions that have been put in place. I thank the Minister for writing to me about this scheme. There are various pilot schemes which are following models in different parts of the country. They are in their very earliest stages and do not cover the whole country. Therefore my question for the noble Lord, Lord Marks, is about whether it is a bit premature to bring these sorts of amendments forward, when we do not have a proper answer to the question about whether the scrutiny panels are properly reviewing cautions and whether the group of people who sit on those scrutiny panels are satisfied that cautions are being appropriately administered. We do not even know exactly how those scrutiny panels will report their findings, let alone what those findings are. I understand that this is a debating point and that these are probing amendments, but I wonder whether putting forward this alternative approach is a bit premature.

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[Lord Kennedy of Southwark]

Could the Minister reflect on the comments that he made earlier? I am sure that we will come back to this on Report. He talked about exceptional circumstances and the noble Lord, Lord Marks, talked about the public interest, but we need a bit more information rather than just saying that these are operational decisions. We may be poles apart here, or it may be nothing at all, but I want to test that further. Perhaps we can come back to that on Report.

[Lord Marks of Henley-on-Thames]

I suspect that the noble Lord, Lord Kennedy, has hit on the heart of this. I agree with my noble friend the Minister that it might have been sensible to deal in this group of amendments with Amendment 25 and the subject of the level of police officers. Perhaps, left as it is, we will deal with it later.

I suspect that my noble friend’s answer has not dealt with the gap that may exist between a prosecution that a prosecutor takes the view is not in the public interest and a case in which there are no exceptional circumstances, so that a caution is not available. My suggestion to the Committee is that there ought to be a choice between a prosecution on the one hand and a caution on the other. My noble friend has not dealt with the case whereby a prosecution is not in the public interest and a caution is not available under this clause because exceptional circumstances are not satisfied.

The other suggestion that I invite my noble friend to consider before Report is whether the test of exceptional circumstances, which the noble Lord, Lord Kennedy, mentioned, and which is dealt with in a number of cases relating to different statutes, is not simply too harsh, and that “contrary to the public interest” or “inappropriate prosecution” is a better test. But with those observations and knowing that my noble friend will consider it, I beg leave to withdraw the amendment.

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[Lord Marks of Henley-on-Thames]

My Lords, as I suggested a moment ago, this amendment deals with matters that we dealt with in the previous group. It would omit the provision that it is,

“for a police officer not below a rank specified by order … to determine … whether there are exceptional circumstances for the purposes of”,

Clause 15. Therefore, the amendment really goes with the amendments that remove the requirement for there to be exceptional circumstances. It also goes with the view that I expressed in introducing the previous group of amendments—that it really ought not to be simply for the police to determine a question such as whether there are exceptional circumstances to justify prosecution, therefore meaning that there would not be a prosecution but there would be a caution. It ought to be the prosecutor who takes both decisions.

I shall speak also to Amendment 26, on which Amendment 27 is consequential, merely removing the passage providing for the affirmative resolution. Amendment 26 would remove subsection (7) which provides:

“The Secretary of State may by order amend this section so as to provide for a different period for the purposes of subsection (4)(b)”.

Subsection (4)(b) simply sets out a two-year period, which is the period within which a previous offence must have been committed. I fail to see how later experience will help the Secretary of State or anyone else determine whether two years is the right period. Given the experience of the criminal courts, the Committee knows whether repetition within two years is right. Experience is unlikely to change that because there is no doubt that an arbitrary period has been selected as in more cases than not it will be judged to be about right. In some cases, an offence committed three years ago ought not to be disregarded; in other cases, an offence committed a year ago ought to be disregarded. I simply do not understand why we should need an order-making power to change that two-year period.

[Lord Kennedy of Southwark]

My Lords, as I said on the previous group of amendments, we support this clause and the intention to oppose its standing part of the Bill is just a device to enable a debate to take place.

These amendments in the name of the noble Lord, Lord Marks, would remove the power of a police officer to determine whether there are exceptional circumstances under which an individual can be cautioned, and would also remove the power of the Secretary of State to change the period of time from the current two years which can be taken into account and counted as a previous conviction. It is important to provide a police officer with the ability to make this determination. I was pleased to hear the comment about a senior police officer being involved. The proposal to remove a power of the Secretary of State in this regard is not one that we are persuaded to support. However, I hope that the noble Lord, Lord Ahmad, will explain the intention behind these powers and the government process for determining whether they should be used. What parliamentary process will be used? It is important that there is adequate opportunity for robust challenge and scrutiny of what the Government are doing. I have no other remarks to add on cautions other than to say that there is concern about their use for indictable offences. We support the intention behind the clause.

[Lord Ahmad of Wimbledon]

My Lords, I thank my noble friend for tabling the amendment. I also thank the noble Lord, Lord Kennedy, for his general support in principle for the intention behind Clause 15.

Clause 15 places restrictions on the use of simple cautions by a constable. Simple cautions provide a means for a constable to deal with a person aged 18 or over who has admitted to committing an offence in England and Wales. A caution is primarily designed for dealing with low-level, mainly first-time, offending. While the use of cautions has been falling, it is clear that there are problems with how they are being used in certain circumstances.

The Government are clear that serious offences should always be brought to court. The Ministry of Justice publishes non-statutory guidance on how a simple caution should be used and the circumstances when a caution would not be considered appropriate. These provisions stem from the simple cautions review, which was itself prompted by public concern about the apparent misuse of simple cautions by the police for seemingly serious offending behaviour. The review set out to examine the way in which simple cautions were being used and consider the need for any changes to ensure that there continues to be public confidence in the use of simple cautions.

The outcomes of the review were published in November last year and concluded that simple cautions should not be used for indictable-only offences and certain serious either-way offences. These include possession of a knife, offensive weapon or firearm in a public place, offences involving child sex abuse or child pornography, and supplying Class A drugs. The MoJ guidance on the use of simple cautions was updated as a result and provides that a simple caution should be given for these offences only where a senior police officer believes that there are exceptional circumstances. I heard what the noble Lord, Lord Kennedy, said about further discussions on this. I am sure that we will have further detailed discussions on definitions.

The guidance also makes it clear that for all other offences a simple caution should not be given where a person has been convicted or cautioned for a similar offence in the past two years. The Government have now decided to put these restrictions on the use of simple cautions on a statutory footing. This clause therefore provides that a simple caution may not be given for indictable-only offences, unless there are exceptional circumstances to be determined by a senior police officer, and the Crown Prosecution Service also needs to consent.

This clause also provides that a simple caution may not be given for certain serious either-way offences unless there are exceptional circumstances to be determined by a senior police officer. The list of serious either-way offences subject to this restriction will be set out in secondary legislation. Furthermore, for the remainder of either-way offences and all summary-only offences, the clause provides that a simple caution may not be given where the offender has been convicted or cautioned for a similar offence within the previous two years, unless there are exceptional circumstances. The clause provides for the minimum rank of a senior police officer who determines whether there are exceptional circumstances and whether the previous offence was similar to be specified in secondary legislation. The two-year period between current and previous offending behaviour may also be amended by secondary legislation.

Our priority is to stop the cycle of reoffending and ensure that serious offences are dealt with by the most appropriate method. Criminals should not get caution after caution for committing the same offence time and time again, often for serious offences. The public needs confidence that cautions are being used appropriately. This clause helps ensure that this happens and will provide clarity for front-line practitioners. In developing these proposals we have worked carefully with the police and prosecuting agencies to ensure that simple cautions are used effectively and appropriately. The clause should therefore stand part of the Bill. I give this explanation in order to highlight some of the detailed reasons for the Government’s thinking behind Clause 15.

Amendments 25, 26 and 27 would remove the Secretary of State’s power to specify, by way of order, the minimum rank of police officer who will take certain decisions. The amendments also remove the Secretary of State’s power to change the two-year period when considering previous offending history in relation to non-specified either-way offences and summary-only offences. By tabling Amendment 25, my noble friends Lord Marks, Lord Dholakia and Lady Hamwee would remove the power to specify by order the minimum rank of police officer who may determine exceptional circumstances—for example, when giving a simple caution for an indictable-only offence or a specified either-way offence, and when giving a simple caution for a non-specified either-way offence or summary-only offence where the offender has been convicted or cautioned for a similar offence in the past two years. This means that there would be no restriction as to the rank of officer that would be able to make these decisions under Clause 15(2)(a), 15(3) and 15(4). This would mean, in effect, that the most difficult decisions as to whether to administer a caution for the most serious offences, and for repeated offences, could be taken by the most junior constable. This plainly cannot be right.

The simple cautions review made specific recommendations on the rank of officer that ought to take certain decisions. These recommendations were taken forward in the revised guidance on simple cautions, published by the MoJ on 14 November last year. It is anticipated that the order-making power, exercisable by the Secretary of State in relation to determining the rank of officer who can make such decisions, will replicate the provisions of the guidance. Namely, a superintendent or rank above will need to make the decision that exceptional circumstances exist so as to give a simple caution for an indictable-only offence. In addition, an inspector or rank above will need to decide that there are exceptional circumstances that justify giving a simple caution for a specified either-way offence or for a non-specified either-way offence or summary offence where the person has been convicted or cautioned for a similar offence in the past two years. It is important that we are clear on who can make these decisions and that there are restrictions on it.

Amendments 26 and 27 would remove the ability of the Secretary of State to amend the two-year period within which repeat cautions should not normally be given in relation to non-specified either-way and summary-only offences. This is a necessary provision. We are basing the two-year period on the same period set out in the guidance published by the MoJ that currently determines how simple cautions for such offences should be given. There may in the future be reasons to extend or, indeed, shorten the time period. The Government may wish to determine that repeat simple cautions should not ordinarily be given unless there are exceptional circumstances within a five-year period or, conversely, within a one-year period. This is the first time that we are placing statutory restrictions around the use of simple cautions, and there needs to be flexibility in order to ensure that the restrictions work properly. It is also worth noting that any such order made by the Secretary of State amending the time period must be made by the affirmative resolution procedure, and so Parliament will have a say in any change proposed.

I know that I have given a rather detailed explanation of the Government’s position but, in doing so, I hope that I have given enough reassurance and detail that my noble friend will be minded to withdraw his amendment.

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[Lord Beecham]

My Lords, I will briefly mention Amendment 33, which I tabled in the light of representations from the Medical Protection Society over a range of issues. It struck me in particular that it was important to offer protection to registered medical practitioners who are exercising their clinical judgment, as opposed to other matters that they might, as it were, stray into. But where it is a matter of clinical judgment, that should surely be a defence which would displace the possibility of a prosecution for the range of offences set out in Clauses 17 to 22. I hope the Minister—I take it that it will be the noble Earl, Lord Howe, who will be dealing with this—will agree that it is important to protect clinical judgment in that way and that this amendment will be acceptable to the Government.

[Lord Kennedy of Southwark]

My Lords, at Second Reading I made reference to this and other clauses in this section of the Bill. I said I believed that the Government were attempting to,

“close the loophole that Professor Don Berwick identified in his review of the events that took place at the Mid Staffordshire NHS Foundation Trust”,—[Official Report, 30/6/14; col. 1620.]

although of course these amendments have much wider implications for a wider group of employees looking after vulnerable people, as the noble Baroness, Lady Finlay, outlined. These clauses were added late to the Bill during its passage through the Commons and I do not believe that they were looked at in any great depth there. As I said at Second Reading, it seemed odd to me that volunteers were not also included in these clauses, so I hope the noble Earl can address that in his reply.

We have wonderful people working in the caring professions here in the UK and we have wonderful volunteers helping people, but we must be clear that an abuser who exploits people could easily be in either group. Look at the horror story of the actions committed by Jimmy Savile. He was a volunteer at numerous establishments that were caring for vulnerable people. He was never an employee at any of the hospitals he visited but it appears he had power, influence and keys, and the system in place failed his victims for decades.

There is always the risk of unintended consequences and we need to be very careful that these clauses do not create a culture where healthcare professionals would have their normal, everyday clinical decisions open to criminal investigation, as the noble Baroness, Lady Finlay, and my noble friend Lord Beecham outlined. I do not for one minute believe that that is the intention of the Government but we have to be very careful that that is not what is created or what people believe has been created. So the amendment moved by the noble Baroness, Lady Finlay, is very welcome as she attempts to bring clarity to the issues and talks about,

“a serious and substantial departure from the duty owed by the care worker to the individual in all circumstances”,

that,

“causes the avoidable death of, or serious harm to, that individual”.

For the same reasons, my noble friend Lord Beecham and I tabled Amendment 33, which makes it clear that clinical medical judgment exercised by a registered medical practitioner is excluded.

These are very serious matters. I hope that the Minister can address the points that I have made about volunteers and the whole question of the sanctions being applied only to the most serious cases, as well as those about harming transparency and improving excellence in care made so well by the noble Baroness, Lady Finlay, and my noble friend Lord Beecham.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, I am grateful to the noble Baroness, Lady Finlay, and both noble Lords for tabling these amendments, which give me the opportunity to explain the Government’s thinking behind these important new offences of ill treatment or wilful neglect.

The Government are clear that the ill treatment or wilful neglect of users of health or adult social care services by an individual paid to provide those services is never acceptable. It is for this reason that we accepted the recommendation of Professor Berwick and the National Advisory Group on the Safety of Patients in England to introduce a new, clear and specific criminal sanction for those guilty of ill treatment or wilful neglect. However, Professor Berwick’s original recommendation proposed that the offence should apply only in the most egregious cases, where the ill treatment or wilful neglect caused “serious harm or death”—in effect, a harm threshold. Amendment 30 would create a similar threshold by requiring both a “serious and substantial” departure from a care worker’s duty towards the victim and that the conduct must cause serious harm or avoidable death.

When we were developing these new offences, we gave careful consideration to these very issues. For us, it raised a number of difficulties. For example, if you set a harm threshold, you are effectively saying that any ill treatment or wilful neglect that fails to cause sufficient harm to meet that threshold can be tolerated. Similarly, a situation could arise where two people are subjected to the same behaviours by the same care worker with the same intent, but one is much more seriously harmed than the other. I cannot see how it can be fair that the lesser harmed victim cannot have the protection of the new offence simply because they have been fortunate enough not to suffer really serious harm.

We exposed these very concerns in our consultation on the formulation of the offence earlier this year. The overwhelming majority of those who responded supported our proposal that the offence should focus on the conduct of the care worker, not on the outcomes for the victim. The way in which the noble Baroness’s amendment is framed puts the focus of the offence back on to outcomes. Someone could be subjected to wholly unacceptable ill treatment or wilful neglect but the perpetrator could have a defence if they could show that their conduct did not meet the “serious and substantial departure” threshold of the noble Baroness’s amendment, that the harm suffered was not sufficiently serious or that the victim’s death was unavoidable.

I also have some concerns about that phrase “serious and substantial”. Guaranteeing an objective and consistent interpretation seems to be fraught with difficulty. I fear that care workers could find themselves with less certainty about when the offence might bite, rather than more.

This brings me to the other point I want to make in respect of Amendment 30. It relates to the imaginary case study that the noble Baroness put before us. We recognise that it is important that there should be clarity around the types of behaviours which will be captured under this offence, and I understand the concern expressed by some that, without this, there is a risk that care workers could be less willing to be open and honest when things go wrong.

There are a number of issues to consider here. First, and most importantly, it must be remembered that the underlying premise on which the offence is predicated is that any neglect must be wilful; that is, deliberate, or else completely reckless as to whether the conduct will cause harm. In the case of ill-treatment, the courts have interpreted this as being ill-treatment that was intentional or reckless. I can assure the Committee that this is in practice a high bar to get over. Demonstrating that that is the case to the standard of proof required in criminal law will not be easy. Nor do we want it to be. We know that the vast majority of care workers would never dream of setting out to ill-treat or neglect those in their care. In the example given by the noble Baroness, a balancing of priorities is taking place. The offence would not cover that situation, but accidents and genuine mistakes do happen, and we have formulated the offence to make it clear that such situations will not be captured by it, no matter how serious the outcome may be for the patient or service user. Care workers need have no fear that being open and honest when such an accident or mistake occurs will place them at risk of prosecution under the offence.

Other safeguards will be in place, besides the fundamental protection given by the formulation of the offence itself. As with a whole range of criminal offences, the Code for Crown Prosecutors means that a public interest test will have to be met before a prosecution is brought. Moreover, even in the unusual event of an alleged victim or their family deciding to pursue a private prosecution, the care worker has protection. They can exercise their right to refer the case to the Director of Public Prosecutions for scrutiny, who will have discretion to take over the case and close it down.

With regard to Amendments 31 and 32, I am aware that in his remarks at Second Reading the noble Lord, Lord Kennedy, raised the issue of whether the ill-treatment or wilful neglect care worker offence should include volunteers. We considered that very carefully during the development of these offences. Indeed, we again addressed the issue directly in the consultation in March. We know, of course, that it is not only formally employed care workers who can ill-treat or wilfully neglect those in their care. Sadly, it can happen in many situations, as the noble Lord rightly pointed out, but his amendments would bring a vast number of people within scope of the offence because “volunteer” has a wide interpretation. Family carers; people who provide assistance to friends or neighbours by, for example, taking them shopping or to medical appointments; people who help out in nursing homes at meal times; volunteer patient transport drivers—all such people, and more, would be caught by the amendments.

Our view is that there is a significant difference between those employed to provide these services and those who do so voluntarily. Paid arrangements give rise to a formal obligation to provide services to a reasonable standard. That represents a significant and important difference from informal arrangements, where there is no element of prescribed obligation. I am sure that it is not the intention to make subject to the criminal law all those people who, from the goodness of their hearts, are willing to give of their time and effort to help others.

I would add that we do already have in place arrangements to provide safeguards in such situations. For example, the Care Act 2014 includes provisions explicitly relating to the powers and duties of local authorities to assess and meet the needs of informal carers, such as friends and family carers. Moreover, where an individual is volunteering in, for example, a day centre or nursing home, there are nowadays statutory duties on the operators of those facilities to carry out appropriate checks on the suitability of the individual to do that work and ensure that they receive training in health and safety, safeguarding and other procedures necessary to provide protection for the users of that service. It is no longer the case that someone could just walk in off the street, offer their services and come immediately into contact with vulnerable patients or service users.

It is the Government’s view that these arrangements provide adequate safeguards in these specific circumstances in a far more proportionate way than applying this offence would do. The latter would also risk putting people off volunteering for fear of prosecution, however unlikely that prosecution might be in practice.

I turn finally to Amendment 33. Although I can readily understand the motive behind it, I have to say that I cannot agree that it is necessary, even on the “for the avoidance of doubt” basis which the amendment adopts. We have been clear from the outset that matters involving the exercise of informed clinical judgment by any healthcare professional, not just registered medical practitioners, should be outside the scope of these ill-treatment or wilful neglect offences. We addressed this explicitly during the consultation exercise and the offences have been formulated to ensure that this is the case. I reiterate my earlier remarks about the key element being that of wilfulness. There has to be intent to ill treat or neglect, or recklessness as to whether the perpetrator’s actions or omissions will cause ill treatment or neglect, for the offence to bite. For a surgeon making decisions about the relative priorities of two patients or the best course of treatment for a particular condition, the implications and effects of their decisions will be uppermost in their minds. They will be all too aware that their decision may cause further delay or discomfort in the short term, even though the longer-term outcome may be better, but in taking these sorts of decisions healthcare professionals are not deciding deliberately to ill treat or neglect. They are taking decisions in what they believe to be the best interests of the patient, taking into account other priorities. I cannot see how a doctor who can demonstrate that they have followed appropriate clinical practice and professional standards in exercising their clinical judgment would fall prey to this offence.

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Moved by

[Lord Kennedy of Southwark]

34: Clause 18, page 18, line 27, after “adult,” insert—
“( ) a director of a body corporate or unincorporated association which provides for or arranges for the provision of care as set out in paragraph (a), under specified circumstances to be set out by the Secretary of State within 12 months of this Act coming into force,”

[Lord Kennedy of Southwark]

My Lords, I will be brief. This amendment was tabled by me and my noble friend Lord Beecham. It seeks to close what we thought was a loophole in the clauses that the Government introduced here. It seeks to introduce a criminal liability on a director of a corporate body or an incorporated association for failing to sack employees who have committed an offence of ill treating or wilfully neglecting an individual in their care. That seemed to us to be a serious omission on the part of the Government. As I said in my contribution on the previous group, these clauses did not get a huge amount of scrutiny in the other place; they were added very late. We think that this is a serious omission and that the Government should look at it very carefully. The amendment is a probing one, designed to get a response from Government at this stage. We may want to come back to it on Report, but I would be grateful if the Minister could give us his views on this. I beg to move.

[Earl Howe]

My Lords, I am grateful to the noble Lord for giving me the opportunity to deal with this important issue of individual liability, where a care provider offence has been committed. Professor Don Berwick was very clear, in his recommendation on the creation of the offence, that it should apply to organisations providing care as well as to individual care workers. We completely agree with that principle; however, we have deliberately formulated the offence in respect of care provider organisations somewhat differently from the care worker offence, for two reasons. First, we wanted to try to ensure that the care provider offence could be applied to an organisation as an entity in its own right, without the need to first identify and convict an individual of sufficient seniority within the organisation’s management hierarchy so that they could be seen as the controlling mind of the organisation. That is why Clause 18 is modelled on the corporate manslaughter offence. Secondly, we wanted to ensure that the focus of the care provider offence was unequivocally on the provider organisation as a whole. We deliberately chose not to create a situation where attention could be deflected on to an individual such as a director when the offence had been committed by the organisation’s board acting as an entity, not as individuals. The intention is that the care worker offence will apply in respect of individuals, with the care provider offence capturing organisational failings that have allowed ill treatment or wilful neglect to occur.

It seems to me that this amendment would risk creating exactly that possibility of deflection away from the organisation by specifying that in certain circumstances an individual director of a care provider organisation is to be treated as a care provider in their own right, irrespective of the activities of the remainder of the board. Moreover, given the way the care provider offence is structured, I have to say that I think there would be some difficulties in making out the elements of it in relation to an individual director. For example, I fear that the historical difficulties in extrapolating the existence of a relevant duty of care from the organisation as a whole to an individual director could also arise here, and if that duty cannot be demonstrated then the offence cannot apply in any circumstances.

Nevertheless, I reassure the noble Lord that it is the Government’s policy to strengthen corporate accountability in health and social care and to hold individuals to account where they are responsible for failings in care. It is for this reason that we are introducing a fit and proper person test for directors of care providers. Directors will also be liable for the care worker offence when committed by them. Also, Clause 22(2) to (5) clarifies that a conviction for the care provider offence would not preclude an organisation being convicted for a breach of the proposed new fundamental standards for health and social care or a health and safety offence on the same facts, if this were in the interests of justice. It would therefore also be possible to convict an individual on a secondary basis for such an offence under provisions such as Sections 91 and 92 of the Health and Social Care Act 2008 or Section 37 of the Health and Safety at Work etc. Act 1974. This ensures that existing liabilities are not reduced as an unintended consequence of the new offence.

I am afraid that it seems to me that the noble Lord’s amendment would be in direct contradiction of the Government’s position on how the care provider offence should be applied. I am therefore unable to accept it. I hope that the explanation I have given will enable the noble Lord to withdraw the amendment.

[Lord Kennedy of Southwark]

I thank the Minister for his explanation. I shall reflect on it. My only intention is to protect people and staff and that, where people or companies have done wrong, we deal with them properly. The points that he outlined may provide sufficient protection and guarantees. I beg leave to withdraw the amendment.

Amendment 34 withdrawn.

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[Lord Paddick (LD)]

My Lords, I briefly rise to support the noble Lords, Lord Blair and Lord Dear, on Clause 23. I spoke on this issue at Second Reading. I do not want to repeat what the noble Lords have already said very clearly and eloquently, but one of the reasons that was given for this new piece of legislation was that it would include the corrupt activities of police officers while off duty. However, in the Plebgate case, to which the noble Lord, Lord Blair, has already referred, one officer has been successfully prosecuted and jailed for misconduct in a public office. That officer was not on duty at the time of the offence—indeed, he was not even at the scene of the event. Therefore, I should like to hear from the Minister in what way this new legislation adds to the offence that is already successfully used to prosecute police officers for misconduct in a public office.

The noble Lord, Lord Dear, has a distinguished record in tackling police corruption, particularly in relation to the West Midlands serious crime squad. I believe that if the noble Lord is opposing Clause 23 then the Minister should listen very carefully to what he has to say.

I could not put the reasons for opposing Clause 24 any better than the noble Lords, Lord Blair and Lord Condon. The arguments that they have put forward are compelling. If a series of former senior police officers in this House are saying that the provisions of Clause 24 are both unnecessary and dangerous, I respectfully suggest that my noble friend the Minister should listen.

[Lord Kennedy of Southwark]

My Lords, like other noble Lords, I want to speak to both Clauses 23 and 24 to aid your Lordships’ House.

The Opposition cannot support the noble Lords, Lord Blair, Lord Dear, Lord Condon and Lord Paddick, in opposing Clause 23. I have heard very clearly the points that they have made concerning police officers being public servants with special provisions being made for them. They are obviously highly respected individuals and public servants but, with that, they carry great responsibility and great power. Where those officers exercise that power or privilege improperly, there can be tremendous consequences for the individuals concerned. That is the concern that we have on these Benches and it is why we will support the clause as it stands.

Moving on to Clause 24, the murder of a police officer is of course a most serious crime, and it is right that anyone killing a police officer in the course of their duty should receive a substantial jail term. This clause would make that a whole life term. My colleagues in the other place supported the Government, as we do today on the Opposition Front Bench. The noble Lords, Lord Blair, Lord Condon and Lord Dear, have all been senior police officers and have all expressed grave reservations about this provision, saying that it is unnecessary. Like the noble Lord, Lord Paddick, I very much hope that the Minister will meet the noble Lords and other representatives and look at this issue very carefully. The last thing that anyone wants to do is to agree to a Bill that puts more people’s lives at risk. I am very worried about that. We must look carefully at what they have said and talk to them about this issue because it would be madness to do anything else.

These are very difficult issues. Obviously everyone wants to root out corruption at any level. Regarding Clause 23, the consequences for the victims of police corruption are very serious.

[Lord Faulks]

My Lords, this has been an excellent debate, distinguished by the contribution of four very senior and experienced police officers. Also, the helpful contribution of the noble Lord, Lord Kennedy, added to the debate. The noble Lord, Lord Paddick, is quite right: the Government should plainly listen to what police officers with such experience and who are so respected in your Lordships’ House have to say.

The noble Lord, Lord Condon, ranged over a number of issues in respect of the police. He stressed that the police were in something of a crisis at the moment but, at the same time, he said, absolutely correctly, that they need to be properly resourced and that there ought to be a competent Independent Police Complaints Commission. So far as that is concerned, the Government have given the IPCC a range of new powers. It has already received £2.4 million to strengthen its capabilities. In addition, from this financial year, we will transfer £18 million from police forces to the IPCC to enable it to do all serious and sensitive cases, including corruption work.