Lords amendments considered.
Meaning of “relevant duty of care”
Lords amendment: No. 2.
I beg to move, That this House disagrees with the Lords in the said amendment.
With this we may discuss Lords amendments Nos. 3, 5, 6 and 10 and the Government motions to disagree thereto, and Government amendment (a) in lieu of the Lords amendments.
I am proud to say that we are nearly there with the Bill and with getting a new offence of corporate manslaughter on to the statute book. I hope that for all those people who have campaigned for so long for this new offence—to whom I pay tribute today—we can ensure that the final stages of the Bill are not further delayed. We have come a long way to get here and achieved a lot in the Bill. We have a new offence of corporate manslaughter and a new basis for liability. We have extended the new offence beyond corporate bodies to unincorporated partnerships, trade unions and employer associations. With publicity orders, we have created a new form of sanction. It will be the first offence in the UK to have that new sanction. We will discuss that later this afternoon.
Also, we have taken a significant step in lifting Crown immunity. Lifting Crown immunity has ensured that the public and private sectors will be on an equal footing, in terms of corporate manslaughter, when carrying out the same activities. Workers and the workplace are comprehensively covered, as are the kinds of activities where traditionally there have been concerns about health and safety in the private sector: construction, maintenance, the supply of goods, and the use of plant and vehicles. However, lifting Crown immunity raises difficult issues in relation to other types of activity performed by the state that the private sector does not do, or does only on behalf of the state. The issues include where the line between a Government policy and its implementation is, and whether the effect of imposing liability for the offence would cut across some of the aims of the activities.
I am talking about areas that are unique to Government or require specific statutory powers to be carried out and for which other forms of investigation and accountability exist. They are also areas where any deaths raise questions that go beyond the general remit of health and safety, which is what the Bill is primarily aimed at. Both Houses have supported us in the principle of exempting some such areas, including the police and the armed forces when engaged in operational activities, and the emergency services when responding to life-threatening situations.
I will come on to the issues around the Human Rights Act. Clearly, we believe that by lifting Crown immunity in the way that we have, we have taken a considerable step forward in health and safety legislation. I will return to the point that the hon. and learned Gentleman raises a little later.
During the passage of the Human Rights Bill in this House—the Minister may well have taken part in those debates; I certainly did—it was pointed out to the Government that passing the Act would lead to foreseeable and obvious constitutional collision points between the courts and the Government. That is coming to pass. Surely the Government have thought about this matter. They have had eight years or so since the 1998 Act to think about it. Why are they pursuing the argument that they are now pursuing?
The hon. and learned Gentleman is trying to take me down an avenue that I do not wish to go down this afternoon. He will know that several discussions are taking place about relationships with the judiciary. I am sure that we will return to that issue in due course.
I am sure that my hon. Friend is aware that my Committee, like other Select Committees, has produced several reports complimenting the Government on the principle of introducing the Bill, which we regard as a key human rights achievement.
I am grateful to my hon. Friend, who chairs the Joint Committee on Human Rights. I know that its deliberations have been welcomed, as has its support for several aspects of the Bill.
Let me return to the key aspect of the debate: the way in which custody should fit into the scheme. We think that the picture is complex, so it would be useful at this point to consider what is meant by custody. It can cover a spectrum of activities, ranging from police arrest and short-term detention followed by release back on to the street, to the lifelong detention and management of serious offenders. Those very different activities cannot all be treated the same. Some of the activities that could fall into the scope of custody border on those that the House and the other place have agreed should not be covered by the Bill. For example, arrest and police detention are closely linked to policing operations.
I am listening carefully to the Minister, but I find that aspect of his exposé quite astonishing. Custody is a clearly defined concept: when a person is in the custody—that also implies the care and control—of another person. It is entirely distinct from police operations before a person is taken into custody. I might try to intervene a little later as the Minister continues his speech, but it seems that he is about to make a very bad point.
It is for the hon. Gentleman to decide whether I make a bad or a good point. I am trying to explain our view of the situation surrounding custody in the context of the Bill. I am sure that he will accept that the Government have moved a long way to try to resolve the issue. I will develop my theme further, and I am sure that if he thinks the bad points are getting worse he will intervene again. However, I think that there is a distinction to be made in relation to the police.
There are questions about whether applying the offence to custody would have unintended and unwanted consequences in the form of risk aversion, which we discussed in Committee. We have always argued that risk aversion can be greater in the public sector, where there is not the drive of profit to balance against it. That is especially true in high-risk areas, of which custody is undoubtedly one. Would applying the offence mean, for example, that the police would be less likely to pick up a drunk lying in the street—perhaps for that person’s own good—given that there would be no liability until the person were held in a cell?
Finally, there is a point that has been made several times while discussing this subject: Government policy is fundamentally linked to the custodial environment. Separating policy from its implementation is very difficult when the two are so closely aligned, such as in the case of the provision of resources to prisons to make cells safer and the management of those resources locally. A question on whether sufficient money had been spent on a particular cell would go right back to the decision taken in government about the amount of resources that should have been allocated. Questions about the way in which resources were allocated and whether they were sufficient are not for the courts to consider. The recommendations from the Joint Committee on Human Rights included increasing funding throughout the prison estate. Although it is right for the Joint Committee to make such recommendations—that is its role—it is certainly not the role of the courts to decide how taxpayers’ money should be spent.
When we are considering custody, do we not want the authorities to be risk averse? If someone is at risk of committing suicide in prison, surely we want to ensure that the governor and his or her staff ensure that that person does not commit suicide, so they are more risk averse. Surely the Minister does not want people in charge of custody to be more risky.
Certainly not. We actively try to avoid deaths in custody. I will speak a little later about how we intend to improve the situation. However, there could be an opportunity for risk aversion. The hon. Gentleman was not present at the time, but I remember hon. Members on both sides of the Committee giving examples in which there was a possibility of people becoming risk averse. I do not think that the story about the drunk in the street is something that could not possibly happen. People would think twice about their position.
The Minister squarely raised a point about cost. My understanding, as it was in Committee—I have read carefully what the Attorney-General said in another place—is that if someone dies in a cell fire in a prison because the fire precautions in the cell were insufficient, liability for prosecution against the Home Office could lie. That is a clear example of cost coming into the equation. If cost can come into that equation, why is there anxiety about cost in the case of someone being able to commit suicide in a prison cell because there was inadequate supervision due to cost factors? What is the distinction between the two cases?
We are concerned about public policy issues relating to the distribution of resources to particular services. The hon. Members for Beaconsfield (Mr. Grieve) and for Kingston and Surbiton (Mr. Davey) should allow me to continue my speech, because I hope to allay some of their fears by pointing out the way in which the Government are trying to respond to some of the concerns about deaths in custody that were raised in the other place and in Committee.
We have listened to the serious concerns expressed both in the House and the other place. While we do not believe that it is right for custody to be covered by the offence, we have tried to respond in two other ways to the strength of concern about the way in which the Government are tackling deaths in custody.
First, we want to strengthen the arrangements for the independent investigation of deaths in custody. Hon. Members will know of the Independent Police Complaints Commission and the inquest procedure, but we have also decided to put the prisons and probation ombudsman on a statutory footing. The ombudsman has investigated all deaths in prisons, young offender institutions and immigration detention centres since 2004. Since last year, he has investigated those in secure training centres. He and his office have a detailed knowledge of custodial practice and policies. It has been the Government’s intention to put the appointment on a statutory footing since 2003. Again, that is a recommendation of the Joint Committee on Human Rights.
Legislation will place a formal duty on the ombudsman to examine all deaths under his remit. It will allow him to decide the scope and procedures to be adopted in investigations. It will also give him new High Court powers to obtain evidence and to allow him to work with other ombudsmen, when appropriate. The ombudsman’s post is independent of the organisations that he investigates, but the Government recognise that putting the role on a statutory footing would remove any perception that he was not independent of the Government. Indeed, he would be appointed by Her Majesty.
Again, we will want to examine the detail of the role and responsibilities when we consider the next appropriate legislative vehicle, in line with the Joint Committee’s recommendations. I do not think that that will be the outcome, but I do not want to pre-empt the discussions that will have to take place about what the statutory powers will be.
The Minister’s preference is clearly a measure that will allow the Secretary of State to make regulations to include custody in the appropriate duties of care at a later date. Either now or later in his speech, will he explain to the House why including custody might be appropriate in the future, but would not be appropriate now?
I hope to do that. I am grateful for that intervention and the hon. Gentleman’s involvement throughout the Bill’s passage. I am trying to express the fact that we think that the role of the prisons and probation ombudsman will need time to develop in the way in which we have outlined. We will deliver the new role through the next appropriate legislative vehicle.
Secondly, in response to the Lords amendments and the hope expressed in the Lords that applying the offence to deaths in custody would reduce such deaths, we have decided to review the role of the forum for preventing deaths in custody. That independently chaired forum, on which Baroness Stern sits as an observer from the Joint Committee on Human Rights, brings together practitioner and inspectorial professionals from across the relevant services involved in detention for which the Ministry of Justice, Home Office and Department of Health are responsible. The forum’s remit is to compare and contrast approaches, and to identify and draw attention to good practice and issues that require further attention from the services or from Ministers.
The forum is working well and is meeting many of the criteria that the Joint Committee set out in its recommendations for a taskforce. I believe that it has great potential to bring about real changes and improvements to safety in custody, but I acknowledge that there is room for improvement of the forum; we need to give it greater autonomy from Government, and increase its capacity for sharing information and conducting research. We will review the forum, but it is too early to say exactly how it may change. However, we will consider issues such as resourcing, capacity and the interaction between Ministers and the forum. In terms of time scale, we have already started to consider how we might strengthen the forum.
I hope that the two measures that I have mentioned demonstrate our strong commitment to reducing deaths in custody and to ensuring that each death receives proper investigation. However, as the hon. Member for Rugby and Kenilworth (Jeremy Wright) pointed out, we are also proposing amendments in lieu of the Lords amendments. By doing that, we are acknowledging the strength of feeling expressed in Parliament about duties to people in custody, and concerns about the fact that those duties were not included in the Bill. We propose giving the Secretary of State power to amend the Bill by affirmative resolution to increase the categories of duty of care. Although the power that we are proposing does not bring custody into the Bill, it leaves the door open to doing so, without primary legislation, in future.
My response to my hon. Friend, and to the other hon. Members who have asked, “Why are you waiting?” is that it is important that people recognise how far the Government have moved on the issue, and I am sure that they will. Previously, we did not want to deal with deaths in custody in the Bill, for reasons that we outlined in the other place and in our discussions in Committee. It will take time to develop the role of the prisons and probation ombudsman, and to strengthen the forum for preventing deaths in custody. If those bodies work well, there may not be any need to put the offence in the Bill, but if they do not, the power that I mentioned is in place, and a measure can be introduced through the affirmative procedure. We hope that that is enough to satisfy hon. Members, and we hope that they acknowledge and accept that the Government have moved a tremendous distance.
The hon. and learned Gentleman will have read the Hansard report in which I said that I hope that the legislation is never used. We do not want prosecutions; we want the corporate bodies to make sure that their policies are strong enough to prevent any of the offences from taking place, so I wholeheartedly agree with him on that.
I thank the Minister for giving way. Will he give an indication of when the review might take place? Does he anticipate that it will be after three years, or five years? It is important for him to state that now, and to state the nature of that review; otherwise, the date might simply be pushed further and further back by successive Ministers.
I hope that that is not the case. We are trying to meet the requirements placed on us in the discussions and debates in both Houses, and we are trying to accommodate the concerns that have been raised, recognising that the Government’s first viewpoint was that provisions on deaths in custody should not be included in the Bill. I hope that, through the forum, we can make great progress fairly quickly. We will have to find the appropriate legislation to deal with the ombudsman, and the development of those processes will lead us to consider whether to use the affirmative procedure in future. As I said to the hon. and learned Member for Harborough (Mr. Garnier), I hope that we never have to use the legislation, because the aim behind the Bill is to ensure that corporate bodies in the public and private sectors have policies in place.
It would be helpful to have some clarification. When the Minister wrote to explain what the Government were seeking to do, he said that they would need to take into account how the legislation works in practice. I understood that to mean the legislation that we are enacting, without the bit on deaths in custody, which we are going to take out. I must say that I was a bit surprised by what he said, because when we debated the issue in Committee, it was emphasised to us that we could not compare the other aspects of the legislation to the issue of deaths in custody, because that was a completely different matter. Now I detect that the Minister is saying that the Government are really waiting to see whether there is any need to include provisions on death in custody, because if there are not too many deaths in custody, they might get away with not putting provisions on death in custody on the statute book. That is a slightly different thing. Will the Minister clear up that aspect of the issue?
That certainly is not the case. The debate on the Bill has been conducted in a generous spirit and I hope hon. Members will appreciate that we have tried to meet the concerns that have been expressed. That is reflected in the number of amendments that the Government have accepted here and in another place. We are opening the door because we hear the concerns that have been raised with us. We want to make sure, through the committees and other bodies that we set up, that we focus on deaths in custody and that there is full examination of each and every one of those tragic deaths, but we want to do that properly. That depends on the enactment of the Bill and how the other two situations develop.
I am glad that the Government are contemplating including custody in the offence; my anxiety is that they have form in that respect. For example, they promised that the prisons ombudsman would be put on a statutory footing. Will the Minister remind the House when that promise was first made and what has happened since then? He will understand that Members are anxious about when the proposed power might be used.
My hon. Friend said that the Government had form. She was a member of the Government at the time she referred to, in a similar role to my good self. The Joint Committee on Human Rights suggested in 2003 that statutory powers should be given to the PPO. Ministers come and go, and I can only repeat that I and the Government have listened to what has been said. Deaths in custody are tragic events and we need to ensure that we prevent them whenever we can, and that when something has gone wrong we determine what has happened.
I understand why hon. Members are trying to push me into announcing a timetable, but they should reciprocate the generosity that I have shown in tabling the amendments. I see hon. Members shaking their heads, so I clearly will not convince the Opposition. However, I hope my hon. Friends recognise how much progress has been made.
The power will allow flexibility to extend the offence to duties or to people in all forms of custody and detention. Whether and when the power is to be exercised will need to be considered in light of the other steps that we are taking. We will need to see how the new offence works in practice, the impact of putting the prisons and probation ombudsman on a statutory footing, and how the reformed forum for preventing deaths in custody works, and it will depend on whether the complexities that I set out earlier can be resolved. All these aspects need to be addressed.
What we are proposing is a significant step in opening the way to extending the offence, if that is considered right in due course. For the present, for the reasons that I have outlined, we remain of the view that the offence should not apply to custody in the blanket way that it would were the Lords amendments accepted.
When we last discussed the matter in the House, there was firm support for the Government’s position. We have listened to the strong messages from those in favour of extending the provisions of the Bill to custody, and we have come a long way towards meeting those concerns. We have accepted the principle that the new offence may extend to custody at some time in the future.
I have been pleased by the way that we have been able to work together in the House and the other place on this important legislation. As I said at the start, we have come a long way from our starting point and it is right that the Bill has received constructive scrutiny, first from the Joint Scrutiny Committee and then during its passage through Parliament. I hope that hon. Members and those in the other place will be willing to compromise on this final issue and accept the amendment in lieu.
Throughout these proceedings, I have always been absolutely satisfied as to the sincerity of the Minister’s explanations, and I am grateful to him for the further minor concession that has been extracted from the Government. I note that last week when I saw the Minister there was mention of putting only the ombudsman on a statutory footing. I rejected that out of hand, so along with other hon. Members I suppose that I can take some credit for the further movement by the Minister towards having a power that can be enacted by statutory instrument. However, when one looks at the overall picture, one sees that it remains woefully inadequate, and I want to explain why.
We have conducted this debate with some good humour, which I do not wish to depart from, but the Minister was right when he said that this was a serious topic. We are talking about the deaths of people in custody. I think I am right in saying that between 1995 and 2005, nearly 2,000 people died in custody. Of course, the vast majority of those died by their own hand, and in many cases there was nothing that even the maximum amount of care or supervision would ever have done to prevent those tragedies from happening. But in that period, 10 verdicts of unlawful killing were recorded by inquests—juries—in respect of people who died in custody, which seems to indicate that they felt that in those cases the rule of law had been seriously undermined, and anecdotally there is ample evidence that other cases of those 2,000 give rise to really serious disquiet, and a number have been highlighted.
There was the case of Zahid Mubarek, who died in custody at Feltham having been placed in a cell with a person who was well known to the prison officers to be in a state of psychosis and to have psychopathic tendencies and racist instincts. A current case concerning a man called Joseph Scholes has still not been resolved and I will not comment further on it. Each one of those needed legal challenges by the families even to obtain an inquiry into what happened. In the case of Zahid Mubarek, the conclusions of the inquiry, in terms of attitudes, practices and management at the young offenders institution, were truly damning.
It is in the light of that, and in the light of the fact that, as I said in an intervention on the Minister, a person who has been deprived of their liberty for whatever reason is under both the control of the person who deprives them of their liberty, but also, in a very special sense, the care of the person who deprives them of their liberty, the House has to consider whether it is right that deaths in custody should be included in the framework of corporate manslaughter.
The Government, very properly, in raising Crown immunity have conceded that Crown organisations—Government Departments—should no longer have the previous blanket exemptions. That is a major concession that is fundamentally right. As I highlighted to the Minister in my intervention, in the case of prisoners who died in a fire in a prison because there had been insufficient investment in fire protection equipment—a clear issue of cost, management or policy—or because the extinguishers had not been checked, the Home Office would be liable to prosecution under this legislation. That is another major concession, which is absolutely proper.
Let us consider where one might feel that the issue of care is most obvious, namely in regard to the welfare of people in detention: making sure that they do not die by their own hand, wherever possible, or by the hand of another inmate—a real possibility, but one which management systems are in place to try to ensure does not happen. In those two key areas, the Government have simply shown themselves unwilling to budge until the 11th hour and 59th minute. We now have a concession which, although welcome—like any concession—does not really take us very much further.
Does my hon. Friend agree that the Government’s arguments stand at odds with our own experience? There have been a number of cases since 1998 where patients or patients’ families, or those supporting patients, have sued the NHS, in whichever guise it happens to be, in relation to the giving of treatment, the withdrawal of treatment or the refusal to give treatment to a particular patient. Clearly, behind those cases lies the question of Government resources—public resources—and their allocation by that particular part of the NHS. The court decides, on the basis of the evidence before it, whether this is an incursion into some part of public policy which the courts do not get involved in, or it decides, on the facts of the case before it, that it can make or withhold an order. Surely the principle is precisely the same in this case and the Minister is at odds with his own Government’s policy.
I entirely agree with my hon. and learned Friend. The irony of the situation is that health trusts will be covered by the legislation. Generally speaking, when one thinks of health trusts one thinks of the possibility of patients being killed through gross negligence in hospitals. However, in the context of mental hospitals, there is also the possibility that one patient might be killed by another, in circumstances that are so similar to those which are, I think, the nub of the Government’s concerns—I keep trying to understand the nature of their anxiety—as to be identical. The Government are, very properly, willing to make the concession in that context but unwilling to budge in the context of custody within prison cells or police cells or any other form of lawful custody. I find a rather worrying irrationality in that.
I shall wait with interest to hear from the hon. Member for Hendon (Mr. Dismore), whose Committee—the Joint Committee on Human Rights—reported on this matter. In reviewing why the Government were unwilling to make this provision, it stated, at paragraph 2.13 of its report:
“Having considered the Government’s arguments, we therefore remain of the view expressed in our earlier report, that the exclusion from the scope of the new offence of deaths in custody and other deaths caused by gross management failure in the public sector where no individual can be proved to be responsible is likely to lead to the UK being found to be in breach of its positive obligation to protect life under Article 2 ECHR.”
The Government have not dealt with that. If that is the Committee’s view—and it is advised by learned counsel in its deliberations—that must give rise to the prospect that the longer we go on having an architecture that is only partial, not complete, the greater will be the risk of an article 2 challenge if there is a death in custody. That will leave the Government facing embarrassment. It will also leave the Bill found wanting, because it provides a special and particular protection to one state activity that is not based, as in some of the other exemptions such as defence, on the inherent risks that people have to run, but on the fact that, for whatever reason, the state feels that it would be too difficult to extend this protection to individuals in lawful custody. I must say that I find that rather abhorrent, because it is to such people—those who are being deprived of their liberty, often for good reason—that we have a special responsibility.
There has been the nastiest sense—not from the Minister, I might say, but certainly from the Home Secretary on Report—that it was thought to be beneath Parliament’s area of responsibility to pay such attention to such individuals. I was rather hoping that as the Minister’s responsibilities have been transferred from one master to another, we might see a new ethos prevailing. However, I regret to say that the baleful influence of the Home Secretary continues to contaminate Government in a variety of ways, whether in sudden explosions against the European convention on human rights—in Venice of all places; I would have thought that that rather romantic environment might mollify his behaviour—or in the extent to which he still seems to be exercising control over the Ministry of Justice even though he no longer controls criminal justice policy. In view of some of the answers to parliamentary questions about who is responsible for what that I have received in the past few days, I am bound to say that a certain lack of clarity remains as to where responsibilities lie.
When the matter was considered in another place and the amendments were accepted by overwhelming votes by the standards of the House of Lords—the majority was almost 100, with many peers who take the Government Whip supporting the inclusion of the protection so that corporate manslaughter would apply in relation to individuals in custody—Lord Ramsbotham made a powerful, impassioned speech that was nevertheless of the utmost rationality. He made the point that the problem is not policy but good management. The Under-Secretary appears to be undertaking an exercise in courteous weaving to get himself off that spike.
Nobody expects the impossible. People will continue to die in custody and it will be no one’s fault, but the failings have not been of policy. It is possible that the Home Secretary has an attitude that he has kept secret from the House but I would not accuse him of that. I cannot envisage a Minister or policy maker enacting or ignoring policies that will tend to lead to someone dying in custody. I have a higher opinion of the Government—of any Government—than that.
We are therefore considering management. Lord Ramsbotham said that, and he is right. The Under-Secretary must deal with the question of why he appears ready to allow for covering up and protecting those who manage processes badly in the custodial environment. That reflects badly on us all.
Yes—undoubtedly. On Report, I made the point that I must face up to the fact that, were I a Minister of the Crown, we would be in government. I conceded that, were it my lot to be a Home Office Minister, having enacted the legislation I might feel that it was hanging over me like a sword of Damocles. However, I would have to put up with that. Ministers have to put up with all sorts of swords of Damocles hanging over them, including, in the case of the Under-Secretary, those hung by the Home Secretary. It is part of a Minister’s lot. If Ministers have to resign because an especially serious scandal occurs, we must live with that, too.
The architecture of the Bill does not provide for personal liability. The Under-Secretary and I—indeed, most members of the Committee—agreed with that. From that point of view, the measure is sensible, but it is therefore all the more nonsensical not to include deaths in custody, which are a matter of genuine public concern.
Let us consider the Government’s alternative. They appear to offer us a wing and a prayer. The optimistic way of viewing it is that, the moment the Home Secretary is removed from the Cabinet, the incubus that prevents the provision that we are considering from being accepted will be lifted. We might therefore expect the statutory instrument that we all want sometime in the autumn.
However, the Under-Secretary, with his customary courtesy, chose his words carefully. Listening to them, it appeared that we are considering a long-term hope. I was troubled because I got the impression from the Under-Secretary’s letter that we were examining the way in which the measure would work in practice. However, his comments today seemed to go beyond that. He almost appeared to be saying, “See how well we can do without the legislation”, or the bit of it that we are discussing. That is inadequate.
Perhaps I did not give Labour Back Benchers sufficient credit earlier. The Government have been required to change their mind at least partly due to Labour Back Benchers expressing their great concern about the matter. That, coupled with events in the other place, is the reality because the Government have a substantial majority. Those Back Benchers who may be wooed by this proposal should think how it will look in the future. I hope that in five years’ time, we will have a Conservative Government who will do what is needed, but if Labour Members’ expectations are fulfilled and there is another Labour Government for a long time to come, I have a nasty feeling that we could be waiting a very long time indeed before the statutory instrument is enacted.
When the statutory instrument is brought forward under a Conservative Government, will the definition of custody be similar to that proposed for clause 2? That is to say, will it include, as well as prisons,
“secure mental health facilities, secure children’s homes, secure training centres, immigration removal centres”
and so forth?
It is absolutely vital that it should. My hon. Friend is quite right to raise that issue. I have to say that one of my anxieties about the Government’s offering is that because the statutory instrument will be a complete redrafting of this part of the Bill—the Government want to delete the Lords amendments as they have come back from the other place—those additional provisions might easily not be in it. Furthermore, because a statutory instrument is not amendable, the House would be presented with a take-all or leave-all proposal. I simply say to any hon. Members who may be tempted by this compromise that it offers very little in reality. The most that can be said for it is that it offers the opportunity of a shortcut rather than full primary legislation—but with all the drawbacks of such shortcuts, which do not always deliver what individuals might reasonably expect.
The other place was very careful in the drafting of its amendments, which are comprehensive. Of course secure children’s accommodation and secure mental health places must be included. Anyone in custody should be covered by the legislation, which is what I believe Parliament really wants to see. I am only sorry that we seem to be unable to persuade the Government to do the right thing.
I do not intend to take up any more of the House’s time. This is a discrete issue but an important one. Conservative Members cannot accept the Government’s offering. We may not vote against every particular part, but we will vote against the Government’s motion relating to clause 2. That will highlight the fact that we wish to keep the Bill in the form it assumes as it comes back from the other place. I strongly urge hon. Members to look to their consciences on this matter, because the House has an opportunity to do some good. The Minister knows that although I have been properly enthusiastic about some aspects of the Bill, I have pointed out its shortcomings. It is probably not everything that everybody hoped it would be. In this particular area, however, we really have an opportunity to make a difference. We should make that difference and I urge the House to persuade the Government to make it by voting to retain the Bill as it has come back to us from the other place.
I say to the Minister that I acknowledge that the Government have moved quite a long way—certainly in comparison with the Bill on Report, when we heard a rather acrimonious intervention from the Home Secretary—and I thank him for the courteous way in which he has engaged with me and other Government Members on many occasions in order to move this particular issue forward. I believe that he has searched constructively to find a compromise that we can all live with and it is important to note that the Government’s alternative concedes the basic principle directly in the Bill, which is a major step that we all welcome.
I have been campaigning for a corporate manslaughter Bill for all but 20 years, ever since I was professionally involved in the King’s Cross fire, representing victims and their families. When I started that campaign, I did not think that I would still be arguing about this particular issue now, but it is a very significant matter and probably the only outstanding point that we need to argue about in relation to the Bill.
I share the concern of others about some of the shortcomings in the Bill as a whole, but we are making some progress here. The key is to think about the Bill’s purpose. As the Minister explained, we hope that it will never need to be used, because if it is used, it reveals a failure, highlighting an avoidable death that has come about as a result of gross negligence. The Bill is all about encouraging people to take steps to ensure that such deaths do not occur when they could be prevented.
The hon. Member for Beaconsfield (Mr. Grieve) challenged me over the matter of article 2. He made a strong point, but the real question is whether the Government’s package as presented today goes some way towards meeting their obligation under article 2, which is not to bring a prosecution but to protect the right to life of citizens, including those in custody. If there has been a serious breach, there should be a prosecution of those involved or, in the case of an organisation, of the organisation concerned. The hon. Gentleman made the fair point that the Government might still be vulnerable to an article 2 case in the European Court or under the Human Rights Act 1998 in the domestic courts. I think, however, that what is going on here will make the Government a little less vulnerable. The key question relates to when the measure would be brought into effect, and I will come back to that point later.
The fact remains that, since the Joint Committee on Human Rights expressed its views in its second report on the Bill, things have moved on through the package that the Government are introducing today. We are trying to protect vulnerable people, by one means or another, from dying in custody. The first part of the three-element package is the decision to put the prisons and probation ombudsman on a statutory footing, which is welcome. The ombudsman provides an independent focus for investigations into deaths and a proper level of scrutiny, as well as facilitating the involvement of the victim’s family. They can also create a degree of public confidence that an inquiry carried out within the system could not.
It is clear that the ombudsman should be placed on a statutory footing; this has been the Government’s position for some time, as my hon. Friend the Minister mentioned earlier. The provision was supposed to be in the 2005 Bill, which fell because of the general election. On 9 February, Baroness Scotland wrote to me in my capacity as Chair of the Joint Committee, saying that the Government wanted to introduce the measure at the most appropriate opportunity. The ombudsman has been investigating deaths in custody since April 2004 and has gained some expertise in the field. However, if we are to satisfy the other place, we need to establish some time frames for the proposals. When does my hon. Friend the Minister envisage that “appropriate opportunity” arising? If it does not involve a Bill in the present Session, I hope that one can be introduced in the next Session, after the Queen’s Speech. We need to make rapid progress on this matter.
My hon. Friend mentioned the forum on deaths in custody, which was the subject of one of the key recommendations of the Joint Committee’s third report of the 2004-05 Session. We published a progress report on the subject in our seventh report of the 2006-07 Session. I pay tribute to Baroness Stern, a member of my Committee and of the forum, not only for her work on the forum but for her stalwart campaigning on deaths in custody over many years.
The forum comprises 15 different organisations and it is welcome that the people involved have been brought together. I also welcome the Government’s proposal that the forum should be strengthened. The real question involves the ways in which that might happen. The Committee received a note from the chair of the forum, John Wadham, with the Government’s response to the progress report that we published in March this year. He raised a number of issues, and I would like to hear my hon. Friend the Minister’s response to them.
The first relates to the coroners rules. My hon. Friend has not said anything about those rules, but now that he is in the Ministry of Justice that matter comes under his new responsibilities. I hope that he will be able to tell the House whether the powers that need to be changed will be changed to require responses from organisations to coroners’ recommendations. That is long overdue, and if we cannot have a new draft coroners Bill for some time—which is clearly the case—the rules will need to be amended, as recommended by the chair of the forum.
Further issues identified by the forum include the prisoner escort record, a key handover mechanism that needs to be strengthened, and access to the police national computer by the Prison Service as part of its risk assessment activities in identifying prisoners at risk and taking steps accordingly. Those are all aspects of good practice that need to be dealt with. Perhaps my hon. Friend will confirm that those issues will be looked at.
On a broader front, the chair of the forum, Mr. Wadham, makes the point clearly that the Government must ensure that the forum
“has the power and resources to act”—
not just talk—
“when it feels it necessary.”
In particular, the forum should be able
“to influence member organisations to improve practice (and to respond to bad practice)”.
Mr. Wadham makes the particular point that this ability could be
“enhanced if the Forum were, in the future, to be chaired by someone entirely independent.”
I presume that he does not consider himself to be formally in that position. We are looking for those elements to be part of the reform of the forum, and perhaps my hon. Friend the Minister will confirm that he has those sorts of things in mind. More resources, more capacity and more interaction with Ministers are all welcome, as has been mentioned, but the forum has come up with those specific points so far.
On the amendments, it is important that the Government have considered the principle, but I am concerned about the width of the discretion and the time frame. I would have preferred “shall” to “may”, as that would have imposed a stronger obligation on the Minister to keep the position under review and to act on such reviews. Inevitably, there are concerns about the width of the discretion in specifying the forms of custody, the description of the premises, the circumstances to which it applies and exceptions to the rules. I hope that my hon. Friend will flesh out the Government’s thinking on that.
The key issue must be the timetable. Is it the intention that the provision should come into effect once the additional prison places start to come on-stream in larger numbers? One of the concerns is about prison overcrowding. Is it the intention to enact the measure within a timetable that shows the effect of the other reforms proposed in relation to the forum, the ombudsman and the coroner? If my hon. Friend is to satisfy the House, and convince their lordships that they should accept his proposals in lieu of their own, he will need to go a little further.
Some practicalities are involved. Everyone in the House would concede that the Prison Service is in a state of flux—to put it neutrally—given some of the problems that it is experiencing. Some might say that that makes it even more important that the law comes into effect more promptly. However, if our intention is not to witch-hunt but to put right the Prison Service and stop such deaths, which is the purpose of the Bill, it is important that the ombudsman has a statutory footing and is able to investigate and make recommendations, that there are proper responses to coroners’ recommendations on deaths in custody, and that the forum has the teeth that it needs to make real progress. I hope that that will happen quickly.
If the measures are not brought into effect, the Government remain vulnerable to an article 2 challenge. I am prepared to give the Government a little leeway and the benefit of the doubt, but, if there were a challenge, I could not say whether the courts would do the same. My hon. Friend needs to act quickly on his proposed measures if he is to satisfy not just this House but the other place.
Is it not wholly illogical to argue, as the hon. Gentleman appears to be doing, that if further protections for those in custody are coming along later—such as those that he has set out—it is sensible to wait until then before we give those in custody the protection that they would otherwise have if we implemented the amendments that the other place has sent back?
No, it is not illogical. As I have readily conceded, the article 2 problem remains for the Government. In relation to trying to deal with such issues promptly, that is the outstanding lever on the Government. There is no point in starting prosecutions immediately, as that would take time and would not in itself lever in change. The purpose of the Bill is to act as a preventive measure, not to start bringing prosecutions. If our purpose is to try to prevent deaths in custody, the Government have come up with a clear package intended to achieve that objective. In the last recorded year, for example, we saw a reduction in suicides of about 14 per cent.—60-odd people still died, which is far too many, and there were other deaths too. We need to give the Government the opportunity to bring the measures into effect rapidly and then, we hope, we will start to see a significant reduction.
As was conceded on Report and today, the number of cases to which the Bill would apply is relatively small. On average, I think, a prisoner currently dies in violent circumstances virtually every other day, although that number is coming down. The hon. Member for Beaconsfield said that over the past few years there had been about 10 instances in which there might have been a prima facie case, and I think that number is probably about right. However, we are trying to deal with the problems involved in not just those 10 prima facie cases but the 200 or so other cases that would not be caught by the Bill. If what the Government are presenting today is a package of measures that would deal not only with the gross negligence cases but, more important, with all deaths in custody, I think we are seeing some real progress.
My hon. Friend has put his finger on the Government’s reason for not wanting the Bill to be used in the way that has been suggested. The existing measures relating to deaths in custody are important to us, as are the existing measures to develop and strengthen the forum for preventing deaths in custody and powers for the prisons and probation ombudsman. We take this issue very seriously, but, as my hon. Friend said at the outset, the Bill did not seem to us to be an appropriate framework for such a measure. In my present role I am concerned about all deaths in custody, and I want to ensure that we do the maximum to prevent them.
I am grateful to my hon. Friend. I know that others wish to speak, and I have taken a number of interventions, so I shall end by saying that the Bill is intended as a preventive measure. As I have said, the article 2 problem will remain in the back pocket if the Bill and my hon. Friend’s proposals do not fly, but I think he has done enough to satisfy me and most members of my Committee, although obviously I cannot speak for them; they will have to speak for themselves. If my hon. Friend is to satisfy the other place, however, he will have to come up with as detailed a time frame as possible when he responds to the debate.
I think it is fair to say that the hon. Member for Hendon (Mr. Dismore) and his Committee have been exceedingly influential in putting pressure on the Government. The hon. Gentleman deserves praise from those in all parts of the House for the work that he and his colleagues have done. There was some dispute with Government lawyers over certain details of the Committee’s analysis of how the European convention applies to the Bill, but I believe that the Committee came out on top. The hon. Gentleman also deserves credit for the way in which he has dealt with all the other principles that are at stake.
Although I understand why the hon. Gentleman wants to give the Government the benefit of the doubt today, I think that he is wrong to let them off the hook at this juncture. It is welcome that they have conceded the principle, but there does not seem to be any justification for not going ahead now. Surely that would be entirely in line with all the other policies articulated by both the Minister and the hon. Gentleman.
No one here opposes the idea of putting the prisons and probation ombudsman on a statutory footing. That has long been promised and has not yet been delivered, but it will be good when it is delivered. The forum for preventing deaths in custody appears to be doing a good job, although I note from a visit to its website earlier today that the most recent reports of its deliberations date back to June last year. The website needs to be updated slightly, so that we can see the good work that the forum has been doing. However, the hon. Gentleman’s Committee has reported on it, and a report from John Wadham shows some of the excellent work that is being done on detailed issues such as the prisoner escort record. The record is a key practical measure, which states when a prisoner is being moved from one agency to another so that if that prisoner has any vulnerabilities, the information is properly shared.
The Government deserve credit for such detailed work, but I do not see why that should prevent us from making progress on this particular issue. The Government seem to have put themselves in a better position to ensure that the Bill goes with the flow of the proposal, and I do not see any contradiction between the two.
I concede that the practical measures are welcome and that custody is no longer an issue: it could and may be included at some point. However, is not the hub of the matter the question of principle over utility? For those in positions of power or responsibility there may not be equality under the law, while for those with a duty of care there may not be equal protection under the law unless custody is included at this point.
I am grateful for that intervention because I totally agree. The hon. Gentleman was, I think, echoing a speech by Lord Ramsbotham which he began by stating those two key principles. The hon. Member for Hendon, who chairs the Joint Committee on Human Rights, often focuses on principles, and the House has a duty to do so, too.
Lord Ramsbotham talked about equality before the law. Why should public bodies be less accountable before the courts than private bodies? I can see no good reason for that. If I were a serving prison governor or chief constable, I would consider that to be a slight insult. I would not want special protection or special privileges. I would want to assert that I could run my service and do my job to the same standards as anyone else. I would want to meet the highest standards. There should be no fear for them in this proposed legislation. They do not want to be above the law as it applies to other bodies. Equality before the law is a clear legal principle which should be applied.
Has the hon. Gentleman seen the letters from the British Transport police and several chief constables who have concerns about this issue from the perspective of risk aversion? This case is not being made by the Government; it is substantiated by people working on the front line.
Former chief constables in the other place argued contrary to that. I am sure that the Minister will concede that if we were to gather around one table all the chief constables who are members of the Association of Chief Police Officers different views would be expressed.
There is another key legal principle: equal protection under the law. Why should prisoners have less right to life than other people? Why should prisoners on remand, who have not been found guilty of any crime, have less right to life? Is it less serious if a prisoner rather than someone who is not a prisoner is killed as a result of grossly negligent management? I cannot see how anyone could possibly make that case in principle. If the Government persist in maintaining their position, and if Labour Back Benchers give in too easily, they will be in clear breach of these long-standing principles.
I believe—as the hon. Member for Hendon also appears to—that there is a danger that the Government would also risk being in contravention of article 2. I will not rehearse the legal arguments in the report, but they appear to focus on the interpretation of one particular case—the Oneryildiz case—and whether that applies to corporate bodies or only to individuals. The hon. Gentleman’s Joint Committee makes a clear argument that it does apply to public bodies and that that case cannot be interpreted in the narrow way that the Government’s legal advisers seem to want. Therefore, the Government again have a principled reason for moving.
It has been interesting to follow over time how the Government have defended their position—the counter-arguments that they have made. Those arguments have changed—and, frankly, some of them have been poor. It has been argued that custody involves a unique set of factors. One of the Government responses states that the Prison Service does not control the amount or type of people coming in—that that is beyond its control—and that they are often very difficult people with serious mental health problems or a serious tendency to violence. That is obvious; we already knew that. However, that does not mean that the people managing that service should not meet the highest possible standards.
Some private sector organisations deal with very risky things where they do not know what is going to happen. Uncertainty exists in the private sector; it is not unique to the Prison Service. Risk management is an issue for all private bodies, just as it should be for the Prison Service. If the Prison Service correctly manages the risks involved in who might come through the door the next day and what their characteristics might be, it will never be found to be grossly negligent. We are asking not that there should be some special privilege, but that the Prison Service should go about its job in the same professional manner that this Government rightly expect of all private enterprises.
The argument was also advanced that this issue is about public policy, the allocation of resources and the resource constraints affecting Government. Lord Ramsbotham nailed that one when he said that it is about not just cash but the ethos of the service, the value that people put on the lives of those in their care, and the management and various other structures. The forum that we have heard so much about is already dealing with some of these issues. I find it quite alarming that the prisoner escort record problem to which I referred earlier, whereby the information relevant to a vulnerable person transferring from one service to another is not automatically transferred, was not solved years ago. The fact that a forum had to be set up to highlight the problem suggests that there has been some pretty poor management. This is not a cash issue; it is a question of doing the job properly and not being incompetent.
When the Government argue that the issue is one of resource constraints and public policy, what are they actually saying? They are saying, “We want the right to be incompetent. We want the right to say to Parliament, ‘We don’t want the money necessary to do the minimum that human rights demand.’” That is shocking. When has a Minister said to this House, “We really need more money to do the job properly and to ensure that grossly negligent management does not occur, but we’re not going to ask for it because there are other issues to consider”? Effectively, that is what lies behind the Government’s defence and it is just not good enough.
Of course there are problems in the Prison Service—the hon. Member for Hendon talked about them—such as overcrowding and the huge rise in incidents of prisoner violence as a result of that overcrowding, but that is not the time to take off the pressure and say, “Okay, it doesn’t matter, then”. It should matter even more, and such problems should be an impetus for reform.
The Government have also argued in recent months that existing alternative accountability mechanisms for the Prison Service, the police and the health service should be turned to. They have been debated in this House and they do not stand up to analysis. Public inquiries are very rare and the Government work as hard they can to refuse them, so that is hardly a port of call for them to pray in aid. They have also referred to the role of Parliament, but elections are never fought over whether the Prison Service has behaved in a grossly negligent manner, so that is wishful thinking. In this House, accountability works on a totally different level. It does not work at the institutional level—at the level of a particular prison or police service—relevant to the cases before us.
The various investigations that the ombudsman, the Independent Police Complaints Commission and others undertake are of course a very important aspect of accountability; we welcome them and look forward to their being improved. However, and as I said in an intervention on the Minister, they simply try to work out what went wrong and what lessons should be learned; they do not say who was responsible. The difference is that they do not point the finger and say that a particular person should be called to account for those failings. Only if someone knows that they will be called to account is there a deterrent. It is clear from the reports of the Joint Committee and from the way in which the European Court has dealt with such cases that the threat of being brought before the criminal justice system acts as the most powerful deterrent. If we do not do that, we will not put in place the incentive structures required.
The Government could benefit from bringing deaths in police custody within the scope of the Bill. The Government have been doing some great work and I pay tribute to the Minister and his colleagues; there has been some real improvement. Such an approach would go with the flow of, and not against, what the Government are trying to do. The compromise that has been set out is not really a compromise but an attempt to buy people off. The time scale that the hon. Member for Hendon talked about is critical. Let us remember that it took 10 years for this Bill to come before the House. It was promised in the general election in 1997, but we saw consultation after consultation. If we do not use this opportunity to require the Government to include deaths in custody on the face of the Bill, we could have to wait another 10 years for such deaths to be challengeable by a charge of corporate manslaughter.
I urge the Minister to give way on this point. From how the Minister has behaved throughout the passage of the legislation—which is impeccably—I think that he would like to give way on this. In his heart of hearts, he knows that the arguments are on our side and I urge him to follow his personal convictions.
I speak on behalf of those who are prepared to accept the Government’s proposals—or to be bought off, as the hon. Member for Kingston and Surbiton (Mr. Davey) suggests. I shall explain why. I am pleased that we are having this debate. My direct involvement in this Bill began when I chaired the Joint Scrutiny Committee—with the Home Affairs Committee and the Work and Pensions Committee—on it. Perhaps I should not say so as the Chairman of that Committee, but its work showed the value of draft scrutiny, because many other issues were sorted out before the Bill was introduced. I wish that we did that more often.
The issue before the House is one of the few outstanding issues on which the Committee took a different view from the Government on what should be in the Bill. I argued the same case on Report and I have seen amendments passed in the other place, and I welcome the efforts that the Minister has made to get us to where we are tonight. I know—and from comments that have been made, the House knows—how much work it has required from him to get us to this position.
For some people, who have followed the Bill from the perspective of losing friends or relatives in accidents such as the Marchioness disaster or train crashes, this subject appears to be a late entry into the Bill, which has given rise to concerns that the Bill itself may be threatened by our desire to extend it to cover custody. The Minister has done his best to get us to a position where the principle of covering deaths in custody is covered by the Bill without putting it under threat. He deserves the thanks of the House for that.
Why am I prepared to accept this when, from the amendments that I tabled last time, it is evident that my preference would be a straightforward amendment to the Bill? The answer is that I believe that the amendment the Minister has tabled today will trigger a process that will lead inexorably to deaths in custody being brought within the scope of the Bill. Whether or not he feels he has the freedom tonight to talk about time scales, the fact is that the process, once started, will be unstoppable. The Minister is also responsible for prisons, and I do not believe that when he next meets the director of the Prison Service, he will say to him, “I’ve got you out of that problem for the next few years, so I wouldn’t worry about it if I were you.” Instead, the Minister will say that deaths in custody could be included at any time and the Prison Service will have to be ready for that. Many of us would accept that, even if the provision had been on the face of the Bill, some delay in commencement would have been necessary to get the Prison Service to face up to its responsibilities in a way that it has not done so far. That is how the conversation will go.
I do not wish to prejudge inquests in the pipeline, but there are some whose verdicts could make it untenable for the Government not to bring forward the resolution necessary under the amendment, however much the Government may prefer to consider the statutory ombudsman first and the forum next. I fear that there will be other inquests beyond those. That is the historical record, and the result will be that it will not be tenable for this or any Government not to enact this change.
I believe that those of us who, a year or so ago, set out to bring this matter within the scope of the Bill are going to achieve our objective tonight. It is for that reason that I recommend to the House that we support the Government’s proposal, which takes us a long way forward. As ever when Governments are asked to take a very different position from the one that they started with, there is a certain choreography about how such matters must be handled, but the amendment in lieu in the end gets us to where we want to go and delivers the result that we want. I am therefore very grateful to the Minister for everything that he has done.
I fully appreciate what the right hon. Member for Southampton, Itchen (Mr. Denham) has said about his motives for supporting the Government in resisting the Lords amendment. I also accept that politics is largely a game of compromise, and that the best is very often the enemy of the good.
In addition, I understand that the Minister must have felt as though he was in custody ever since the present Home Secretary—who has had various political personalities since 1997—took office. Even if, metaphorically speaking, the Minister has been in the category D estate, rather than the secure estate, his freedom to think and speak as he would like on matters such as this has been closely circumscribed. The Home Secretary is due to leave office in a few weeks. When the Minister joins the 7,500 others who have absconded from the category D estate over the past 10 years, I hope that he will feel able to advance the case and the promise that he has laid before the House.
It may be thought significant that the Howard League for Penal Reform has announced that Cherie Booth, the Prime Minister’s wife, is to be the president of a commission that it has set up to look into the state and purpose of our prisons. I hope that the Minister might therefore take a rather more advanced view of the need for openness and candour about deaths in custody.
I want to make a secondary point, although it is one that needs to be made from time to time. The guts of the Government’s amendment in lieu reveal that it gives Ministers power to amend primary legislation by secondary legislation. I find such a power increasingly troublesome, and this Bill is not the first to allow it. Indeed, the amendment in lieu will mean that a Minister will be able to amend not just any old bit of primary legislation, but the criminal law.
I appreciate that the Bill pins responsibility for corporate manslaughter on a corporate body, or at least on a non-human defendant. However, the consequences of the Minister making an amendment that would include a category of institution in the ambit of the Bill—or remove a category of institution from that ambit—are too big to be covered by a system allowing amendment by statutory instrument.
We have heard and read about the excuses that Ministers in this House and the other place have produced for not doing what I believe that the hon. Member for Hendon (Mr. Dismore), the Chairman of the Joint Committee, would really like them to be doing now. Those excuses can be loosely encompassed by the expression “the doctrine of ripe time”.
Every Government have civil servants who, by way of a draft excuse, say, “No, Minister, the time is not yet ripe.” Well, here we are again: I have heard the Minister produce the “time is not yet ripe” excuse today, and one reads in the record of the debates in the other place that Lord Bassam has said things like, “It’s a jolly nice idea but we are not ready yet.” In addition, the formal response from Baroness Scotland to the Joint Committee report uses about 50 paragraphs to say, broadly, that the time was “not yet ripe”.
The argument could go on and on, and I suspect that, contrary to the hopes of the right hon. Member for Southampton, Itchen and the Minister, the ripeness of time doctrine will be deployed for some while. If the Conservative party is elected to government after the next election, I should not be surprised to find that we, not Labour, introduce the proposal.
One of the most important reasons for asking the Government to change their mind and to agree with the House of Lords is that, by and large, prisons are secret places. Over the past 14 months, I have visited about 24 prisons in my Front-Bench capacity—from those accommodating young offenders to the most secure establishments for adults, both men and women. They are largely secret places. The public do not know much about prisons or about what goes inside them, except when there is a disaster, an escape or the report of a death. I sincerely wish that the public knew more about what went on in prisons.
As a direct consequence of the number of prison visits I have made over the past year or so, I can tell the House that, contrary to the general impression that might be gained from the arguments in favour of inclusion of the Lords amendment, the Prison Service and the private prison providers contain some hugely dedicated, well-meaning and professional people at all levels, from the governors and directors right down to the prison officers at floor level. I do not want anything I say in support of the arguments of my hon. Friend the Member for Beaconsfield (Mr. Grieve) or of the majority in the other place to be taken in any way as designed to denigrate or diminish the contribution of those who work in prisons.
That prisons are difficult places to work in is uncontroversial. The report of Her Majesty’s inspector of prisons on Her Majesty’s prison Norwich shows that prisons are not only difficult but squalid places to work in. Last year, the Prison Service had to decant a wing of Norwich prison because the prisoners were living in their own sewage, so it follows that the prison officers had to work in that sewage. Unfortunately, owing to the dreadful condition of the prison estate and its overcrowded nature—more than 80,000 prisoners are in custody in England and Wales—that squalid wing of Norwich prison has had to be refilled. As a Crown Court recorder, I put up my hand as someone whose public duty it is occasionally to send people to prison, but when the characters and personalities of people who are, for good reasons and bad, in prison—people with personality disorders, people suffering from substance abuse, both drink and drugs, or people who are intellectually impaired—are added to the overcrowded conditions in modern British prisons, it is hardly surprising that deaths occur.
The reason why I wanted to intervene on the hon. Member for Hendon was not to criticise his arguments but to point out that in response to a recent written question to the Minister, I was told that 97 prisoners had suffered a self-inflicted death between January 2006 and April 2007. If one does the maths, that works out at more than six prisoners a month, on average. Those are self-inflicted deaths. There will be others. Right hon. and hon. Members will have their own examples, either from their constituency or because they have a general interest in and knowledge of the subject. There will also be deaths resulting from natural causes. With the increasing number of lifers, of prisoners serving indeterminate sentences, and of people of older years remaining in prison, I suspect that natural causes will account for a growing percentage of the deaths in prison. There will also be assaults by prisoners on other prisoners and, sadly, there will be cases where prison officers—for good reasons and bad—will need to restrain prisoners who have lost their temper or who have no ability to control themselves, and who are then accidentally brought to an early death.
I just want to put the record straight as the Joint Committee on Human Rights understands it from the information that we were given by the Government and that is recorded in our seventh report of 2006-07 in paragraph 188.8.131.52. That paragraph states:
“there were 67 apparent self-inflicted deaths among prisoners in England and Wales in 2006—the lowest figure since 1996. This represents a fall of 14 per cent., compared with 78 such deaths in 2005. The three year average figure is on course to show a further reduction in the three years to April 2007.”
Those are the figures that the Committee was given. They are encouraging, but of course they probably represent only about a third of the overall total of deaths.
I do not want to have an argument with the hon. Gentleman about the numbers. We are seeing self-inflicted deaths at the rate of more than six a month now. If one looks at the figures over the last 10 years, there was a dip in the early 2000s, but, according to the latest figures, which I got from the Minister the other day, it appears that the numbers are going up again. I suspect that that is largely due to the hideous nature of the overcrowded prison estate and the nature of the people who are in prison. Prisons are difficult places in which to work, which is why I wanted to make it quite clear that I am not attempting to be derogatory about those who work in them.
I think that the Lords amendment in question was originally tabled by Lord Ramsbotham. Let us look at his definition of “custody”. All the people who would be in Government or public care in those sorts of places are, by virtue of being in those places, powerless. They have the power to hit, to shout and to make a nuisance of themselves, but equality of arms does not exist. Therefore, Parliament, by passing legislation, must do what it humanly can and humanely should do to ensure that, in the sadly many unfortunate cases where deaths occur, the family of the dead person, and also we on behalf of the public as a whole, have a greater understanding of why that terrible event—the death—occurred.
Let us take the example of the Mubarek case. A young man was murdered by a deeply disturbed and disturbing cell mate in Feltham young offenders institution. I visited that institution not so long ago and I can assure the House that the lessons from the Mubarek incident have been well and truly learned and taken on board, so that there is now an entirely different, albeit imperfect, regime for young people in that place. When that youngster died, it took the family years and years of pushing to get what they should have had by right: a candid and open explanation of why their loved one died. Why did it take legal action, which went all the way to the Judicial Committee of the House of Lords, before the family were granted what I suggest the Lords amendment that we seek to defend and that the Government wish to do down would provide?
I think that the hon. and learned Gentleman is mixing up two different things. The measure would not have provided that. While it would have provided a criminal remedy to punish those involved, it would probably not have given answers to what happened. The Government’s proposal, with, for example, new statutory powers for the ombudsman—I do not think that the ombudsman was in force at the time—would start to deal with the questions of what happened to Mubarek, which, I think, is what the family is especially concerned about. The Bill will create a deterrent effect and allow a prosecution to take place if things go wrong, but it will not necessarily address the specific point that the hon. and learned Gentleman raises.
I suspect that it probably will. While I take on board the hon. Gentleman’s assertion that my argument is marginally off-beam, given that the Bill provides for a post-event criminal procedure, I suggest that the Bill could none the less provide a deterrent through an anticipatory effect.
The Minister argued—it was not the best point that he made, but he was repeating Government Members in another place—that the courts should not interfere with public policy making and resource allocation. When I intervened on my hon. Friend the shadow Attorney-General, I hope that we dealt with that. I hope that the hon. Member for Hendon will agree that it was obvious that the passing of the Human Rights Act 1998 and the domestication of the convention into UK law would lead to issues of public policy being the fiercely fought subject of argument in the courts. The courts do their best to respect the separation of powers and to understand the difference between what they do and what we do. However, the law, be it the common law or statute law—we are talking about statute law here—can drive policy, even if that should not be made in the courts.
The Government lack confidence in their arguments about the way in which to proceed. If they are saying that amending legislation in the future by way of their proposed amendment in lieu will address this question adequately, they are selling themselves short and not doing themselves justice. If they really believe, as I suspect that they do, that they want to prevent deaths in custody and that any death in custody should be properly examined, with reasons given publicly, they ought to do what Lord Ramsbotham’s amendments propose. They should follow the logic of their arguments, but at the moment I am concerned.
Let me finish with several points that emerge from a report by the Joint Committee on Human Rights, which is chaired by the hon. Member for Hendon. As several hon. Members have pointed out, the Joint Committee made three criticisms of the Government’s position, which I shall take in reverse order. Paragraph 2.12 of the Joint Committee’s report in which the Bill was considered said that
“the Government seeks to justify the exclusions on the ground that criminal investigations are costly and disruptive and it would not be in the public interest to impose a resources burden on the Crown. In our view this concern with cost and resources belittles the importance of what is at stake: the right to life.”
If the Government were making a good argument about cost, we would never have any lengthy criminal investigations. The terrorist trials that recently concluded would never have got anywhere on the basis of cost, while the King’s Cross disaster would never have been investigated. Those investigative procedures were hugely expensive. When the right to life—the article 2 right under the convention, which the Government claim to have brought home to this country—is at stake, while one should bear cost in mind, it should not be a trump card.
The Government’s second argument was that
“public bodies are subject to wider forms of accountability, including accountability to Parliament, accountability under the Human Rights Act 1998, accountability through public inquiries and the existence of specific watchdogs such as the Independent Police Complaints Commission.”
That may or may not be true, but it is not an adequate answer to the arguments put forward by those who support Lord Ramsbotham’s amendments. The Minister places reliance on the prisons and probation ombudsman, but one need only think back a few weeks to when the Government, through the Treasury and the Department for Work and Pensions, completely ignored and vilified an ombudsman’s findings on occupational pensions. The hon. Member for Slough (Fiona Mactaggart), who is no longer in the Chamber, said quite candidly, as a former Home Office Minister, that the Government have form in that respect. If the Government are prepared to act in that way on economics and pensions, which are not life-and-death issues, surely we can expect them not to pay much attention to disobliging reports from other ombudsmen. At any rate, it might not give us much confidence that they will do anything in response to an ombudsman’s report. I therefore urge the Government to be a little more careful in deploying that argument.
The Government’s third point was that
“decisions taken by public bodies when exercising public functions have a public policy dimension, involving matters such as the allocation of public resources, which are matters more appropriate for an elected Government to decide than for criminal courts.”
Again, that is a confused argument. It misunderstands the consequences of the Government’s own policy of introducing the Human Rights Act 1998. It also misunderstands the evolving nature of public policy and the public interest.
The hon. Member for Hendon mentioned his private practice; let me mention my experience as a practising lawyer in the field of defamation. What is defamatory changes as public opinion and public standards change. It used to be defamatory to accuse someone of being a Roman Catholic, but that is no longer so. It used to be obviously defamatory to accuse someone of being a homosexual; that situation is on the edge at the moment. Public mores and attitudes change, and so the public policy behind the development of common law changes. The Government’s attitude towards the public policy dimension arguments is too rigid, and they fail to understand the importance of the way in which public opinion is changing. The public expect greater access to the hidden world of prisons, and they expect the courts to police deaths in custody. We should not stand in the way of that, and nor should the Government.
I will end my comments now, because the points have been made, both with great force and with great gentleness, by a number of speakers. I hope that the Government will listen carefully to what those who disagree with them have said, and to the undertone of what the right hon. Member for Southampton, Itchen and the hon. Member for Hendon said. Although they are supporters of the Government—and why should they not be?—I suspect that they do not want to be pushed too far. In light of what hon. Members on both sides of the Chamber have said, if the Bill returns to the other place without having met the concerns expressed in the amendments that I am seeking to defend, I would urge Members in the other place to stick to their guns. They should advise the Government to think hard about the matter, and to alter their view.
I expect that the Minister has got bored of compliments, but he knows what we think of him. However, we also know that he is between a rock and a hard place in many different ways. Lady Scotland said in the House of Lords that the Government were not brave enough yet to do what Lord Ramsbotham required of them. Why does not this Minister be brave enough?
I, too, hope that the House does not reject the amendments in this group that the other place has sent us for consideration. I shall make three brief comments about those amendments and the Government’s amendment in lieu.
First, I join in the general acclaim for the way in which the Minister has dealt with the legislation and the amount of movement that he has caused the Government to make. However, in doing so, he has put himself and the Government in a somewhat odd position. He has, as my hon. and learned Friend the Member for Harborough (Mr. Garnier) said, conceded the principle that deaths in custody could potentially be subject to corporate manslaughter prosecutions.
Having conceded that principle, the Minister goes on to argue that the reason why those cases should not currently be subject to corporate manslaughter prosecutions is that there will be further protections for those in custody later, and that the Government are working hard—I take him at his word on that—to ensure that there are other measures, some of which he spelled out, which ensure that, though the present position is unsatisfactory and there are not sufficient protections for those currently in custody, there soon will be.
If that is the Minister’s argument, and if those who are in custody will in future, we hope, be less vulnerable than they are now, their present vulnerability is potentially more deserving of the protection of a corporate manslaughter prosecution than it ever will be. Therefore, there must surely be a good argument for including corporate manslaughter protection for those who are in custody now, if there ever is a good argument for that. I agree entirely with the hon. Member for Kingston and Surbiton (Mr. Davey); I see no reason why it should not be now if it could be later.
Secondly, when we discuss the matter in the House we should be clear that we are not talking about laying the Prison Service or prison governors open to any false or vexatious prosecution claim. The standard of proof in the matter is high. It is clear from the Bill as it stands—the amendments do not cover this point—that in order to establish guilt of corporate manslaughter and responsibility for a death of that kind, there must be a gross breach of the relevant duty of care. That breach is defined as amounting to a breach of the duty which
“falls far below what can reasonably be expected of the organisation in the circumstances”.
The Minister and others have made perfectly reasonable points about the differences between the challenges faced by those in the Prison Service and by those in other situations. That is entirely fair comment, but any jury and any prosecuting authority would be expected to consider those differences and those particular challenges in deciding whether a prosecution should be brought in the first place. By enabling deaths in custody potentially to be covered by the law, we would not be opening the floodgates. We should therefore have confidence that we can include it without that danger.
Thirdly, as other Members have said throughout consideration of the Bill, this is a Bill and hopefully an Act which has been long awaited by a great many people. It will be watched and scrutinised carefully by those who have waited so long for it to go on the statute book. It would be tragic if the legislation gave the impression that the private sector is vulnerable to corporate manslaughter prosecutions but the public sector is not, and that in some way protections have been given to those in the public sphere which are no longer, quite properly, available to those in the private sphere.
I know, of course, that that is not the Government’s intention, but it would be tragic if that impression were given. I fear that if we exclude deaths in custody, as the Government wish, there will be that danger. It is right that hard cases make bad law. That has always been true and it is true in this case too, but it would be unfortunate if we ended up making bad law by trying to exclude those cases that may be hard for the Government to deal with. For those reasons, I hope very much that the amendments from the other place will be accepted.
I thank all hon. Members for the quality of the debate and for their welcome for the way in which the Government have listened to what has been said in the various debates in both Houses. I am grateful to my hon. Friend the Member for Hendon (Mr. Dismore) and my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) for their support for what is a real compromise. I understand where the Opposition are coming from and it is not surprising that they are not prepared to go along with it, but I hope that I can assure them of our earnestness in what we seek to achieve.
The hon. Member for Rugby and Kenilworth (Jeremy Wright) hit the nail on the head on the view of those outside the House on the Bill. He is right that it has taken a long time for the Bill to reach this stage and it has been many years in waiting, but it is important that it be seen in the context of the way in which it was introduced as health and safety legislation—the missing piece of legislation in holding corporate bodies to account. That was the Bill’s aspiration.
I acknowledge and accept the thanks for the Government’s major step forward in removing Crown immunity. We are the first Government to do that, so I hope that hon. Members will understand our concern about moving too far too quickly. The hon. and learned Member for Harborough (Mr. Garnier) may say that that is said too often, but in these circumstances it is the right approach.
May I have one more go at the Minister on this point? In Glasgow tonight there will be 60,000 Spanish football fans. When they travel by the airlines they will be owed a duty of care by the operators. When they go to sleep tonight in their hotel rooms they will be owed a duty of care by the hotel companies. When they go to Hampden Park, they will be owed a duty of care by the Scottish Football Association. If they have a drink too many, fall down and are arrested for their own protection by Strathclyde police, the duty of care will cease. Is that not just an inconsistency too far?
We have to remember that in the Bill the duty of care has to be seen in the context of a gross breach of procedure. Hon. Members have understandably focused on deaths in custody, but we must see the Bill in its wider context, and putting that measure in the Bill at this time will not solve the problem of deaths in custody. That is why, as my hon. Friend the Member for Hendon said, it is important to look at what we propose on the forum for preventing deaths in custody and the changes that we seek with regard to the prisons and probation ombudsman. I understand the focus on deaths in custody this evening, but I ask hon. Members to look at the bigger picture of what needs to happen. The proposal would not solve the issues around deaths in custody, because we need to continue the work of a variety of committees that have made recommendations to the Government on how to deal with that matter.
There is no sense of the Government trying to protect their position or seeking to tell the director general of the Prison Service that he is off the hook and has nothing to worry about, as my right hon. Friend the Member for Southampton, Itchen said. That is certainly not the case and that is why I attach a lot of importance to the forum for preventing deaths in custody and the changes that we seek with regard to the prisons and probation ombudsman.
There are pressures on prisons, and today’s debate has focused on prisons, although the definition of custody can be wider and the powers that we propose give us the flexibility to cover the other definition of custody that has been mentioned. I want us to learn from the experiences of the Bill and to look at what can be achieved through other work in relation to deaths in custody.
Again, I pay tribute to my right hon. Friend the Member for Southampton, Itchen and my hon. Friend the Member for Hendon for the work that their Committees have done in considering this issue. They have rightly pushed us to reconsider the issue, and I am pleased that they are both happy to accept the spirit of what we are trying to achieve. Anybody who thinks that they could be bought off so cheaply does not know the depth of experience and skills that they have.
The forum is already working well in bringing together practitioner and inspectorate professionals to compare approaches. The review can consider many issues, including greater autonomy from Government, increased ability to conduct research, more capacity for information sharing, coroners’ rules and prisoner escorts. I hope that we will be able to report on progress within six months.
I am sure that the chair of the forum will be robust, as he already has been in talking to me, about what he would regard as the details of how we should reform measures. We want to make the review work and I would hope that the forum will come back to us within six months. That is a reasonable time scale. [Interruption.] In setting up a review, people do not want to say what the outcome will be; they talk about its remit. I would hope that the points that my hon. Friend the Member for Hendon has raised, and points that the chair raises, will be considered.
I am sorry to have to press the Minister on this. Is the implication behind his comments that, if the forum were to come up with conclusions that appealed to the Government, they might never enact the relevant statutory instrument? There is another way of doing this. The Government will not simply enact the legislation in the form in which it has come from the other place, but they could take the necessary time for the preliminary stages before bringing it into force. It would be easy for them to do that without any further amendment. The Minister will understand that one of the anxieties in the House is that although he is saying what is absolutely truthful in his own mind, it will be brushed under the carpet and will never happen.
I do not accept that. That will not be the case because, as my right hon. Friend the Member for Southampton, Itchen said, the very fact that the principle is there will mean that people will pursue its detail. I have no doubt about that. I am arguing that it is not a panacea for dealing with deaths in custody. In my view, we need to work hard on the forum and we want to make it clear that the prisons and probation ombudsman will be independent from the Government. We want to ensure that he has the formal duty to investigate all deaths in his remit—in prisons, immigration detention, young offender institutions, secure training centres—and a statutory remit to determine the scope of and procedures for each investigation. There will also be new High Court powers to obtain evidence.
Those are significant steps. I understand the point about the timetable, but it is no surprise that there is a difference between the Government and the Opposition. I am more inclined to support my hon. Friends’ views and the way in which they have dealt with the Government’s compromises to try to achieve the consensus that we all want. It is no surprise that the Opposition want to defeat the Government—that is the nature of what we do. However, I ask hon. Members to consider what has happened and the considerable movement that the Government have made. The compromise is not window dressing but something genuine to deal with the important issue of death in custody. The whole picture should be examined in the context of the purpose of the Bill.
Most of the recommendations of the Mubarek inquiry have been accepted and implemented. We have held discussions with the Mubarek trust about other things that we can introduce.
I understand why my hon. Friend wants to push me, but he will understand why I decline to be pushed. We want to examine the impact of the concessions that we are making. I hear what he says and we will consider the matter further in the time that is left for the Bill’s passage. However, I remind all hon. Members that it is a carry-over Bill, which most people welcome and want to be implemented.
I hope that the principle behind the compromises on other issues can be applied to our discussion. I hope that hon. Members will support the Government motion.
Question put, That this House disagrees with the Lords in the said amendment:—
Lords amendment disagreed to.
Lords amendments Nos. 3, 5, 6 and 10 disagreed to.
Government amendment (a) in lieu of Lords amendments Nos. 2, 3, 5, 6 and 10 agreed to.
Lords amendment: No. 1
I beg to move, That this House agrees with the Lords in the said amendment.
I am new to the post at the Ministry of Justice, so I have not had the pleasure of taking part in the Committee stage of the Bill, nor have I had the opportunity to see another place in action. I am assured, however, that the amendments brought forward following consideration in another place are now very much welcomed by the Government.
I am pleased to seek the House’s support for the amendments, because the Government have listened to the concerns expressed there. I particularly thank the noble Lord Hunt and the noble Lord Razzall for their support for the amendments. The amendments deal with what sort of organisation can be prosecuted for the new offence, and strengthen the Bill by extending the new offence to certain types of unincorporated body.
There has been a wide measure of support for extending the offence beyond the circumstances of an incorporated body, and I pay tribute to those who pressed the Government on the issue, including the Home Affairs and the Work and Pensions Committees in their scrutiny report on the draft Bill. I also pay tribute to the Under-Secretary of State for Justice, my hon. Friend the Member for Bradford, South (Mr. Sutcliffe), for his work in Committee and in steering the Bill through not just two Houses of Parliament but two Departments—from the Home Office to the Ministry of Justice.
It will be of little comfort to a bereaved family to learn that the most serious criminal penalty for an involuntary killing is not available because the organisation involved lacks a separate legal identity, and the amendments—which we are happy to accept—seek to remedy that.
The new offence of corporate manslaughter is based on the concept of management failure in the organisation, and is not dependent on the guilt of a particular individual. In the case of companies and other corporate bodies, liability under the new offence can be attributed to the corporate legal entity itself. That is not possible in an unincorporated body, which exists as a group of members or individuals and has no separate legal personality. There is a significant difference between the two types of organisation. The amendments respond positively to those problems, and extend the offence to partnerships, trade unions and employers’ organisations. I acknowledge the full support of the Conservatives in another place.
I think it right for us to adopt a cautious approach. Unincorporated bodies are not currently liable for prosecution for manslaughter caused by gross negligence. They include a wide range of smaller and more informal groups, including many in the voluntary and charitable sectors. We do not want to give rise to unwarranted risk aversion in such organisations by exposing them to prosecution for serious offences for the first time, but I think we need to take some action in response to what has been done in the other place.
The amendments seek to strike a balance by extending the offence in the first instance to a defined range of unincorporated bodies including partnerships and bodies with a quasi-corporate status under statute, namely trade unions and employers’ organisations. We have considered monitoring the position to determine whether we should include further organisations. Lords amendment No. 32 provides a power to extend the offence to further categories of organisation through secondary legislation should my noble Friend the Secretary of State, my fellow Ministers and I wish to do so in the future.
Other amendments in the group are consequential on the extension of the offence to unincorporated bodies, but I draw particular attention to Lords amendment No. 28, which ensures that there is no loophole in the offence because partnerships do not themselves owe a duty of care. Lords amendment No. 35 adds the National School of Government to the list in schedule 1. The school became a non-ministerial Government Department in January 2007, and needs to be added to the schedule to bring it into line with the other bodies in the list.
I think that hon. Members on both sides of the House should welcome the Lords amendments.
I welcome the Minister to what I believe is his first outing to deal with legislation on behalf of his new Department. It was probably wise of him to delay it until after the resolution of the issue that we debated before this, because he can now enjoy all the pleasures of wallowing in consensus.
As the Minister said, it was the other place that did the necessary work with the Government’s co-operation, but in fairness to those who took part in the Committee stage, I should point out that the issue was first flagged up then. I have no doubt that the Government were right to add partnerships, trade unions and employers’ associations which are not corporations. As we established in Committee, some partnerships—for instance, legal partnerships—are now multi-million pound businesses which, if they were ever allowed to incorporate or indeed to float, would probably go into the FTSE 100 immediately, and I believe that such large organisations should be covered by the Bill.
I agree with the Minister that we should be careful about the degree to which we extend the scope of legislation of this type. However, once the clear decision was made that we were not criminalising individuals—which I regard as fundamental to the legislation—the scope in this measure became closer in nature to the scope of regulatory offences covered by the Health and Safety at Work, etc. Act 1974, which, as the Minister knows, has been applied to undertakings. Its scope is still wider than that of this Bill, because it includes individuals who are running businesses, which would not be appropriate here, but it certainly includes partnerships, trade unions and employers’ associations in its remit. I did not understand in Committee why we were excluding those groups from the scope of the Bill, so I welcome this step.
I also welcome amendments Nos. 32 and 35. Amendment No. 32 would
“extend section 1 to other organisations”,
which I welcome. However, let me make a plea to the Minister—although I suspect that it will fall on deaf ears because whoever drafts the statutory instrument will not deal with it. If we are to add organisations, it is essential that we do one of two things: either that we add them one at a time so that when the time comes to vote we can vote on individual organisations and not on packages, or—which I fear is more likely—that there is proper pre-legislative consultation before we add them. The great objection that I have always had to statutory instruments as a means of varying primary legislation is that they do all or nothing. In terms of adding organisations, one far too often ends up facing the classic problem of approving of four of them and not wanting one. They are a bad way to legislate. However, I welcome the amendments.
I raised the issue we are discussing on Second Reading and on Report, which shows how strongly I feel about it. My main concern is to do with differential treatment between different groups. I cannot see any justification for not having the original formulation of undertakings from the 2000 consultation. In my Committee’s view, article 14 of the European convention on human rights is engaged because the various restrictions, exclusions and exemptions—even with the extensions—give rise to different treatment of individuals in analogous situations in relation to their access to the criminal law in respect of negligently caused death.
My Committee noted that the Government had previously accepted that to restrict the scope of the offence by excluding unincorporated bodies generally
“could lead to an inconsistency of approach and these distinctions might appear arbitrary.”
That is when the issue of undertakings first arose. It was not included in the original 1996 Law Commission paper, but it was introduced by the Government in the 2000 consultation. I thought that that was a better way of dealing with the problem.
If the hon. Gentleman recalls the relevant debates, he will remember that I suggested there was a completely different way of approaching the proposed legislation which would have enabled undertakings to feature prominently. However, there is a problem: having an undertaking which may be an individual trader under the Corporate Manslaughter and Corporate Homicide Bill has an internal inconsistency that we simply cannot get away from.
The hon. Gentleman makes a fair point, which I was going to address. When we reviewed the progress of the Bill in our report, we suggested that excluding undertakings in order to deal with the sole trader question would be to throw the baby out with the bath water. We suggested that that would put matters back to front, and that what we should have is undertakings as a general inclusion with an exemption for sole traders. That would be a neater and more consistent way of dealing with the problem. In our view, the case law of the European Court of Human Rights shows that the public nature of a body’s function has not been regarded as a reason for excluding criminal liability, but that on the contrary it has been treated as a factor which strengthens the obligations to ensure that recourse to criminal law is available.
The original and obvious answer to this problem would be to revert to undertakings, but it does not appear that that is obvious to the Government. Therefore, we have the amendments before us now which deal with partnerships, trade unions and employers’ associations which are employers. However, many organisations would still be excluded, such as schools. Schools—particularly large schools—are effectively businesses, sometimes with budgets worth millions of pounds, and I would be concerned for the parents of children who were found to have died in grossly negligent circumstances if schools were to be excluded from prosecution. That has happened.
Similarly on charities, I accept that an argument could be made in respect of small charities but some charities are enormous, multi-million pound international organisations. Why should their staff not have the protection of this law just because it happens to be the case that their charity is not incorporated or is not a partnership? That would be unfair. We would then have a differential between one group of people and another in terms of the protection of the law. The problem is similar to that discussed in the previous debate, except that there is no light at the end of the tunnel to deal with it.
I certainly do not want to resist the Government amendments, which do constitute progress, but they do not deal with the basic problem of article 14 and differential treatment, and they certainly do not provide the protection that the Bill should provide.
I rise simply to support the amendments and to echo the comments of the hon. Member for Hendon (Mr. Dismore). It would have been nice if the Government had listened to everything that we argued for and had included unincorporated organisations fully, whether through the undertakings approach or by linking unincorporated bodies with partnerships, but progress has been made and this place and the other place have helped to achieve it. However, when does the Minister think that the Government might review the measure and take on board the arguments of the hon. Member for Hendon?
I am grateful to the official Opposition and to the Liberal Democrats for their support for the amendments that were introduced in another place. Let me give credit where it was due: this issue was raised by the hon. Member for Beaconsfield (Mr. Grieve) in Committee.
Indeed. I was not in Committee at that time, but I am studying with interest this legislation’s progress to date.
Various issues have been raised and I hope that I can offer some comfort. The hon. Member for Beaconsfield said that he welcomed the fact that amendment No. 32 allows for additions to be considered in due course; indeed, it has been tabled for that specific purpose. In my view, we have struck the right balance. We need to examine what progress is made and, if suggestions are forthcoming, we will consider exercising the power in due course.
The hon. Gentleman also raised the valid questions of whether we should adopt a take-it-or-leave-it approach and what consultation we would undertake. I can assure him on the Government’s behalf that consultation would be central to any additions. If it became clear that we needed to add bodies to the regulations, we would consult widely. The adoption of a take-it-or-leave-it approach would depend on the circumstances, parliamentary time and a number of other factors, but I recognise that it would cause difficulties and, where possible, I will avoid such a situation.
My hon. Friend the Member for Hendon (Mr. Dismore) raised a number of issues. I point out that if amendment No. 32 is accepted, we can add bodies to the scope of the regulations. Local education authorities and school governing bodies are indeed now corporate bodies and are already covered by the offence; I hope that that gives some assurance to my hon. Friend. A good number of charities and voluntary organisations—
I will have to reflect on that point, because I am not clear whether city academies are themselves corporate bodies. However, I am well aware that local education authorities and school governing bodies are corporate bodies within the local education sector. If my hon. Friend will allow me, I will reflect on that point and if I have an answer before I complete my comments, I will give it to him. If not, I will get back to him.
A good number of charities are indeed corporate bodies and are already covered. I want to ensure that we do not add a burden to smaller charities in particular. I will reflect on this issue and examine in detail whether such bodies might be added under amendment No. 32, should it be accepted. [Interruption.] My understanding, on reflection, is that city academies do constitute corporate bodies, on a similar basis to education authorities and schools; I hope that that helps my hon. Friend.
This issue has been the subject of much debate. The Government can often be accused of not listening to such debates; however, following discussions on Second Reading, in Committee and in the other place, the then Home Office Minister with responsibility for these matters, my hon. Friend the Member for Bradford, South (Mr. Sutcliffe), reached an agreement with the Opposition. I pay tribute to those involved here and in the other place, and I hope that the amendment will be accepted and that we can make progress.
Lords amendment agreed to.
Meaning of “relevant duty of care”
Lords amendment: No. 4.
These amendments make minor and drafting amendments to the Bill. This group deals with several amendments made in the other place by the Government to make technical and non-substantive changes to the Bill. Amendment No. 33 introduces a new interpretation clause which gathers together several definitions previously dispersed throughout the Bill. It also provides definitions of “employee”, “employers association”, “partnership” and “trade union” following the extension of the Bill to certain unincorporated bodies. Amendments Nos. 4, 7 to 9, 11, 14, 16 to 18, 24, 26 and 33 are consequential on the new clause.
Amendments Nos. 12, 13 and 15 correct two earlier oversights and make minor changes to clause 6 to ensure that it applies comprehensively to NHS bodies and those working on their behalf. Specifically, they add the Secretary of State and Welsh Ministers to the range of potential commissioners of ambulance or transport services to which clause 6 applies, and they correct the earlier omission of strategic health authorities. Amendment 34 clarifies that separate commencement of the Bill’s provisions is possible, while other amendments in this group—amendments Nos. 19, 20, 21, 23 and 26—make minor drafting and technical changes. With that explanation, I hope that the House will support the amendments.
All these amendments seem to be very sensible. I will draw the amendment allowing separate commencement of different parts of the Bill specifically to the attention of my colleagues in the other place, insofar as it might have a bearing on the debate that we had earlier this afternoon.
Amendment No. 25 goes to an important aspect of the Bill that we considered in some detail in our debates in this House—the question of what sanctions should apply to an organisation convicted of corporate manslaughter. As an offence is committed by the organisation itself, and not an individual, the principal response to date has been a fine and that is the only sanction available for companies convicted of manslaughter under the current law. The Bill goes one step further by introducing the possibility of remedial orders, currently only available under health and safety law.
Hon. Members urged the Government to think more imaginatively and I pay particular tribute to the efforts of my hon. Friends the Members for Eccles (Ian Stewart) and for Manchester, Central (Tony Lloyd) in this respect. The Government reflected on those arguments and were persuaded to bring forward amendments in the other place to provide for the innovative sanction of publicity orders in the Bill. The publicity orders received the backing of Professor McRory’s review of regulatory penalties, which found that organisations were likely to take them very seriously.
Lords amendment No. 25 therefore gives the court the power to order an organisation to publicise the fact of its conviction and to specify particulars of the offence, the amount of any fine imposed and the terms of any remedial order that has been made. Prior to setting an order, and depending on the circumstances of the case, the judge will be required to ascertain the views of the appropriate regulatory authority—such as the Health and Safety Executive—and of the prosecution.
That will ensure that the judge receives practical assistance in setting the order, and provide an opportunity to establish the views of the victim’s family. As with other penalties, the defence will also be able to make representations to the judge before the order is made.
In setting an order, the judge will be able to require the organisation to supply evidence that it has complied with the order to the appropriate regulator, if that regulator has been consulted. That provides a means of ascertaining that the order has been implemented. Similarly, Lords amendment No. 22 improves the monitoring of remedial orders by giving courts the power to order an organisation to provide evidence of compliance to the regulator consulted when the order was drawn up.
While we expect that the health and safety regulators will monitor closely the safety regime in any organisation convicted of corporate manslaughter or corporate homicide, Lords amendment No. 22 builds in an extra safeguard to provide that the organisation takes positive action to demonstrate its compliance if the court considers that appropriate. The amendment is important, and I commend it to the House.
I am delighted with Lords amendment No. 25, which will be a very powerful tool in shaming organisations convicted of corporate manslaughter. My experience as a prosecutor in health and safety cases is that, much more than fines, adverse publicity has always been the principal anxiety for larger corporations. Although the fine penalties in these cases are likely to be higher than those in health and safety cases, they will remain perfectly bearable. I have noted in the past the care with which corporations try to handle the media at the court when they are convicted, and that shows that adverse publicity is something that really matters to them.
The Bill now provides some really inventive possibilities. Requiring large corporations to take out advertisements in national newspapers to publicise their own conviction, and the nature of it, is a very powerful tool. I am wholly comfortable with that, but the courts will ensure that the requirement is proportionate.
I welcome the provision very much, and I am glad that the Government have made use of the extensive discussions in this House and the other place to take a very important step forward.
I agree with what the hon. Member for Beaconsfield (Mr. Grieve) has just said. It is difficult to envisage fines much higher than the £4 million levied in relation to the Ladbroke Grove train crash, although that should be contrasted with the £5 million that West Ham had to pay over unregistered players. That shows that victims’ families will still face a degree of injustice when they seek reparation for an incident.
That is important, because the media operations surrounding such convictions have become increasingly professional in their attempt to downplay or minimise what happened. If a court order can be used to get around a company’s PR machine, that is very welcome. However, I shall go further than the hon. Member for Beaconsfield, as I hope that the judges who issue the orders will be a little more imaginative too. They should do more than require newspaper advertisements to be taken out. In big incidents that receive worldwide television publicity, they should ensure that the ensuing apology and conviction are also the subject of a TV advertisement.
Regardless of the adverse publicity that would be incurred, that could be quite expensive for the organisation that has to pay the bill. I therefore hope that my hon. Friend the Minister will confirm that publicity orders cover a much wider range of media than merely newspapers.
I rise to agree with the contributions from the hon. Members for Beaconsfield (Mr Grieve) and for Hendon (Mr. Dismore). This provision is a welcome addition to the Bill, and for large corporations it may even have more impact than the fines that might be imposed. We should recognise that such organisations spend millions on their PR departments: for some, PR and brand management are critical to their business, so ensuring that corporations that commit serious offences get the bad publicity that they deserve is exactly the right thing to do. The provision will have a major deterrent impact, because it gives corporations an incentive to get things right in the first place so that they are not responsible for a death. The amendment will have exactly the effect the Minister wanted, and I congratulate him and those in another place for proposing it.
I am grateful to Members for their support. I agree that the amendment will be a significant part of the Bill.
In response to my hon. Friend the Member for Hendon (Mr. Dismore), we shall be looking at forms other than newspapers. In the world of corporate social responsibility, where companies use a range of gambits to show that they are being socially responsible, the provision will be a wonderful tool to bring them to book. It will do one of the things we wanted the Bill to do—ensure that prevention is considered in the procedures of corporate bodies.
I commend the amendment to the House.
Lords amendment agreed to.
Lords amendments Nos. 23 to 29 agreed to.
After Clause 16
Lords amendment: No. 30.
I beg to move, That this House agrees with the Lords in the said amendment.
In similar vein to the amendments on unincorporated bodies and publicity orders, the Government introduced the amendment in the other place in response to concerns raised in the House. On Report, a question was put as to whether the new offence might have the perverse effect of decreasing individual convictions on a secondary basis for health and safety offences if a successful prosecution for corporate manslaughter meant that health and safety charges could not be put to a jury. That would be an unintended consequence of the new offence. After reflection, we decided that there was merit in making the position clear on the face of the Bill by expressly stating that a conviction for corporate manslaughter would not preclude an organisation’s being convicted for a health and safety offence on the same facts if it was in the interests of justice.
As a result, it is clear that, in appropriate circumstances, proceedings can also be taken against individuals on a secondary basis for health and safety offences, notwithstanding a successful corporate manslaughter prosecution. The provision does not impose new liabilities on individuals, but makes sure that existing liabilities are not inadvertently reduced by the new offence.
With that explanation, I hope that the House will support the amendment.
I certainly welcome the amendment. It responds to concerns that I raised in the course of our discussions, which may have been raised by other Members, too—that the Bill might have the unintended consequence of making health and safety convictions more difficult. Above all, we wanted to ensure that there was a possibility of offering juries a hierarchy of convictions when they were considering an offence all in one trial: that, the amendment does.
I confess that, although I am completely happy with subsection (2), I find it difficult to envisage a circumstance in which a corporation convicted of corporate manslaughter might be prosecuted at a later stage for a regulatory breach arising out of some or all of the same facts. I simply flag that up. It would be rather undesirable if that were to happen, because of the costs involved. It would clearly mean looking in the second trial at facts that were looked at in the first. If this is a belt-and-braces provision, I certainly will not stand in its way, but I hope that the Minister will provide me with some slight reassurance about the circumstances in which it is envisaged that the provision would be used, because in reality it is unlikely that it would be required. Subject to that, the broad thrust of the new clause—and of subsection (1) in particular—is one with which I am entirely comfortable and which I welcome.
We need to look at the reasons why the amendment was necessary. It was necessary because of the biggest single flaw in the Bill: the lack of individual liability. That is where the Bill falls dramatically short. When the public hear that we are introducing an offence of corporate manslaughter, they expect the consequence of a conviction to be that directors and senior managers will be locked up, but that is one thing that the Bill will not deliver. The Bill will not meet the public’s expectation. The amendment is a half-hearted way of trying to address that expectation. I certainly do not disagree with the amendment; in fact, I support it. But it is a weak, mealy-mouthed, half-way house when it comes to what the public expect from a new offence of corporate manslaughter.
The amendment was necessary because the way in which the Bill was originally phrased meant that directors were less liable to face prosecution than if the new offence had not been introduced in the first place. To charge a health and safety regulatory offence on the same facts as corporate manslaughter would effectively be a duplicitous indictment and could not therefore be sustained in the Crown court. So, now we have to amend criminal law procedure to allow a duplicitous indictment, so that the offence under section 37 of the Health and Safety at Work, etc. Act 1974 can then be charged against the individual director. That whole weird chain of events follows on from the fact that the Government did not draft the Bill sufficiently strongly in the first place to ensure that it delivers what the public expect.
The amendment means that an individual director could be charged under the Health and Safety at Work, etc. Act with the circumstances giving rise to the corporate manslaughter conviction. But, under that Act, they could be charged only with what is effectively a much less strong regulatory offence. With clause 16 of the Bill excluding individual liability for secondary offences, I believe that one of the main targets for reform has been dramatically overlooked. The purpose of the Bill must be to act as a deterrent and without individual liability, it is far less likely to do so.
I understand that the Government are considering amending the Health and Safety at Work, etc. Act to create some new individual statutory duties on directors to take reasonable steps to comply with health and safety requirements. I welcome that and perhaps the Minister can explain how far those discussions have gone when he replies. But I am not quite sure how much that will add to the section 37 liability under the Health and Safety at Work, etc. Act, which provides for an individual offence by a director if the company is convicted.
What I find really irksome is that we are prepared to go behind the corporate veil and convict a director if his company commits a health and safety at work regulatory offence, but we are not prepared to go behind the corporate veil if his company commits corporate manslaughter. That cannot be right. That is where the Bill falls dramatically short of what the public expect and therefore, although I have campaigned for the legislation for 20 years and very much welcome it, in the end I can give the Bill only two, rather than three, cheers.
May I endorse everything that the hon. Member for Hendon (Mr. Dismore) has said? The test of the Bill will be whether families feel that justice has been done. I had a constituent, Simon Jones, who was a student at Sussex university. To augment his grant, he worked at Shoreham docks. On his first day, tragically he was put in a place of work in the bowels of a ship, where no one could see what was happening. In effect, he was decapitated. I sat with his family in the public gallery at the Bailey when the prosecution was brought, but no one was ever convicted, so the family got no closure.
I agree with the hon. Member for Hendon that it is perverse that we will go behind the corporate veil on health and safety offences, yet that no individual in any circumstances, however gross, will be liable for prosecution for corporate manslaughter. The test for the Bill—I hope that it will not be 20 years before the House considers the matter again—will be whether families in our constituencies whose loved ones have been killed at work through negligence for which people are culpable feel that the Bill is capable of providing that justice will be done.
I am grateful to hon. Members for their support. I would not minimise in any way the effect of such deaths on families, which is the motivation behind the Bill and the wider health and safety package.
We have debated individual liability extensively throughout the Bill’s passage. The Government and the official Opposition agreed that individual liability was not appropriate for this Bill—[Interruption.] I understand that others took a different view. However, this takes nothing away from the many years of campaigning undertaken by my hon. Friend the Member for Hendon (Mr. Dismore). He should take great heart from the fact that he has helped to shape the Bill, even though it falls short of his requirements. He is right that we want to examine individual liability through a review of the Health and Safety at Work, etc. Act 1974. My hon. Friends the Members for Manchester, Central (Tony Lloyd) and for Eccles (Ian Stewart) are pursuing that matter with Work and Pensions Ministers.
It is the case that directors may be liable. In Committee, I said that the Health and Safety Commission had examined in depth with stakeholders the idea of statutory duties for managers on health and safety management. Work is being carried out on guidance, and there are already provisions on disqualification under health and safety legislation, which is why that is appropriate route through which to deal with individual liability.
The hon. Member for Beaconsfield (Mr. Grieve) is right that this is a belt-and-braces provision. The measure is designed to deal with a situation in which an individual defendant cannot be identified in a jurisdiction at the point at which corporate proceedings are brought.
The spirit of our proceedings on the Lords amendments has shown how Parliament can bring things together positively, despite the notable occasion on which there was disagreement. I am grateful to hon. Members for their participation and to all the officials who have worked to try to get the Bill into its present shape. I hope that the House will support the Lords amendment.
Lords amendment agreed to.
Lords amendments Nos. 31 to 35 agreed to.
EUROPEAN UNION DOCUMENTS
Motion made, and Question put forthwith, pursuant to Standing Order No. 119(9) (European Standing Committees),
Competition: Retail Banking
That this House takes note of European Union Document No. 6238/07 and Addendum 1, Sector inquiry under Article 17 of Regulation (EC) No. 1/2003 on retail banking (Final Report); supports the Government’s view that the use of competition policy, via this sector inquiry, is an integral part of developing the Single Market in financial services; and further supports the Government’s hope that the Commission, Member States and National Competition Authorities will use the information provided by the inquiry to address any issues identified.—[Mr. Alan Campbell.]
Question agreed to.
Motion made, and Question put forthwith, pursuant to Standing Order No. 25 (Periodic adjournments.),
That this House, at its rising on Thursday 24th May 2007, do adjourn till Monday 4th June 2007.
That this House, at its rising on Thursday 26th July 2007, do adjourn till Monday 8th October 2007.—[ Mr. Alan Campbell.]
Question agreed to.
NOTICES OF QUESTIONS ETC DURING SEPTEMBER 2007
Motion made, and Question put forthwith, pursuant to Standing Order No. 22B(2)(Notices of questions, motions and amendments),
That the days appointed for the tabling and answering of written questions and for written ministerial statements under Standing Order No. 22B (Notices of questions etc. during September) shall be as follows:
Monday 3rd, Wednesday 5th and Monday 10th September 2007.
Monday 10th, Wednesday 12th and Monday 17th September 2007.—[ Mr. Alan Campbell.]
Question agreed to.