Skip to main content

Corporate Manslaughter and Corporate Homicide Bill

Volume 692: debated on Tuesday 22 May 2007

My Lords, I beg to move that the Commons amendment be now considered.

Moved accordingly, and, on Question, Motion agreed to.

[The page and line references are to HL Bill 19 as first printed for the Lords.]

Motion A

2: Clause 2, page 2, line 29, at end insert-

“(d) a duty owed to anyone held in custody.”

3: Page 3, line 12, at end insert-

““custody” includes being held in prison, secure mental healthcare facilities, secure children’s homes, secure training centres, immigration removal centres, court cells and police cells, and being subject to supervision by court, prisoner and detainee escort services;”

5: Clause 3, page 3, line 37, leave out “or (b)” and insert “, (b) or (d)”

6: Page 3, line 40, leave out “or (b)” and insert “, (b) or (d)”

10: Clause 5, page 5, line 8, leave out “or (b)” and insert “, (b) or (d)”

The Commons disagree to Lords Amendments Nos. 2, 3, 5, 6 and 10 but propose Amendment No. 10A in lieu—

10A: The Commons disagree to Lords Amendments Nos. 2, 3, 5, 6 and 10 but propose Amendment 10A in lieu- Page 2, line 43, at end insert-

“(5A) The Secretary of State may by order make amendments to this section to the effect that a duty of care owed by an organisation under the law of negligence to a person who-

(a) is in any specified form of custody or detention, or is otherwise on premises of a specified description or on premises in specified circumstances, and(b) is by reason of that fact a person for whose safety the organisation is responsible,is a “relevant duty of care”.

(5B) An order under subsection (5A)-

(a) may amend this Act so as to specify exceptions with respect to the application of any provision contained in this section as a result of such an order;(b) may make any amendment to this Act that is incidental or supplemental to, or consequential on, an amendment made by such an order.(5C) An order under subsection (5A) is subject to affirmative resolution procedure.”

My Lords, I beg to move Motion A, That the House do not insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do agree with the Commons in their Amendment No. 10A in lieu.

I am delighted to join the debates on this Bill. I am particularly pleased to stand here today as a Minister from the new Ministry of Justice. I pay tribute to my noble friends Lady Scotland and Lord Bassam and to my noble and learned friend the Attorney-General for their work in bringing this Bill to the point that it has reached today.

The Ministry of Justice marks a new departure and provides an opportunity for the whole justice system to work together better than even before. I am determined that we make the most of that opportunity. I am also pleased to be participating in debates on this particular Bill, as it reaches its conclusion. This important Bill has been a long time in the coming. It has received support from noble Lords from all sides of this House and in the other place, and discussion has been probing and constructive. Discussion of the Bill now draws to a close and one issue remains outstanding between this House and the other place: whether the offence should extend to custody. That issue returns to us for consideration again, with an opportunity to complete this Bill’s parliamentary passage. I am grateful to the noble Lords, Lord Lee, Lord Hunt of Wirral and Lord Dholakia, the noble Baroness, Lady Stern, and the noble Lord, Lord Ramsbotham, for the time that they have given me to discuss informally the provisions in this amendment.

We have listened carefully to the debate on this and strived to find a constructive way forward. In the other place, my honourable friend Mr Gerry Sutcliffe set out three proposals aimed at addressing the concerns here. At the heart of these lies the amendment proposed by the other place: a power to extend the Bill to custody. This is offered in lieu of the preference of your Lordships’ House, which was to extend the new offence to custody from the outset. The order-making power does not shy away from its purpose. It is explicit and refers directly to extending the offence to custody and detention. It therefore puts the principle of extending the offence to custody clearly in the Bill. Noble Lords will want me to address why we set store in this being an order-making power rather than a straight extension of the offence.

Noble Lords who have followed this Bill closely will know that lifting Crown immunity in this Bill represents a very significant step, but it also brings with it substantial uncertainties about the consequences of making government departments liable to criminal prosecution for the first time. It is right that the new offence should apply to matters such as employee and workplace safety. Those matters, by and large, will not involve significant questions of public policy.

However, the distinction between operational matters and policy becomes more blurred when the issue is one of how a public body discharges its statutory or public responsibilities. It is not enough to say that these are matters of management and not policy. Faults may well lie in management but disentangling those faults from the wider policy context in which they arose can be difficult. We do not believe that the offence should become a vehicle for seeking to examine policy decisions for which Parliament holds the Government to account.

Noble Lords will also understand that the Ministry of Justice has itself only recently been established. We need to discuss carefully with those who would be affected by the extension of the offence, such as the Prison Service and police forces, what the implications would be and how implementation can be managed sensibly. Until we have had a chance to consider how the legislation has bedded down across the public sector more widely, it would not be wise to look to extend it to the way particular public functions, such as managing custody, are carried out.

However, I am very clear that the proposal to include an order-making power in the Bill is done in good faith. It is done because we believe that it is right that the offence ought to be capable of applying to custody. We would not have done that if it was our intention never to exercise the power. The power therefore clearly opens the door to the offence applying to custody—a very significant step in itself—and we would not have done that if we were not prepared to take that further step ourselves.

In the mean time there will be an opportunity to put the ombudsman on a statutory footing, strengthen the arrangements for the Forum for Preventing Deaths in Custody, and allow those changes to bed in. A statutory footing for the ombudsman will change significantly the basis on which investigations into deaths in custody are conducted, and there is some sense in allowing those changes to become established before seeking to make further changes.

I shall set out in a little more detail the changes I have just mentioned. The ombudsman, Stephen Shaw, has investigated all deaths in prisons, young offender institutions and immigration detention centres since 2004 and, since last year, those in secure training centres. Through this and his wider work investigating complaints, he and his office have developed detailed knowledge of the management of custody. Putting his office on a statutory footing will strengthen the investigation of deaths in custody in three ways. First, there will be a formal duty on the ombudsman to examine all deaths within his remit. He will also decide the scope of investigations and the procedures to be adopted. His remit would extend to the treatment of and conditions for prisoners. As now, we would expect investigations and recommendations to cover management and wider policy issues where he deems it appropriate. Secondly, there will be new High Court powers to obtain evidence, as well as a clear foundation for working with other ombudsmen where appropriate. Thirdly, while the ombudsman is already independent of the organisations he investigates, a statutory basis would strengthen his independence from government.

Noble Lords will want to know when we intend to bring proposals for this legislation before the House. I cannot name a particular vehicle but our intention is to find a suitable Bill in this Session or, if necessary, the next. The Government’s second proposal is to look at the further development of the Forum for Preventing Deaths in Custody. The word “review” has been used but I make clear for the benefit of the House, especially the noble Baroness, Lady Stern, who I see in her place, that the purpose here is to look at how we can strengthen the forum. I believe that the phrase the noble Baroness used to me was, “make sure that you beef it up”.

The forum brings together a wide range of organisations involved professionally in the management of custody and its inspection and scrutiny. It includes representatives from the Prison Service, Department of Health, Youth Justice Board, Association of Chief Police Officers, Inquest, the Prison and Probation Ombudsman and the prisons inspectorate. It is chaired by John Wadham, the deputy chair of the Independent Police Complaints Commission, and its membership also includes the noble Baroness, Lady Stern, as an observer.

The forum stems from the Government’s response to recommendations from the Joint Committee on Human Rights for a task force dealing with deaths in custody. It works by comparing and contrasting approaches, identifying good practice and drawing attention to issues which need to be addressed by operational bodies or Ministers.

Its terms of reference are:

“The Forum exists to learn lessons and effect change to prevent deaths in custody”.

I understand that its first annual report is being prepared. It has made a good start in meeting some of the criteria that the committee set for a task force, but we acknowledge that there is room for improvement.

For this critical area of work to be effective, a strong focus needs to remain on personally involving senior representatives from organisations that inspect, investigate and oversee custody. In the review, we will look at issues such as greater autonomy from government and improved interaction with Ministers, including the relationship with the ministerial round- table on suicide, which my honourable friend Gerry Sutcliffe chairs, its powers, resources and capacity. The noble Lady, Baroness Stern, is, I understand, already in early discussion with the forum’s chairman about a seminar to explore views. That seminar would be an integral part of the review, and we will report on progress within six months.

These two proposals are squarely aimed at some of the key concerns that have arisen in the debate on custody: that there should be strong arrangements for the independent investigation of all deaths in custody to find out exactly what happened and to make recommendations for change; and that the Government must take further steps to improve the management of custody to prevent these deaths from occurring in the first place. In addition, we propose a power to extend the offence to custody to enable us to take that further step when the time is right.

I pay tribute to the efforts of all Members of your Lordships’ House and the other place for their efforts in getting this legislation to the point that we have reached today. A single issue remains to be settled. The Government have sought to move positively on this matter and have offered a package aimed at the core issues of preventing and investigating deaths in custody, as well as opening the door to the Bill’s extension. That is a significant move, and I commend the amendment in lieu to the House as a basis on which this Bill can now be brought to a successful conclusion.

Moved, Motion A, That the House do not insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do agree with the Commons in their Amendment No. 10A in lieu.—(Baroness Ashton of Upholland.)

My Lords, I beg to move, as an amendment to Motion A, Motion A1, leave out from “House” to the end and insert “do insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do disagree with the Commons in their Amendment No. 10A in lieu”.

When this House debated these amendments on 5 February, I argued then, as I do now, that my purpose was to rectify a glaring deficiency in what was otherwise a generally welcome Bill by including,

“a duty owed to anyone held in custody”.

I emphasised that there was a stark difference between the rule of law and the Bill on the one hand and, on the other, the Government’s perverse reasoning as to why neither the rule of law nor their own Bill should be applicable to those with a duty of care to those held in custody.

I must acknowledge how far the Minister and the Government have moved since then on this issue, in good faith, and I thank her personally for the courteous, frank and open way that she has discussed and explained her case for continuing to reject my amendment. She rests her case on the three concessions that she has described, which were debated at length in the other place.

The first is the strengthening of the arrangements for the independent investigation of deaths in custody by putting the appointment of the Prisons and Probation Ombudsman on a statutory footing. I welcome that, but I remind the House that that measure has a long history that is nothing to do with this Bill. When Her Majesty’s Inspectorate of Prisons was reformed in 1981, three aspects of imprisonment were under consideration for inclusion in that role. In the event, inspection of the efficiency and propriety of the treatment and conditions of those in custody was put on a statutory footing but not the inspection of grievances.

It was not until 1994 that the first Prisons Ombudsman was appointed to do that. Since then, successive holders of the office have fought, unsuccessfully, to be put on a statutory footing similar to that of the Chief Inspector of Prisons. In addition, the Joint Committee on Human Rights made a recommendation to that effect in 2003. I acknowledge that the investigation of all deaths in prisons, young offender institutions and immigration detention centres has been added to his remit since then, but the investigation of grievances remains his principal task, requiring a statutory footing.

The second concession is to review and strengthen the role of the forum on deaths in custody, as has been fully described by the Minister. The forum’s current remit is to identify and draw ministerial attention to good practice and issues relating to changes and improvements to safety in custody that require further attention. When discussing this House’s amendments in the other place, the Minister, Mr Gerry Sutcliffe, to whom I also pay tribute for his movement on these amendments, announced that the forum would report on its review within six months. I welcome that in the context of safety in custody but, important though that is in its own right, it is not the principal subject of this Bill.

Thirdly, the Government propose to give the Secretary of State the power to amend the Bill by affirmative resolution to increase the categories of duty of care. Mr Sutcliffe said in another place:

“We have accepted the principle that the new offence may extend to custody at some time in the future”.

He also said:

“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”.

Immediately, that movement was recognised by Mr Chris Mullin, who asked:

“Will the Minister give us some idea of the timetable he has in mind? When will that day dawn?”—[Official Report, Commons, 16/5/07; cols. 667-69.]

I submit that that is and remains the crucial question. In accepting the principle underlying the new offence—namely, that everyone is equal before and entitled to equal protection under the law—the Government are accepting that its purpose and content apply to failures of management in the duty of care when it is owed by government departments and other Crown bodies. I cannot for the life of me see why, having accepted that in the context of a Bill that is subject to carryover procedures, they cannot go further and draw up a clear timetable, as they have done for the review of the forum.

Since 5 February, I and, I suspect, many other noble Lords have been put under considerable pressure by relatives and other pressure groups representing those who have died as a result of corporate negligence outside custody. This pressure includes the suggestion that, by representing the case of relatives who have died as a result of corporate negligence inside custody, we are putting the Bill at risk. I am sure that none of those who voted for these amendments wishes the Bill to be killed; we wish only that the Bill that is passed is better than the one that was originally brought before this House. Mr Dominic Grieve urged Members in the other place,

“to look to their consciences on this matter, because the House has an opportunity to do some good”.—[Official Report, Commons, 16/5/07; col. 674.]

Noble Lords will remember that, when we discussed these amendments on 5 February, the noble Lord, Lord Dholakia, and others made the point that we are not suggesting that every death in custody should automatically be followed by a charge under this Bill; we are talking only about those that involve gross breaches of management and the duty of care. Since that date, there have been at least two further cases of avoidable and gross breaches of management: the murder of Shahid Aziz in Leeds prison, in depressingly similar circumstances to the murder of Zahid Mubarek in Feltham, and the suicide of Michael Bailey in Rye Hill, which attracted scathing remarks from the coroner about management failure. The depressing continuance of avoidable deaths in circumstances for which the Government are responsible is surely a very strong reason for bringing the now accepted principles behind the Bill into effect as soon as possible. I was therefore very concerned to read a report in the Observer on 29 April, referring to our vote on 5 February, which stated:

“The defeat has prompted fury at the Home Office, which believes the peers’ plan would be unworkable, as it would place an impossible burden on the Prison Service to prevent deaths in custody”.

That fury implies that proper management is not currently being carried out by the Prison Service regarding the duty of care that it owes to all those in its custody. If that is true, I am sure that it will be of considerable concern to the Minister.

As I said on 5 February, these amendments are not about examining government policy or the allocation of resources; they are, in line with the remainder of the Bill, about good management. Improved management supervision was one of the recommendations that I made to the Government in1999 in a thematic review of the prevention of suicide in prisons, Suicide is Everyone’s Concern, conducted at the request of the then Minister, Joyce Quin—now the noble Baroness, Lady Quin—and accepted by the then Home Secretary, Mr Jack Straw. Good management does not depend on resources but, rather, on the whole ethos, structure and direction of management. That is what the Bill and the vote of this House are all about.

Moved, as an amendment to Motion A, Motion A1, leave out from “House” to the end and insert “do insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do disagree with the Commons in their Amendment No. 10A in lieu”.—(Lord Ramsbotham.)

My Lords, when we last debated this Bill in your Lordships’ House in early February, we saw the House at its best. Opposition parties rallied behind the noble Lord, Lord Ramsbotham, whose knowledge and experience on the deaths in custody issue is recognised by all sides in the Palace of Westminster and beyond, and inflicted a heavy defeat on the Government. There was virtually no support for the Government’s stance from their own Benches, and even Ministers were hard pushed to find serious, sustainable arguments to justify their position.

We had hoped that, on reflection, given the scale of the defeat, the Government would accept our amendments but, with John Reid in overall charge of the Home Office, we were not optimistic. However, the creation of the new Ministry of Justice offered fresh hope. I categorise politicians into two broad groups: warriors and healers. John Reid, as the Cabinet bull terrier, was unquestionably a warrior, while I suggest that the noble and learned Lord the Lord Chancellor and new Secretary of State at the Ministry of Justice is more of a healer. He has an avuncular presence, beautifully described, I remind the House, by the Leader of the Official Opposition in this Chamber some time ago as delivering more ho-hos than a Father Christmas in a department store.

How fitting it would have been if the first act of the new Ministry of Justice had been to grant justice to those who die in custody and bring them within the scope of this important corporate manslaughter Bill. Sadly, it was not to be. The new Ministers and their civil servants searched for a way out of their dilemma and came up with a package of modest improvements to the Bill, clearly buying off doubters on their own Benches in the other place. However, that should not have been particularly difficult, given that those Back-Benchers were obviously focused elsewhere. Half the Parliamentary Labour Party was engaged on active service north of the border fighting the SNP, while the other half was back at Westminster fighting each other for the deputy leadership of the Labour Party.

But this is a serious issue. Putting the Prisons and Probation Ombudsman on a statutory footing is to be welcomed, as, I suppose, is a strengthening of the Forum for Preventing Deaths in Custody, although few seem to have heard of this body and I can find no reference to it in earlier ministerial contributions on the Bill. The affirmative resolution merely puts off, possibly till tomorrow, what should be done today.

Having participated in debates in this House and having studied in Hansard what was said in the other place last Wednesday, I have to say that no substantial arguments have been put forward for the non-inclusion of deaths in custody in the Bill. Yes, there are hints of the police becoming risk-averse, of prison overcrowding and perhaps of problems with the Prison Officers’ Association but nothing substantial.

For the near 12 months that I have had the privilege to be a Member of this House, I have seen and heard the Minister at the Dispatch Box on many occasions. I genuinely believe that she is a sincere and caring Minister who, if it were up to her, would wish to include deaths in custody in this Bill. It is our wish too.

My Lords, I start by declaring my interest in the register as a practising solicitor. I, too, join the noble Lords, Lord Ramsbotham and Lord Lee of Trafford, in paying tribute to the Minister. She has, as the noble Lord, Lord Ramsbotham, said, been courteous, frank and open. I thank her for that and for her willingness to find a way through the problems that have arisen. I welcome her to the Dispatch Box in her ministerial role in the new Ministry.

I hope that the Minister understands that this is a hugely significant debate for many of us. Matters of constitutional importance are at stake. The first point that I want to make is that the amendments passed by this House by a substantial majority earlier this year were serious, positive and constructive. As the noble Lord, Lord Lee of Trafford, put it, it showed the House at its best. Those amendments greatly enhanced the Bill and restored balance to it. They were entirely consonant with the primary purpose of this important legislation, and in no way conflicted with or undermined it. They did not emasculate, vitiate or weaken it. Indeed, the amendments unambiguously extended the remit of the Bill to protect some of the most vulnerable people in any country—those who are incarcerated, whom the state has deprived, legitimately, of their liberty.

This is what the Minister described as the single issue, but we on all sides would stress that this single issue is a serious and profound one, because holding individuals in custody is a massive responsibility for any Government in any country in any era. Exemption from the full extent of that responsibility is unacceptable. In seeking to reject these amendments, Ministers are effectively refusing to concede that they and other agents of the state owe a full, total and transparent duty of care to those they hold in custody. They have never explained why. I would venture that they have not made the argument because there is none. There is certainly a case for arguing that, by exempting themselves in this way, the Government are running the risk of ending up in breach of Article 2 of the European Convention on Human Rights. There was an interesting if inconclusive debate on this at Report. Far more importantly, this is an argument about natural justice. Is it not now time for Ministers to accept and acknowledge that the existing systems of accountability for death in custody are regarded by many people as pretty useless?

Reference has been made to a report in the Guardian last Friday, in which an inquest jury was described by Vikram Dodd and Eric Allison as having delivered a “devastating verdict” when it criticised the Prison Service for allowing a violent white prisoner to remain in a cell with an Asian man whom he later beat and stabbed to death. That report was only last Friday. The statistics are worrying. The families in that case and in the Mubarek and Scholes cases had to endure the most difficult processes in addition to the grief of losing a loved one. Can Ministers really be arguing that bereaved people in search of justice and answers should have no easier recourse than to take the Government to the Court of Appeal just to get an inquiry? The Bill should be even-handed; there should be one rule for all. In an outstanding speech in another place, my colleague Dominic Grieve, the shadow Attorney-General, said that if this House were to prevail—and he were to take on that responsibility in government—he would accept that this was the right way forward.

Of course the suggested compromise deserves our scrutiny and careful thought, but it is unsatisfactory for a number of reasons. First, the inadequate function of the amendment itself just provides an order-making power to add deaths in custody to the public functions that the legislation will cover, but there is no guarantee that that power would ever be used. The Minister has virtually indicated that it would, but the Minister in another place stated unequivocally that there was no guarantee that the order would be used. He said:

“the development of … processes will lead us to consider whether to use the affirmative procedure”.—[Official Report, Commons, 16/5/07; col. 667.]

—that is, the affirmative procedure for bringing forward this order. To my mind, that renders this proposal, well intentioned as it may be, little more than a smokescreen.

There is, of course, another reason to be clear and unambiguous in the Bill. I know that the Minister is in rude health, but she is a member of a Government in transition. I have no wish to use the phrase “somewhat undead”, but we are now in between Governments. We have an outgoing Prime Minister and an outgoing Home Secretary. Any oral commitment, however well intentioned and sincere, will not bind anyone with a new Administration that is mere weeks away.

The noble Lord, Lord Ramsbotham, has provided a comprehensive critique of the ombudsman and forum proposals. Following that, suffice it for me to say that those proposals look flimsy, insufficient and inappropriate in the light of his analysis. They are no substitute for a full and fair extension of this legislation to protect a group of people, those held in custody, who are entirely and uniquely at the mercy and under the protection ofthe state and its agents. As the noble Lord, Lord Ramsbotham, said, this is a glaring deficiency.That is why I urge my colleagues and the House wholeheartedly to support the Motion standing in the name of the noble Lord.

My Lords, I welcome the concessions which the Minister has already set out. I join others in congratulating her on how that has happened and how those views have been put forward today. I reflect upon what I said to your Lordships’ House when this was debated at length on 5 February, and I repeat: in any developed country which believes in itself and its tradition, a litmus test of that society is how it treats prisoners held within the official places of incarceration. They are listed, and need no further comment from me; police cells are one and prisons are another, as the noble Lord, Lord Ramsbotham, has indicated.

It seems that we hold up our hands in horror time and time again at what we see taking place in banana republics, in central African republics and, on occasions, in Middle Eastern republics. We look at how prisoners are frequently treated in those places and congratulate ourselves on how we do things differently in this country. Of course, by and large, we do, and, by and large, we have something which we can be proud of in this country. If that is the case, why are we pursuing this debate today? What have we got to hide? Why raise questions in the minds of those who seek to criticise about our seeking officially to exclude ourselves from something which seems patently clear? As a civilised country, we should be prepared to offer ourselves up for examination on the way in which we conduct prisons, police cells and so forth.

The noble Lord, Lord Ramsbotham, has already commented upon prisons, and I, declaring an interest, of course wish to comment about those held in police custody. When, in February, I checked the official ACPO view, it was that it was rather surprised that there were moves to exclude the police from the Bill. Now, I understand that a letter is in circulation in which the official ACPO view is expressed, which is that it is quite happy to be excluded from the Bill and to enjoy the exclusions that apply to prisons and elsewhere. This morning, I checked with the ACPO spokesman, and he told me that, in coming to that view, ACPO found it a borderline decision, but was still happy to find itself outside the compass of the Bill. I have to tell noble Lords what I told him; that I was extremely disappointed to hear that. I would have thought that a mature service that believed in itself would have nothing to fear and nothing to hide. I do not speak with any remit—nor would I speak with a remit on behalf of ACPO—when I say that I believe that the police should be included along with prisons and the other organisations and places that we are aware of. I think that ACPO is wrong and that we in this country should be prepared to be transparent and to expose the circumstances of what happens in our prisons, our cells and elsewhere to court examination. For that reason, I support Motion A1.

My Lords, many of us on this side of the House who support the Government are concerned that we get an answer on this so that the Bill gets on to the statute book. I remind the House that the Corporate Manslaughter and Corporate Homicide Bill, which has enormous support in the trades union movement, has a much wider footprint than simply police and prisons. I shall come to them in a moment, but we ought not to lose sight of the tremendous advance that the Bill will make in the protection of millions of workers. That is a question that the noble Lord, Lord Hunt of Wirral, is professionally very seized of. We are very anxious to see the Bill get on the statute book.

When it comes to the progress made by the Government in ensuring that the police and the prisons will be covered by the legislation, the noble Lords, Lord Hunt and Lord Lee of Trafford, failed to draw attention to the quite narrow point now at issue. The noble Lord, Lord Hunt, referred to obiter dicta by Mr Gerry Sutcliffe—I think I am quoting him accurately in distinguishing the issue of whether the order would be used rather than when it would be used. I shall ask him a question in return. If it were possible to say that the issue was when the order would be used rather than whether it would be used, would that make a difference to his attitude? We cannot go on for ever playing with words, but that is a substantial point. My understanding is that there will now be progress. To make this happen in the prisons and police stations overnight, as it were, is an issue, and I am not surprised to hear the careful discussions that are taking place. For those of us on this side who are voting for the Government on the basis that this will happen, it is a question of when and not whether. The noble Lord, Lord Hunt, can give further consideration to the matter if that point worries him. I also put the same point to the Minister.

My Lords, we, from this side of the House, support the powerful case made by the noble Lord, Lord Ramsbotham. We went into the Lobby with him on the previous occasion, and we would join him again if he were to call for a Division. I have no problem with the implication of the noble Lord, Lord Lea, that the Bill is much wider than simply the two aspects—police cells and prison cells—we are talking about. If so, why exclude these two very important areas from the Bill? If the Government were to include them, the Bill could become an Act and there is no problem.

It is important to remember what the noble Lord, Lord Hunt, rightly said a little while ago; that the original amendment to bring deaths in police custody and prison custody within the ambit of the Corporate Manslaughter and Corporate Homicide Bill received very strong backing when it was before your Lordships’ House: it had a substantial majority.

Today’s debate on the Commons amendment does not help to rectify the anomaly that many noble Lords pointed out last time. I do not underestimate in any way the work of the prison ombudsman, but this matter is far too important simply to be left to investigation. We would like to ensure that no one is excluded from this legislation.

I say straight away—and a number of people have complimented the noble Baroness on her performance on other Bills—that she is a listening Minister. I hope that she will listen very carefully to the arguments advanced and that there will be a way to move forward on this issue. We cannot deny that there is a slight movement in our discussions with the Minister on the Government’s part, but it is not sufficient to allay our fears about lack of action on deaths in a custodial situation. We need to bring to task those who fail in their duty of care when persons are placed in police or prison cells.

I do not see why the Government should be worried. It would not of course mean that all or most deaths in custody would result in prosecution for corporate manslaughter, as pointed out by the noble Lord, Lord Ramsbotham. That would apply only when, exceptionally, there had been a gross breach of the relevant duty of care. In those circumstances a prosecution for corporate manslaughter should enable the courts to hold that a serious management failure had occurred resulting in an individual’s death.

I note that it is no longer the Government’s case that deaths in custody should be exempted from the scope of the Bill. I hope that is the case because I can well understand that there is a need for discussions with the Prison Service, as the Minister mentioned earlier, and the police. I do not dispute that. That is right and how it should happen.

Let me advance some of the arguments mentioned by the noble Lord, Lord Dear, about the police. I have looked at the response from ACPO, the Association of Chief Police Officers. It argues that mechanisms are already established to ensure that all such incidents are robustly and independently investigated. However, the IPCC, the Independent Police Complaints Commission, the one body with an independent oversight on policing matters said on the Government’s draft Bill for reform:

“The consultation paper suggests that the reason for not applying corporate manslaughter to public functions is that this would conflict with existing accountability mechanisms … In fact, it would complement them. All deaths following police contact have to be referred to the IPCC, and some of these will be independently investigated. If the evidence from such an investigation showed the most appropriate way forward was a corporate manslaughter prosecution, it would cause serious public concerns about the effectiveness of public accountability if this was not an option”.

The commission pointed out that at present in a case of serious systematic failure resulting in death,

“there could be a disproportionality whereby a death occurs and the only sanctions available are minor disciplinary sanctions against individual officers”.

This is wholly unsatisfactory, and the Commons amendment goes nowhere near the original amendment to rectify it.

I am aware that the Ministry of Justice is in consultation with the governors of prison establishments on this subject and requires more time to conclude that discussion. That is unacceptable. There are still grieving parents, who have no answers to the question of how many vulnerable youngsters have died. I have secured a number of debates in your Lordships’ House on deaths in custody, but I have never succeeded in getting the Home Office to set up an independent inquiry. We cannot allow this situation to continue for the next year or two. A private company running a business could be liable to a charge of corporate manslaughter, but a public service charged with the care of particularly vulnerable people behind locked doors and high walls would not. That cannot be right. Indeed, it is indefensible; because of the particularly vulnerable position of prisoners, we should take special care to protect their lives. Even more indefensibly, a private company running a prison would not be liable to prosecution for corporate manslaughter, although a private company running any other kind of business would be liable to such a charge.

Let me conclude by repeating what the House of Commons Home Affairs Select Committee and the Work and Pensions Select Committee concluded in their joint report on the Bill:

“there is no principled justification for excluding deaths in prisons or police custody from the ambit of the offence ... where deaths in prisons and police custody occur, they should be properly investigated and the relevant bodies held accountable before the courts where appropriate for an offence of corporate manslaughter”.

The Government must give way, and must do so this time by sending our concerns back to the Commons one more time so they are taken into account.

My Lords, may I ask one question? Is it not the case that the Government, on the advice of the Home Office, have deferred to representations from the Prison Officers’ Association, which is directly involved in this?

My Lords, this subject is vital, as is the Bill, and I entirely agree with the view that the Bill should become an Act as soon as possible. When this matter was debated before, certain arguments in principle were put as to why this provision for corporate manslaughter should not apply to prisons and the police. I found those arguments very difficult to follow, although they were ably presented by the Attorney-General. However, it is now clear that the Government have no confidence in them, because they have agreed that a power should be put into the Bill to extend the corporate manslaughter provisions to these agencies. Therefore, the only argument left is when this should happen, or at least whether it should happen in the form in which it is put. I humbly suggest that if there is some difficulty of timing,the proper way in which to handle this is to makethe statutory provision work but subject to a commencement order. In other words, the Bill should be passed in accordance with the amendment tabled by the noble Lord, Lord Ramsbotham, and should then be considered when various parts of it are brought into force as part of the commencement arrangements. No other argument addresses the situation better than that.

My Lords, I strongly support the argument put forward by the noble and learned Lord, Lord Mackay. On listening to the noble Lord, Lord Ramsbotham, I was very much struck by the strength of the argument that the principle has already been accepted by the Government. It may be that I am rushing in where angels fear to tread, but what is the difficulty in therefore having these provisions in accordance with the Lords’ amendments to the Bill? I strongly support Motion A1.

My Lords, I am extremely grateful to noble Lords for putting forward—with great passion and very succinctly—the arguments against what the Government seek to achieve. I understand the strength of feeling in your Lordships’ House. First, I shall tackle a couple of the specific points. In response to the noble Lord, Lord Campbell of Alloway, there has been no official contact with the Prison Officers’ Association and no submissions from it during scrutiny, which I hope deals with that point quite quickly.

The noble Lord, Lord Lee of Trafford, described my Secretary of State, the noble and learned Lord the Lord Chancellor, as a healer as opposed to a warrior. I think that he would quite like a bit of hybridity, for he can be a bit of a warrior, as the noble Lord, if he has not seen already, may see in the future. I also agree that he is a healer and he listens. It is precisely because the Ministry of Justice has listened that we have brought forward the amendments before your Lordships’ House today. That is what noble Lords would expect and I am sure that the noble and learned Lord, Lord Mackay of Clashfern, would recognise that it is important that the ministry is seen to do that and to take on board the questions that have been raised.

My noble friend Lord Lea of Crondall talked about the breadth of this Bill. It is probably worth reminding ourselves that the concern that led to the Bill and the approach to corporate liability for manslaughter came from a number of high-profile cases, with which noble Lords will be very familiar, in which many people lost their lives; namely, the Zeebrugge disaster in which the “Herald of Free Enterprise” capsised and sank, the Piper Alpha oil rig fire, the “Marchioness” tragedy, and a number of terrible incidents on the railways including Southall, Ladbroke Grove and Hatfield. However, work-related death is not confined to incidents such as these and has touched the lives of many families who have lost spouses, children or parents at work. The Bill is equally applicable to those cases.

I know that noble Lords will join me in saying to all of the families who have suffered these terrible tragedies that our hearts go out to them and that our united purpose is to get this legislation on the statute book in order to protect them. We have all received letters from individuals who feel extremely concerned about that. I take it that your Lordships share with me at least that we are trying to find a way to get this on the statute book as quickly as possible. It is in that spirit that I hope those who read our deliberations will recognise that, for I am nervous that some people who have written to us are deeply concerned that this issue which stands between us should prevent the Bill reaching the statute book. I know that there is no shred of an intention for that from any noble Lord who has spoken about the issue, which they feel passionately about. I would want all those listening to our deliberations to understand that.

Noble Lords who have dealt with the Bill all the way through its stages will know well how it is intended to operate and the new and unprecedented step that we have taken in lifting Crown immunity. As I said in my opening remarks, never before have government departments been liable to criminal prosecution, which will be the case under the Bill. The Bill also recognises the difficulties inherent in seeking to apply the criminal law to difficult issues of public policy and public responsibilities. Noble Lords discussed with my noble friends who took parts of the Bill through the issues around the Army, the police and the emergency services. The Bill offered to your Lordships’ House strikes the right balance.

As ever—the noble Lord, Lord Hunt of Wirral, talked about this—the Bill has been improved in this House. Noble Lords made amendments that extend the range of organisation covered by the new offence, so it applies to certain unincorporated bodies, such as partnerships, trade unions and employers’ association where these are employers. Amendments were made to strengthen the range of sanctions available to include a new publicity order, which will allow the courts to require an organisation to publicise details of its conviction, which could have a salutary effect on large organisations where corporate reputation is extremely important. There is much that is good in the Bill, but the issue of custody has divided the House and is one of the few areas on which we have not been able to reach a consensus.

The noble and learned Lord, Lord Mackay of Clashfern, said that we could bring in the Bill and simply not commence the provisions that would apply to this. I prefer the route we have taken, which is to be clear about the issues we want to address, to look at the implications in terms of operation and policy, and to bring it forward for formal debate in your Lordships’ House by affirmative order to demonstrate precisely what we have done, and of course enable noble Lords to debate it effectively. For me, that is a better way forward. However, the noble Lord, Lord Lee of Trafford, said that he thought that perhaps I wanted to do this now. It would be a lot easier for me if I did, but it is my job as a government Minister to listen carefully to representations. Although I do not have policy responsibility, noble Lords know that I listen both to colleagues and to those interested in and concerned about legislation. Part of being responsible in government is to make sure that when you say you will do something, you have thought through all the implications and worked through the potential problems. In this area I believe that there are issues we need to address with those working in the services, and as a new ministry, we need to address them too.

For all these reasons, I believe that our course is responsible and right. I take nothing away from the strength of feeling expressed by noble Lords and the principle lying behind what is sought here, but we believe that the way we have provided for this in the Bill demonstrates that we have listened, we have moved our position, and in good faith present the provision now before noble Lords. I hope that they will take on board what the Government are seeking to do and allow the Bill, which has so many good provisions in it, on to the statute book in order to help protect many people in the future.

My Lords, I am sure that I can speak for all noble Lords in thanking the Minister for the clarity with which she has explained her position, but she will not be surprised to hear me say that I do not think that the Government have gone far enough. The noble and learned Lord, Lord Mackay of Clashfern, put it clearly by saying that the one word missing from all that has been said is “when”. My noble friend Lord Dear, whom I listened to with considerable care, also put his finger on one of my reasons for not being entirely satisfied when he said, “I think that this will happen”. When the noble Baroness reflects on what has been said in this serious and well conducted debate, reflecting as ever the gravity with which this House treats such issues, she will also reflect on the spirit and experience behind those who have spoken and where they come from. It is extremely important that this Bill, which is nearly there except for the question of “when”, should go back to those responsible for trying to produce an answer. As the Minister explained, I realise that certain very senior political arms have been pushed nearly as far up their backs as it is possible to go, but from military experience I know that they can always go just a little further. I therefore wish to test the opinion of the House.