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Health and Social Care Bill

I hope I make a better fist of explaining this amendment than the previous one, but I cannot guarantee it. I understand that unincorporated association status is usually chosen when a number of individuals agree or contract to come together for a common purpose, which may be of a social nature. Those organisations are usually run informally and are common in the voluntary sector. The noble Baroness is absolutely right: a management committee is elected to run the organisation on behalf of the members. Unlike limited companies, unincorporated associations have no separate existence from their individual members. The association itself has no legal rights, as it is not perceived as a separate entity; nor can an association be convicted of a common law offence. However, an unincorporated association can be liable for a statutory offence. The purpose of Clause 88(1) is to make it clear that offences under the Bill may be committed by an unincorporated association. That ensures that in cases where the fault lies with the organisation, rather than any one individual—or if the organisation is liable vicariously for the actions of its employees—the association will be prosecuted. That will be the same for corporate bodies under Clause 87. Nevertheless, where an offence has been committed with the consent or connivance of an officer or member, then they, as well as the association itself, are liable for proceedings to be brought against them. The wording of Clause 88 is based on existing legislation, such as Section 207 of the NHS Act 2006. As an unincorporated association is not a legal entity, its assets will be held by members as trustees on behalf of the association. However, it is not appropriate that proceedings should be brought against the trustees of the association, who may be individuals with no responsibility for the actions in question. Any fine subsequently imposed will be paid by the trustees but with the association’s funds. In other words, the association will be found liable and the fine will come out of the association’s fund. Amendment No. 112 appears to be designed to allow for individual officers and members of an association to be liable for payment of fines, as well as the association itself. The amendment is unnecessary as Clause 88 already makes provision for individual officers or members to be liable if an offence is committed with their consent or connivance. Where proceedings are taken against an individual officer or member, they will be personally liable for any fines. I thank the noble Baroness for tabling the amendments and giving me the opportunity to explain the Bill’s provisions; I hope that she will be content to withdraw the amendment.