Lords Reasons for insisting on their amendments to which the Commons have disagreed and for disagreeing to the Commons amendments to the Bill in lieu, considered.
Lords Reasons: Nos. 2A, 3A, 5A, 6A and 10B.
I beg to move,
That this House insists on its disagreement with the Lords in their amendments Nos. 2, 3, 5, 6 and 10 but does not insist on its amendment 10A in lieu thereof, and proposes amendments (a) and (b) in lieu of the Lords amendments.
Last month, the Bill returned to this House from the other place with a number of amendments. The House was happy to accept the majority of them, many of which address matters first raised and debated in this House. On the remaining issue—the extension of the offence to custody—the Government took a different view. None the less, after listening to the strong views expressed on that both here and in the other place, the Government sought to respond positively and offered a significant concession in the Bill: a power to extend the new offence to custody in the future. We also announced other measures to tackle this important issue. That compromise has been rejected in the other place, which has asked us to consider the issue again. The Government believe that they have gone as far as they are able on this matter.
I wish to explore the compromise issue. If the compromise is only in terms of commencement and the Minister now accepts the principle that the offence will extend to custody, why does he not accept the amendments from another place and simply deal with the commencement issue? On the other hand, if he does not accept the principle and if what is being proposed is merely window dressing, why does he expect the other place or this House to accept it as a compromise?
If the Government have now accepted the principle, they must be able to estimate how long it will take to prepare the Prison Service and the police for this change. I am sure that this House would be helpful and indulgent if the Minister were to come forward with a generous time estimate. However, does he not accept that at present we have nothing on offer at all, and that the Government have the power to decide on whether they ever wish to implement the statutory instrument in question?
Does the Minister accept that this is not only about the timetable? In proposed new subsection (5B) in amendment No. 10A, the Government give themselves the power to make exceptions to any of the liability provisions—exceptions over which this House will have no say. Therefore, this is not only about timetable, but about the nature of the liability itself.
I know that the right hon. and learned Gentleman takes a great interest in these matters. I hope during the course of my speech to explain the Government’s position and why we have taken it. The Government have moved a great deal on this matter; that has not been acknowledged in all parts of the House.
The Minister keeps on telling the House that the Government have accepted this in principle. However, when we last discussed this matter he said:
“Whether and when the power is to be exercised will need to be considered in light of the other steps that we are taking.”—[Official Report, 16 May 2007; Vol. 460, c. 669.]
So the Government say that they have conceded in principle but they are reserving the option not to go forward with this power. Why did the Minister say that?
If the hon. Gentleman will allow me to make my speech, he will hear why I am pursuing the arguments that I am pursuing. It was clear from his contributions last time round that he does not think the Government have gone far enough. I certainly accept the proposal in principle, but if he bears with me he will hear my reasoning.
The central issue that divides the Government’s position from that set out in the amendments made in the other place is whether, as has been said, the new offence ought now to extend to custody or whether that is an issue for the future. As I have explained on previous occasions, the Bill’s genesis lies in the difficulties that have arisen when prosecuting large organisations for manslaughter in cases where there have been very real concerns about their management of health and safety—in providing safe working systems for their employees or in the workplace, or when performing activities in the services sector. It was never about holding the Government or public bodies to account for the way in which they discharge public or statutory responsibilities. That point has been recognised in all parts of the House during the Bill’s passage, and the operation of various public services is exempt.
However, the Government also recognised from the outset that the logic of the position in respect of health and safety cut the other way, too, which is why we took the step of also applying the new offence to Crown bodies. We have been very clear that, as an employer and an occupier, there is no reason—other than in a very few limited circumstances—why Government Departments and public authorities should not also be open to prosecution for the new offence.
Can the Minister not see that as far as the public are concerned, if the 5,890 people who died of methicillin-resistant Staphylococcus aureus and Clostridium difficile are excluded, and if the 174 people who died in custody in 2005 are excluded—those figures are for a single year—the Bill is a nonsense?
I am grateful for the right hon. Gentleman’s intervention, but I reject the idea that the Bill is a nonsense. As far as I am concerned, it is the missing part of health and safety legislation in respect of corporate manslaughter; indeed, that was the reasoning behind the Bill’s genesis. The whole purpose of removing Crown immunity where the Crown acts as an employer and occupier was to put ourselves in the same position as many of the private sector companies that will be subject to the Bill.
Lifting Crown immunity brings with it difficulties in drawing the line between which public activities should be subject to the new offence and which should not, as well as considerable uncertainty about the consequences of making Government Departments liable to prosecution for the first time. It is simplistic to say that all activities should be subject to the new offence, and it is to the credit of the House that Members were not tempted down that route in our debates on exemptions; the real difficulties in that regard were recognised.
One of those difficulties is that applying the criminal law to the carrying out of public functions could have wider impacts on the way in which those activities are carried out that might not be desirable or in the overall public interest. It might make those services risk-averse—and by that I do not mean managing risks by making sensible judgments, but taking an over-cautious approach that seeks unrealistically to eliminate risk. It might also affect the way in which resources are allocated between competing policy objectives, which I believe is a judgment for Ministers to make.
It is not enough to say that this is about poor management, not matters of policy. There may well be management issues but, when looking at how public services operate, it will frequently be difficult to disentangle management issues from the wider policy context. It is also not good enough to say that policy might be affected by the courts in other ways. It is of course true that public authorities are required under public law to act reasonably and must respect the obligations imposed by the European convention on human rights. That has always been the case, but the new offence will draw the criminal courts into an examination of how and why particular courses of action were followed, and that will represent a step change. In our view, this means that we must adopt a cautious approach to extending the new offence to the discharge of public responsibilities.
We all agreed that, although this was a Bill that all of us wanted to see enacted, it would provide a good opportunity for corporate and public bodies to get their health and safety activities into a reasonable state so that people are not killed by such bodies. The exemptions are applied in a very open way; indeed, we have tried to be very generous in terms of the Bill’s application.
The House will also recognise the pressures that the Prison Service faces both in managing a very difficult environment and a challenging set of individuals at the best of times, and the immediate pressures on the prison estate. It is not our case that these arguments mean that custody must always be beyond the reach of the new offence, but it does mean that the prudent approach is to see how the new offence beds in across the public sector more widely; to see how the courts approach the interaction in these cases of policy and management in areas such as employer and occupier responsibilities; and to provide time to discuss with the Prison Service and others how implementation can be sensibly managed.
I cannot offer a timetable to the House for exactly when and how those issues can be resolved. Because the position may need to be reviewed more than once, and the issues worked through, the more honest course is to include an order-making power in the Bill rather than simply delay implementation.
I am sorry to return to the point that I made earlier, but the Minister says that he is putting a compromise to the House. He has focused on timetables, but should he not focus more precisely on Government amendment (b), which would allow the Secretary of State to exempt whole classes of liability from any order that he may seek to admit? The debate is not only about the timetable, but about the Government’s ability to limit liability as and when the Secretary of State chooses to make the initiating order.
The right hon. and learned Gentleman will find, as we progress, that the Government’s amendment on the relevant duties of care, and the drafting amendment, will take care of that point. The issue is about timetabling, and that point has been raised by Members on both sides of the House. I am trying to offer a compromise and a way forward on the Prison Service and deaths in custody, and I agree that we need to consider how we would bring that forward. Given the Government’s original position, the proper way is to do as I have outlined. I know that that does not meet with Opposition Members’ favour, but I understand their position.
Is the Government’s logic not back to front? I understand the Minister’s argument that he wants time for the provisions to bed in and to consider the special circumstances in relation to custody, but if the provisions apply in a hotel bedroom or a sleeper carriage on a train, they should apply even more in a prison, because it is not only an issue of custody but of the enhanced duty of care that the state owes to the individual in that position.
I understand where the hon. Gentleman is coming from. He has followed the debates and he will know that there are existing routes for the examination of deaths in prison, including through the coroners’ courts or the prisons and probation ombudsman. The Government’s feeling is that those routes are sufficient to deal with the issues, and to address the issue of prevention. The Government have come a long way and now accept the order-making power. Our original position was that there was no need for that. I make the reasonable argument that we should be cautious about how we apply the power and at what time. It is important that we do not lose sight of the wider context, both in terms of the power itself and the movement the Government have made.
The hon. Member for Beaconsfield (Mr. Grieve) suggested in our previous debate that the Government’s compromise offered very little other than a short cut to extending the offence to custody in the future, but in fact it represents much more than that. It recognises that it is right in principle for the offence to be capable of going wider than the traditional remit of health and safety issues and encompass the management of custody. Providing for the future extension of the offence in that way is a very significant step, making it explicitly clear that that possibility was specifically foreseen by this House and the other place in passing this legislation.
We would not have gone down that route if it was our intention that the power should never be exercised, but I am also clear that the new offence must be allowed to bed in, in its application to Crown bodies and the wider public sector, and the other measures we are taking must also be allowed to settle in, before we consider applying the new offence more widely.
I am saying that the Government have accepted the principle. We are putting in place the two other concessions that we have made to develop a route through that will help in dealing with deaths in custody. That issue was not raised in the wider genesis of this Bill by anyone in this House, but was certainly raised in the other place.
I acknowledge that my hon. Friend the Minister has moved a considerable way during the proceedings on the Bill, and I am most grateful for the way in which he personally has handled the Bill, but I would not want him to sit down thinking that the only objections on the issue of a timetable come from those on the Opposition Benches. There are those of us on the Labour Benches, too, who think that some hint of a timetable needs to be offered.
I thought my hon. Friend the Minister said before he took the previous intervention that the issue of custody had not been raised in the genesis of the Bill. May I gently remind him that the joint committee of the Home Affairs Committee and the Work and Pensions Committee, which scrutinised the Bill, explicitly made a recommendation on this issue. We could see no reason in principle why it should be excluded. We are grateful to the Government for accepting that principle, but it has been around for quite a long time in the discussions.
I am grateful for my hon. Friend’s intervention and his involvement in this issue. I am grateful for the discussion that we have had to enable us to move the Bill forward. I think that everyone recognises that the Bill is necessary; it is an important part of health and safety and it has agreement across the House. I have accepted the principle.
The other two aspects of death in custody need to be looked at and bedded in. We need to discuss the arrangements for independent investigation of deaths in custody. Further steps need to be taken to prevent such deaths from occurring in the first place. Strong practical steps need to be taken to prevent deaths in custody.
The right hon. Gentleman may have read the explanatory notes and seen that we expect 10 or 11 cases. We are talking about corporate manslaughter and gross negligence. The point that he makes about deaths is important. We have to prevent deaths wherever they occur and in whatever way we can. The forum for preventing deaths in custody is an important tool that we need to look at again. We need to consider how we give people support. The issue of the prisons and probation ombudsman and whether he should have statutory powers is also important. We have to allow the measures that will help us to tackle deaths in custody to bed in.
Deaths in custody are a crucial issue. The Government are not saying, “We do not have to do anything about deaths in custody.” Clearly, we do, but we have to consider how the Bill developed and the motivation for it.
The Minister keeps on talking about the motivation for the Bill. I have no idea what the discussions were with the trade unions when the matter started up, but the Minister has to acknowledge that, once he starts a ball rolling, it is perfectly proper for Parliament to look at every aspect of where the law should bite. It started doing so at an early stage, so to suggest that the Bill has been hijacked for nefarious purposes may be something in the mind of the Home Secretary, but he has also been rather delusional on this point.
In a second. The Bill has been well scrutinised, as my hon. Friends have said. It has been welcomed by both sides of industry—by the Confederation of British Industry and the Trades Union Congress, bodies that work actively in this field. The Government’s concession is a major one. I understand why the Opposition are trying to push it further, but if hon. Members look at the details of what we are putting on offer, they will find that it meets their concerns, because the principle has been accepted.
Perhaps my hon. Friend should have given way to me earlier, as I would have said exactly what he has just said. When the Bill began its passage, Members had certain priorities, especially in Committee, so the House should remember that although the process described by the hon. Member for Beaconsfield (Mr. Grieve) is correct, and it is an important issue, other Members have different priorities and it is important that we keep up the pressure for them, too.
I am probably being obtuse, but I simply do not understand how the Minister, on behalf of the Government, can accept the principle on custody that the other place has put into the Bill, yet seem to be arguing as though delaying the provision, or never adopting it, and wanting things to bed down—whatever that may mean—in other aspects of the criminal justice system is a principle of almost equal importance to the first one. Listening to the Minister this afternoon, we have no idea what is stopping him, in real terms, introducing what the Lords have agreed to. In a couple of sentences, can he explain the guts of his argument, in so far as it is sustainable, and then we might be able to make progress?
I seem to have difficulty in debates with the hon. and learned Gentleman in getting him to accept my arguments. I will try, but I am not sure that he will accept what I am about to say. Death in custody is a serious issue and the Government take it seriously, which is why we introduced and developed the forum for preventing deaths in custody and why we want to give powers to the prisons and probation ombudsman to investigate such deaths. We believe that a range of issues needs to be looked at. The Government’s original position on corporate manslaughter was that deaths in custody would not apply; we did not see this legislation as an appropriate route for dealing with that important issue. However, we have moved dramatically to accept the principle that it should be in place, but we want to do two other things, too—to improve the operation of the prisons and probation ombudsman and the forum for preventing deaths in custody. If we do that, we shall deal with issues relating to deaths in custody while accepting the principle that if we need to go further—[Hon. Members: “It is not here.”] It is. The House can have the foresight to put that power on the face of the Bill—the power that has come back to the House for it to decide.
We are in the same position as in our previous debates. Opposition Members accept that the Government have moved and I am pleased that my hon. Friends also accept that. We have come a considerable distance. We have offered practical measures to improve the situation on deaths in custody and we have opened a door in the Bill in relation to the new offence applying to such deaths. We have done the right thing. That door is clearly open.
The other place has sent these amendments to us on two occasions, and the Government have made significant efforts to deal with the concerns they raise. It is time for the other place to play its role as a revising Chamber and allow the Bill to pass on to the statute book. Votes in this place reflect the strength of feeling here, so I hope that the other place will accept the will of the Chamber. I commend the Government’s amendments.
This is very nice. The Minister, with his customary charm, has come to the Dispatch Box to argue the unarguable. It is also nice to be described as right in principle—something every politician and Opposition relish—so I take that as a sincere compliment to Opposition Members and, I suppose, to many of the Minister’s Back-Bench colleagues who share our principle. The problem is that I wish the principle to be translated into practice.
The difficulty is that, yes, the Government have moved, if one makes an assessment of a move by virtue of having regard to the pace of a snail, but I never thought that the Government wished to be characterised as an organisation or organism that moved at a snail’s pace. That is all that the Government have achieved. On top of that, it is a very conditional move, because if the Government choose to retreat back into their shell and resist all predators around them, we will never get any movement on this matter at all.
The Minister has one point in his favour: he has made a case—I accept that it is a case—that there should be a time delay before the measures that the other place has introduced are implemented. If he were to come to the House or, I am sure, if the Government were to go to the other place and suggest a sensible timetable, even one that was generous to the Government to enable the current disorder in the Home Office and the Ministry of Justice to sort itself out, it would be viewed with some sympathy, simply out of regard for the Minister, to put him out of his misery of having to come back to the House repeatedly to continue this debate.
I could not agree more with my right hon. and learned Friend. Indeed, Back-Bench supporters of the Government who wish to help them out of their difficulty should have regard to that nasty little subsection, because it will allow a Government to claim in future that they have honoured their commitment, while implementing only a fraction of the total package that the House wishes them to introduce.
At the risk of repeating what I said on the last occasion—I think that it bears repeating—we are talking of some 2,000 deaths in custody between 1995 and 2005. We are talking of some 10 verdicts by juries of unlawful killing in relation to such deaths. The case of Zahid Mubarek caused something of a national scandal. Between the time when we debated this matter on an earlier occasion and today, we have had the publicity surrounding the death of Adam Rickwood at Hassockfield, a matter on which I would not seek to make a pronouncement. However, I am sure that the Minister would agree that the death in a cell of a 14-year-old by suicide, using his own shoelaces, a number of hours after he was undoubtedly subjected to a restraint technique that might give cause for concern—although it might have been acceptable—when it was quite clear that there were serious problems with his mental state is precisely the sort of case where public disquiet could properly be met by having such a measure on the statute book that allows for proper prosecution where there has been gross negligence by the organisations concerned.
We are talking of trying to do some good and trying to change culture. It may well be, as the Minister said, that in dreaming up the Bill the Government had other targets in mind, but the process of debate proceeds inexorably and, as it has done so, it has become clear that there were problems in some areas and opportunities in others.
We had a really good debate in Committee, and the Bill has been well handled by the Minister. The problem now seems to be that we have a Government or at least a Home Secretary who is completely obdurate, and it is difficult to escape the conclusion, given the absolute lack of give between this Government amendment in lieu and the previous one that we considered, that the Government are showing inflexibility.
If the principle has been conceded—indeed, I detect in the Minister’s tone of voice and in the way he has presented this matter not just a concession of the principle, but a genuine endorsement of it—and if he genuinely endorses the principle, and I dare say that there may be others in the Ministry of Justice who endorse it as well, are we really going to be left with the only option of continuing this ping-pong with the other place until the Home Secretary has mercifully disappeared off the scene completely? I have to say to the Minister that I think peers of all parties in the other place are very resolute on this matter. The Government will find that the Bill will ping-pong for a long time, and each time that it comes back to the House, their standing will be just a little more diminished.
Although I cannot persuade the Minister today, we will stand by the Lords amendments—they are perfectly sensible measures. I urge the Minister to speak to Lord Falconer and the Home Secretary—if they are still on speaking terms now that the Departments have been split—and point out that this matter will cause the Government increasing embarrassment and damage. The sensible course of action would be to take a deep breath, to tell the Prison Service, the police and other organisations, such as local authorities providing secure accommodation, that they must get their house in order and make an assessment, and to set a date for implementing the measures put forward by the other place. When that happens, I will be able to say lots of pleasant things about the Minister—although I have tried to say lots of pleasant things already because I believe he knows that those who are expressing a contrary view to him on this matter are right. If the Government rise to the occasion, perhaps we can avoid further exchanges like this afternoon’s. The Lords amendments should stand.
There was a lot in what the hon. Member for Beaconsfield (Mr. Grieve) said. However, to be fair to the Government, they have moved a great deal, even though a lot of what they have said is not in the Bill or the Government amendments in lieu. Last time, we were offered three things. We were offered a review of the deaths in custody forum, and I was pleased that we were given a timetable of about six months. While the suggestion of a new statutory role and powers for the prison and probation service ombudsman was an old promise rehashed, I hope that we will see a little movement and that my hon. Friend the Minister will be able to tell us a little more about the timetable for that. Of course, the third important issue is what we are discussing now: addressing, in the Bill, deaths in custody. The Government have moved a considerable distance on that since we considered the matter on Report, but the question remains: when will the situation be dealt with?
I would have been happier if Government amendment (b) in lieu had said not
“The Secretary of State may by order”,
but “shall by order”, because that would have given us a degree of certainty that the matter would be continually reviewed and acted on, rather than addressed in a manner that is simply permissive. The absence of the word “shall” means that we need a bit more from the Government on the timetable.
I will not vote against the Government today, because their proposals are similar to what we voted on before. However, as I said to the Minister last time, the discussions that I have held with peers in the other place—members of my Committee and others—suggest that the matter will keep coming back because they feel strongly about it. Deaths in custody have been an issue for the Joint Committee on Human Rights for many years.
Now is the opportunity for my hon. Friend the Minister to put an end to this game of ping-pong. We have only a few weeks before the Bill runs out of time, so sooner or later concessions will have to be made. We do not necessarily need a formal timetable. If we could work to a target date—the Government like targets, and I am quite keen on them, too—that might be a way forward. Without a target, what pressure will there be on the Prison Service and other organisations to encourage them to mend their ways? If we had a date to work towards, at least they would know the time by which they would have to get their house in order.
My hon. Friend accepts that the Government have moved a tremendous distance. The Government accept that deaths in custody represent a key issue. In addition to the amendments, we have offered two important concessions that need to be developed. We have given a time of six months in relation to the forum on deaths in custody and said that the next available piece of legislation will be used to address the subject of the prisons and probation ombudsman. I hope that my hon. Friend understands why it is important for those reasonable steps to bed in before we make further decisions.
I readily accept that those concessions are important, as I did during our previous debate on the Bill. It would be nice to have an idea of when the next available Bill might appear, although I understand that my hon. Friend might not be able to tell us, because of the problems of trying to foresee what will be in the Queen’s Speech. However, the Prison Service needs to know the date by which it needs to get its house in order.
The hon. Gentleman and the Joint Committee on Human Rights, which he chairs, have made a distinguished contribution to the Bill, but will he respond to the point made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg)? Subsection (2)(a) in Government amendment (b) in lieu actually makes the amendment far worse than the amendment that the hon. Member for Hendon (Mr. Dismore) supported on a previous occasion. Is he not concerned that he is supporting a measure that will deliver something completely different from what his Committee backed?
The hon. Gentleman makes a valid point, as did the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). The question is what can be considered a reasonable compromise. I would prefer the provision not to be included, but we are in a political world, and we are trying to reach an agreement and a compromise. If the Minister came forward with a timetable, that would be a satisfactory compromise all round; it would satisfy the other place, too, because it would show not just an acceptance of the principle but, as the hon. Member for Beaconsfield said, an acceptance that there are practical steps to follow. That would be an additional token of the Government’s good faith on the issue.
We are talking about a deterrent effect, but that effect cannot take hold until the Bill is in force. How can we ensure that the Prison Service starts to gear up for that effect? The only way is to have a target date on which the part of the Bill that we are discussing will come into force. There should be a target date, so that bodies can get their act together, and a deterrent effect once the provisions have taken effect. The Government have moved a long way, but I suspect that the other place will still kick the Bill back to us, and we will continue to play ping-pong.
A different Department, the Ministry of Justice, is now dealing with the Bill, and that means that there are people who are prepared to look at the issue with fresh eyes. If the Minister cannot set out a timetable or give a target date today, I hope that he will at least reflect once again on what has been said in the House. Perhaps when the Bill goes back to the House of Lords, the Government spokesman there can give us a date to work towards, in respect of the amendments.
This is one of those slightly surreal debates that we have in the House. The Government say that they accept all the arguments, and that they are on our side and agree with us—but Members across the House are not sure whether they trust the Government. Perhaps we are in a surreal moment in British politics; perhaps we are waiting for 27 June, and perhaps then there will be permission from the Prime Minister to go ahead with the concession that Members of all parties want.
I hope that the hon. Member for Hendon and his colleagues will accept that what is on offer is simply not good enough. Some of us think that there is no need to wait to implement the measures that the other place wants, and that we should put measures on deaths in custody on the same footing as all the other measures in the Bill. However, there is a case for a timetable—the hon. Member for Beaconsfield (Mr. Grieve) began to outline it—or for a commencement order, as my hon. Friend the Member for Somerton and Frome (Mr. Heath) suggested. Frankly, I am not immediately attracted by that option, but it is something that the Government could consider, and they could use it to test the views of this House and the other place. The period set out in the timetable should not be too long; it should certainly not be as long as is needed for the Home Office and the Ministry of Justice to get their act together—that would be too long. Certainly, the timetable should be specific and detailed; it might then begin to persuade people on different sides.
We had a small discussion about the timetable in a previous debate. The right hon. Member for Southampton, Itchen (Mr. Denham) was rather more optimistic than others, and he believed that as the power would be set out in the Bill, there would be an unstoppable momentum, which would ensure that what we want would come to pass. I am afraid that it is the House’s job to be rather more sceptical about unstoppable momentum. Let us remember that this Bill had its genesis before the 1997 election. It took more than 10 years to get to this stage, so I do not think that we should be confident that unstoppable momentum will be created if we just accept the power with no timetable. I have huge respect for the Minister, but on three occasions in the previous debate he said that there was no guarantee that the power would ever be used.
The right hon. and learned Gentleman is exactly right, so I will not detain the House by reading out the three quotations from the previous debate that back the point that he and the Minister have already made—that we are in the world of “if” and “whether”, not a definite, certain “when”. The Government have left themselves enough wriggle room for a nest of snakes to wriggle out of that so-called concession, and we must ask why. Let us accept for a minute that they intend to introduce the measure some time. Why the delay? The Minister said that the police and the Prison Service needed to get ready, which implies that they are not yet ready, and are in such a state that gross negligence in management is possible.
That is a shocking admission, but let us move on and be charitable. What has to happen before they are ready? Perhaps new protocols need to be written, or extra training needs to take place. Perhaps a change of culture is required. One would hope that that would already have happened after 10 years, but perhaps those are the reasons. If that is the Government’s argument, and at some stage they come up with a timetable, we must ask why that period is needed. What is going to happen between now and then, and why are those actions necessary to ensure that suddenly it is acceptable to apply the offence? Until now, the Government have not even begun to make those arguments, and have tried to swat them aside, which is why we are suspicious about the underlying motive.
There are principles at stake, as we have debated incessantly. Equality before the law, and equal protection under the law: ultimately, those are the principles that we are defending. I am afraid that the Government have not moved anywhere near enough for us to be sure that those principles will be enshrined.
I must confess that intellectually, it is hard to oppose the Lords amendments, which are entirely consistent with the position that I have taken throughout the Bill’s progress and the report of the Joint Committee. However, I take a slightly more optimistic view of the position into which the Minister has put himself. If this particular Minister had not been handling the Bill, we might be in a much worse position on this important issue of principle, because he has won the argument that he put before the House about the principle that lies behind the changes. Much as I would prefer things to appear differently in the Bill, I am optimistic that by making the changes that he proposed we will create an unstoppable momentum in the implementation of that principle.
Once the power to include deaths in custody is on the face of a piece of primary legislation, at the next inquest that declares an unlawful killing of a young person, or an older person, in custody, there will undoubtedly be an expression of regret by the coroner that Parliament and the Government have not yet brought the measure into force. Indeed, may I gently suggest to my hon. Friend that if the Government’s real aim, which is a significant one, is to allow cultural changes to take place in the management of the Prison Service that would equip it to introduce the measure—most of us accept that those changes are not in place; perhaps they should be, but they are certainly not—he might have more control over the timetable if he set one in advance? In a fairly pleasant debate, he has had a slightly uncomfortable time, but if he does not set a timetable—within months, and certainly within the next year—it will be much more uncomfortable for him to appear on the “Today” programme in the wake of a coroner’s complaint that the legislation has not been enacted, making it impossible to follow up a verdict of unlawful killing.
As soon as we have a new ombudsman with statutory powers, it is hard to imagine that any worthwhile ombudsman will not continually draw attention to the failure to commence the legislation or to introduce the principle here, when a particularly tragic case arises. If we had some sense of a timetable to which the Government were publicly committed, it might provide more protection for the management of the Prison Service and more time to adjust than we will otherwise get.
The right hon. Gentleman said that the coroner would blame Parliament and the Government for not bringing in the legislation. Clearly, Parliament will get the blame if it fails now to insist on a better set of amendments, but if the Government get their way in the future it is they who will be to blame, because only they can initiate the process.
Indeed, the Government would get the blame. They would be held responsible when there was an inquest verdict of unlawful killing, and it was impossible to act through the criminal courts on the basis of the Bill because the principle that has now been conceded had not been enacted. For those reasons, I believe that what the Government have conceded is a very real gain for the House, and for the process of scrutiny that we have undertaken.
Like my hon. Friend the Member for Hendon (Mr. Dismore), I think that an indicative timetable would be useful—and might even be sensible from the Minister’s point of view, although I recognise that he is acting today within the constraints that he has been able to achieve so far. I shall support my hon. Friend in the Lobby because I believe that he has in effect created, in a somewhat messy way, the result that most of us have sought to achieve. I support him for the immense efforts that he has made to achieve that result.
It is a pleasure to follow the right hon. Member for Southampton, Itchen (Mr. Denham). He made a sound point—that in the event of a very serious death in custody occurring, the Government will be severely blamed if they have not implemented the provisions of the enacting clause. I want, however, to make a slightly different point—indeed, two or three points, but I shall be brief, as I know that my right hon. Friend the Member for Wokingham (Mr. Redwood) wishes to speak as well.
It would be churlish not to acknowledge that the Government have made a concession, but it is not a concession which, in my view, goes nearly far enough, nor is it a complete concession on the matters of principle, although it makes some concession on principle. We must begin with the proposition that those in custody are a particularly vulnerable group. I speak as somebody who has served as a special constable, as Under-Secretary of State with responsibility for the Prison Service, as Under-Secretary of State with responsibility for the police service, and as somebody practising the criminal law now.
I know that power is abused. I know, too, that on occasion prison officers and police officers use excessive force, and that injury and death follow that use of excessive force. It is wholly wrong in principle that the public sector should be protected from the kinds of liability that we impose upon the private sector. I make the point again that those in custody are a particularly vulnerable group, and most people tend to avert their eyes from what happens in prisons and police cells. They should not.
Let us deal with the concession. First, there is no certainty that the Government will implement the power that they have given themselves. The Minister used the word “if” on this occasion, and he was good enough to confirm that if means if, not necessarily when, so there is no certainty that the power will be implemented. Secondly, one is entitled to ask in respect of what institutions the power will be implemented, if it is implemented. The House will have noticed from proposed new subsection (5A)(a) that it is a power in respect of
“any specified form of custody or detention”.
In their amendments the Lords specified the institutions to be treated as institutions of custody. The Government have given themselves a power to limit the institutions to which the Lords amendments apply. That is an extremely limiting power, which could constrain their concession to a very high degree.
I have already made the point, with regard to new subsection (5B), that the Government have given themselves the power to specify exceptions to the liability imposed by the Bill, so not only are they not committed to implementing the power at all, but they are not committed to implementing it in respect of the classes of institution to which the Lords want it to apply. Furthermore, they can limit the degree of liability by invoking subsection (5B). In practice, therefore, the compromise is very limited. It is no concession at all, unless the Government want to make it a concession.
If the Government introduce the statutory instrument, let us be under no illusion that we will have any part to play. We will not be able to say that the classes of custody to which the liability attaches should be extended, or that the restrictions on liability are unreasonable and unfair. It is true that the affirmative procedure will be used, but we should always remember that affirmative resolutions are not amendable. The concession is therefore pretty poor. My strong advice to the House is to stand firm and express the hope that the other place will stand by its principles and stick by its amendments.
I support the comments of my hon. Friend the Member for Beaconsfield (Mr. Grieve) and my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg).
The House needs to remind itself of the magnitude of the problem. In the last three years of the Conservative Government—1995 to 1997—there were 116, 122 and 122 deaths in custody in England and Wales. In the most recent three years under this Government for which we have figures—the years up to and including 2005—there were 183, 206 and 174 deaths in custody, which amounts to an increase of more than 50 per cent. That should be of considerable concern to all Members of the House, and particularly to the Ministers responsible for the system. That is why many Opposition Members are reluctant for this area to be excluded so dramatically and prominently when the Bill takes steps to make other parts of the public sector, at least in part, more responsible.
Will the right hon. Gentleman confirm, however, that none of us has ever suggested that the great majority of deaths in custody would be subject to corporate manslaughter legislation? Only that small number of cases in which gross negligence has occurred at a managerial level would be caught.
Of course, when I say that those cases could be covered by the legislation, that would be with a view to investigating whether the—properly stringent—tests in the legislation were met. One hopes that that would be so in no case, or in very few cases, because this is a serious matter. In an intervention on the Minister, I said that I feared that the 5,890 deaths in 2005 from MRSA and C. difficile in hospitals would be excluded, and he seemed to agree. There is some legal feeling, however, that all those might be able to be investigated. Again, one hopes that none, or very few, would result in that kind of prosecution.
I am grateful for that clarification and reassurance. Deaths in custody are therefore among the biggest groups of deaths happening anywhere in the country, under any organisation, for which one would hope that that facility in the legislation would be available, if, in extreme cases, it were found that a case could be brought though the court system. It behoves the Government to lead by example in such sensitive territory, and to show that they, their staff and agents have nothing to hide by making sure that they and the private sector are covered in a similar way.
In an intervention, the Minister also kindly confirmed that, as the supporting documentation to the Bill states, the Government think that there would be only 10 to 13 cases a year. I asked specifically about the private sector, and he seemed to confirm that all those cases were thought to be in the private sector. Therefore, he clearly believes that of all those other cases that could potentially be examined in the public sector, none would produce a prosecution. That might be a convenient fiction for a Government Minister, for obvious reasons, but one would assume that a few more cases might arise if the whole public sector were included in a fair and level playing field with the private sector. My view of the figure work in the supporting documentation is therefore a little at variance with the Minister’s.
Like many Members of the House, I hope that not many cases would result in such serious prosecutions, but the fact that the facility was available would certainly help to concentrate the minds of the public sector agents involved, as surely as the intention of the House is to concentrate the minds of the private sector agents involved, because we take death by gross negligence very seriously, for obvious reasons.
I hope that the Minister will think again. I agree with what my right hon. and hon. Friends said about the need, if this is indeed a proper concession, for a clear timetable. I, too, would be grateful if the Minister would confirm that the Government are not intending to use the facilities in clause 5 to dilute this measure should they eventually get round to implementing it for deaths in custody. There are too many deaths in custody, and this is just one way among many in which we might be able to improve things a little.
I am grateful to hon. Members on both sides of the House for their well-held views on this issue. The Bill has been a long time in coming. I am grateful for Opposition Members’ kind remarks about its progress, although I do not know what that will do for ministerial careers.
Hon. Members will recognise that the Government have listened all the way through the Bill’s passage. We have accepted many of the proposals that were put to us in Committee. We have tried to improve the Bill and make it user friendly in terms of the matters that have been put to us. However, there comes a time when there must be a difference of opinion. I believe that the move that the Government have made in accepting the principle that deaths in custody should be in the Bill is a significant step, but hon. Members do not think that it goes far enough. We would not have gone down that route if we intended that the power should never be exercised. However, we are not prepared to set a timetable for that occurrence, because of the significant measures that we have put in place in relation to the two other elements of the compromise.
The right hon. Member for Wokingham (Mr. Redwood) asked whether this would relate only to the private sector. No, it would not. The figures are across the board and apply to both the public and the private sector.
On the point raised by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), the power to specify exemptions when extending the provisions to custody is not new, as it existed in the previous amendment. We are trying to add a power to disapply exemptions, such as those relating to exclusively public functions. That is necessary to give proper effect to extending clause 2 to custodial duties. We thought that we were improving the situation, but if we have not done so we will need to take another look. This is not about watering down or adding exemptions.
I am happy to look at that again. It is certainly not our intention to limit or to water down. We had a good debate in Committee about the exemptions that we wanted to apply.
It is important that the concessions bed down, and that we are in a position to monitor them as they take effect. Death in custody is a very serious issue, and I do not want to move away from that. I pay tribute to the work that the Prison Service is doing in trying to avoid deaths in custody. The various stakeholders who are involved in the forum take such matters seriously. Clearly, it is distressing for all concerned that deaths in custody take place.
On the timetable for the prisons and probation ombudsman, we cannot pre-empt the Queen’s Speech, but those powers will certainly be included in the next available legislation.
This issue is not to do with the Home Secretary or the Lord Chancellor. The Government’s position is that we have listened and brought the concession forward, and that the concession is enough at this stage. Hon. Members should look at this in the round. We are as resolute as the other House in terms of where we are now. We are in a difficult position as regards the remaining time scale for the Bill. I hope that the other House and this House recognise that the Government have come a long way, and that they will support us in our endeavour. I do not want to return to this time and again. I hope that we can find a way forward and that people will accept that compromise has been reached. I support the amendments in the Government’s name.
Question put, That this House insists on its disagreement with the Lords in their amendments Nos. 2, 3, 5, 6 and 10, does not insist on its amendment 10A in lieu thereof, and proposes amendments (a) and (b) in lieu of the Lords amendments.
The House proceeded to a Division.
Government amendments in lieu of the Lords amendments agreed to.