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

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

rose to move, That this House do not insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do agree with the Commons in their Amendments Nos. 10C and 10D in lieu thereof.

The noble Baroness said: My Lords, we are now called upon to consider the Corporate Manslaughter and Corporate Homicide Bill for a third time and amendments to extend the new offence to deaths in custody in all circumstances. I again express my gratitude to noble Lords who have taken the time and care to spend some time with me to discuss the issues that remain of concern in your Lordships’ House. I am extremely grateful to all those who have done so and I hope that they will agree that I have reflected on their concerns with great care.

The other place has sent to us again an amendment tabled by the Government that proposes instead a power to extend the new offence to deaths in custody in due course. The difference between the two proposals represents the nub of the issue for this House: whether the Bill should be amended now, at this stage, or whether this is an issue for the future. The Government have come a considerable distance on the issue. The draft Bill and the consultation paper in 2005, as noble Lords who have been involved in the Bill from the beginning will be aware, proposed taking the significant step of applying the new offence to Crown bodies. But, in doing so, they pointed out that this step raised questions about the circumstances in which public authorities should be held to account under the criminal law for decisions of public policy or matters that are uniquely the responsibility of the state, such as holding prisoners in custody.

We have also rehearsed and discussed the other forms of accountability for functions of this kind. These recognise the special responsibility of the state in these cases but also the need to treat them in a manner suiting their importance, their sensitivity and their connection with public policy—hence the role of Parliament, other public forums and specific independent investigatory bodies. The draft Bill made it clear that those were matters where the offence should not apply. That is a position that the other place has supported, and so has this House, with the exception of custody. The Bill accordingly exempts death connected with the exercise of a number of public responsibilities. The Government believed, and believe, that it is appropriate for the management of prisoners in custody also to fall on that side of the line.

rose to move, as an amendment to the Motion, 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 Amendments Nos. 10C and 10D in lieu”.

The noble Lord said: My Lords, when we last debated these amendments, on 22 May, I argued, as I had done at Third Reading on 28 February, that my purpose in tabling them was to rectify a glaring deficiency in what was otherwise a generally welcome Bill by including a duty owed to anyone held in custody. As the Minister has told the House—and I am enormously grateful to her for the care that she has shown in explaining what has happened since we last debated this—the amendments were then debated again in another place and had been returned to us in the form of two new amendments, Amendments Nos. 10C and 10D, which starts the whole ping-pong process over again. I make that point now because I am aware that some noble Lords are understandably—but, on this occasion, unnecessarily—cautious that in proposing them again I am entering into dangerous constitutional waters. In taking this opportunity to propose them, I do not intend to repeat all that I have said on previous occasions, including my concern that public policy, exposure and expense should still be used as reasons when we are talking about management and the duty of care. Instead, I intend to rely on the words used by the Minister, Mr Gerry Sutcliffe, and other members of the other place during their most recent debate to make my case for me.

In separate interventions, the Minister said that deaths in custody were a “crucial” issue, a “key” issue, a “serious” issue and that the Government took them seriously. He said that the Government’s feeling was that the “existing routes” for examination of deaths in custody, including through the coroners’ courts or the Prisons and Probation Ombudsman, were,

“sufficient to deal with the issues and to address … prevention”.

I find this statement interesting, to say the least. It confirms what I suggested to your Lordships on 22 May—that the concessions that the Government announced that they had made, following our first vote, were cosmetic and had nothing to do with the purpose of the Bill.

The Minister went on to say, as the noble Baroness has also done, that the Government now accepted the order-making power in the Bill and recognised that it was right in principle for the offence of corporate manslaughter to go,

“wider than the traditional remit of health and safety issues and encompass the management of custody”.

He explained that the Government were very clear that there was no reason why, as employers and occupiers, government departments and public authorities should not also be open to prosecution for the new offence. He said:

“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”.—[Official Report, Commons, 5/6/07; cols. 146-49.]

If the Minister had come to your Lordships’ House and used that logic to argue why the duty owed to anyone held in custody should be included in the Bill, he would not have needed to test its opinion, because few would have disagreed with him. Furthermore, by including those who are in effect their victims—the bereaved relatives of those who die while in their custody because of gross bad management or failure in the duty of care—the Government would be true to their frequently announced intention to rebalance the criminal justice system in favour of victims.

If the Minister had done that, he could have quoted support from Mr John Denham, chair of the Home Affairs Select Committee in the other place, who said that his committee, the Work and Pensions Committee and the Joint Committee on Human Rights had explicitly made recommendations on the issue and saw no reason in principle why custody should be excluded from the Bill. Mr Denham went on to say that, intellectually, it was hard to oppose the Lords amendments, which were entirely consistent with the line that he had taken throughout the Bill’s progress.

So what is the sticking point? Why are we arguing that the Government should seize an opportunity that they have created to enable them to better manage a duty of care for which they are responsible and accountable? Once again, it is a question of when and not if—a question that is not answered by the use of the word “may” in Amendment No. 10D. Here again, I must pay tribute to the noble Baroness, Lady Ashton, who has met once more the noble Lords, Lord Hunt of Wirral, Lord Dholakia and Lord Lee of Trafford, and me to listen to our case, which is based on arguments used by her colleague, Mr Sutcliffe. Our case is very simple: now that the Government have agreed to the concept in detail, all that remains to ensure the passage of the Bill is that they should name a date for custody to be included on its face.

We realise that the Minister is limited in how much she can agree with us because she is in effect only the messenger for the Home Secretary and the Prime Minister, neither of whom will be in office in two days’ time. But because of the reputation that she enjoys in this House for always being at pains to listen and to respond to arguments, we are confident that she will present our case to and impress it on her political masters. I am at a loss to understand why the Government continue to refuse to name a day after which those of their employees whose management or duty of care results in the unnecessary death of someone whose health and safety—not to say right to life—is their responsibility should be liable to prosecution under a Bill that they themselves have designed to allow that course of action to be taken.

What is more, each time we have discussed these amendments, we have done so under the shadow of further incidents that qualify for consideration. On 5 February, I listed a number of cases, such as the murder of Christopher Edwards and Zahid Mubarek and the deaths of Sarah Campbell and Paul Day. On 22 May, I had to add the names of Shahid Aziz, murdered in Leeds in depressingly similar circumstances to Zahid Mubarek, and the suicide of Michael Bailey in Rye Hill, both of which had come in for detailed criticism by the coroner. Today, I have to add the attention drawn recently to the appalling circumstances leading to the suicide of 14 year-old Adam Rickwood in Hassockfield, and this week the coroner will give his verdict on the death of 16 year-old Gareth Myatt under restraint at Rainsbrook secure training centre.

How can any responsible Government continue to prevaricate over the obvious and pressing need, reinforced weekly if not daily by yet more examples, to take advantage of the means that they have created to take action against those whose gross bad management leads to unnecessary deaths for which they are ultimately responsible?

My Lords, today’s debate is about unfinished business and the stubbornness of government. As the noble Lord, Lord Ramsbotham, just said, we want this Bill. All that remains in dispute is a definite date for implementation of deaths in custody, the Government having accepted the principle of it.

Throughout the course of this Bill there has been virtually no support from the Government’s own Benches in either House for the exclusion of deaths in custody. Indeed, many prominent Labour politicians have urged the Government to go firm on an implementation date. In the other place on 5 June, Chris Mullin said:

“There are those of us on the Labour Benches, too, who think that some hint of a timetable needs to be offered”.

John Denham said:

“I think that an indicative timetable would be useful—and might even be sensible from the Minister’s point of view”.

Andrew Dismore said:

“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 … If we could work to a target date … 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?”.—[Official Report, Commons, 5/6/07; cols. 149-58.]

Those are the words of three prominent Labour Members of Parliament. Indeed, I suspect that, had she got her private way, the Minister would probably have wished to be associated with them. However, we have all had experience of defending unpopular positions from the Dispatch Box.

With the obvious pressure from the Government’s own side, support from Liberty and Justice, and two heavy defeats in your Lordships' House, one would have thought that the department would have reflected long and hard and treated the issue as a major concern. But the Lord Chancellor and Ministry of Justice officials were apparently focused on weightier matters. Last Friday’s Times carried the headline:

“Lord Chancellor’s men ‘morris dance while Rome burns’”.

A submission from one of the Lord Chancellor’s private secretaries, dated 7 June—two days after the corporate manslaughter debate in the other place—requested permission for the departmental team of morris dancers to name themselves the Lord Chancellor’s Men. The private secretary, himself a member of the dancers, tells the Lord Chancellor that they dance in the Cotswolds tradition and in the Bampton style, which involves the use of handkerchiefs and sticks. Clearly the private secretary had done his homework as the submission went on:

“As far as we can tell, no such request has been received by a previous Lord Chancellor”,

and added,

“Morris dancing is currently one of the Icons of England on the Department of Culture, Media and Sport site, alongside a cup of tea, a stiff upper lip and a bowler hat”.

With such submissions clearly dominating the Lord Chancellor’s Red Box, we can understand why little further progress has been made on the deaths in custody issue. But tonight we are debating a very serious issue. The Government’s reluctance is due, apparently, to the situation in prisons, particularly overcrowding, and their tender relationship with governors and the Prison Officers Association. But our contention is that the overcrowding issue is not a reason for non-inclusion of deaths in custody. Indeed, we believe that that very overcrowding is precisely the reason why they should be included in this Bill now.

Tonight the Government face a third heavy defeat. Let us hope that they use the opportunity of a new Prime Minister and new Administration to see sense and put this Bill on the statute book as soon as possible, which we all want, and to include within it deaths in custody.

My Lords, I certainly share the view that we cannot afford to kill the Bill, and think that we have more or less got as far as we are going to. Let me summarise where we are and its logic. I ask my noble friend not to contradict my interpretation; she might prefer to nod silently.

My noble friend has spoken on the need to engage the Prison Service. Side by side with the acceptance by Ministers in both Houses of the principle of the Bill covering prisons and police stations is that it is a matter of “when” rather than “whether”, to quote the noble Lord. We are talking about the timescale within which discussions can come to some fruition with the prison authorities and the police service. As the Minister has explained, on this territory it is not possible to accept the suggestion made in this place last time by the noble and learned Lord, Lord Mackay of Clashfern, because one cannot put a timescale on these indispensable discussions with the two services. One picks up the point already made that this is at a time of unprecedented stress in both services.

I shall hazard a scenario about the timescales for these discussions. Will they take 20 years? I do not think so. Will they take 10 years? I should not think that that is what is meant. Will they take five years? Surely not—that is longer than the lifetime of a Parliament. I assume that we are talking about a maximum of three to four years, if one leans over backwards to be reasonable about it. I know that my noble friend cannot change her brief one millimetre on this, but the interpretation that is reasonable for a reasonable person to put on where we are is that she does not need to say anything along the lines of how many years. We should be able to accept the logic of the situation.

We can settle the matter. The solution is for us to rest on the inference that that sort of timetable is not outside the bounds of the thinking going on in government, as I am sure that my noble friend can accept. Therefore, again, the commencement of the discussions cannot be in five, 10 or 15 years, but must be this year, alongside the other major management discussions going on with the two services. In so far as my noble friend says that they are inextricably connected, they should be on the agenda for the discussions already taking place.

I shall labour the point. I am not asking my noble friend to accept what I have said. I am only saying that we have got as far as we can today. People ought to think about that, accept that this is an important Bill and accept that the Government have gone some distance. As my noble friend will confirm, I have been in some of the discussions, and we ought to be able to live with the understanding that has been arrived at.

My Lords, I confess to being in some confusion. The noble Lord, Lord Ramsbotham, said that we had until the end of the Session for the Bill. I see the noble Baroness shaking her head. Will she enlighten us on why we have only some shorter time, and on what it is?

My Lords, with the leave of the House, I shall do so. The rules on carry-over are set by the other place and require proceedings on the Bill to be completed within 12 months of introduction. The Bill was introduced on 20 July last year, which gives the Bill until 19 July this year.

My Lords, I am most grateful to the Minister. That at least enlightens us. None the less, I must confess that I am wholeheartedly in favour of this amendment.

When the Bill came to this House, it did not include any protection for those in custody and the House amended that and made a fundamental change. I can see that the Government might have rejected that change, although they would have been wrong. It is extraordinary that someone should owe a duty of care and be prosecuted for manslaughter if they injure an employee, who, if he thinks working conditions are dangerous, can always leave, whereas it is not owed to a prisoner, who does not have that same option of leaving if he does not like conditions. None the less, that would have been a distinction on principle on which, perhaps, one might have said that the House of Commons was wrong but that it should have its way.

The Government have accepted that they must owe a duty of care to those in their custody and that it will be right in due course that those people shall come within the provisions of the Bill and that their death through gross neglect shall be the subject of the Bill and constitute manslaughter. But they say that while that position constitutes virtue, “Oh Lord, please don’t make us virtuous yet”. Frankly, that will not do. It might have done for St Augustine, but it will not do now.

The Minister gave us no explanation of any logical force as to why waiting will help. If there were specific exceptions that the Government wished to make to the duty of care to those in custody, they could have brought them forward by amendment. However, they have not proposed that the measure should not apply in certain circumstances or that the Prison Service must be judged only by the standards of what you can reasonably expect people to do who are coping with very difficult prisoners, which is the situation anyhow. They have not made any such proposal but merely said, “We might do this some time”—and the noble Lord, Lord Lea of Crondall, made it clear that that time might be any time or never. He seems in his wisdom to think that it will not be much more than three or four years, but we do not really know why he thinks that.

Perhaps more importantly, if the Government come forward with a provision to extend the duty of care to those in custody, they can do so by a statutory instrument that makes any form of exception or conditional provision and largely nullifies the duty. Because of the limitation on our powers over statutory instruments, we shall not be able to do anything about that. We can throw out the statutory instruments and leave prisoners wholly unprotected or grin and bear a statutory instrument that gives them only 10 per cent protection. If the Government get their way they will merely have pulled down a curtain, which they and only they can draw ever so slightly, subject to such limitations as they want, as and when they want. We will be powerless to do anything to bring these provisions into effect or make them more effective when brought in because the sole initiative will be with the Government. That just will not do.

My Lords, there is little need to add to what was an outstanding speech from the noble Lord, Lord Ramsbotham, who comprehensively covered the full range of what I would want to say, so I just say from these Benches that I completely agree with him.

However, it is important for me to add just three things. First, the vote today in no way kills the Bill. The noble Lord, Lord Ramsbotham, has already made that clear, as has the noble Lord, Lord Lea. There is still time. The Minister sought to rely on the wording of the carry-over Motion but, as we all know from the Companion, it is perfectly possible for a further Motion to be proposed. If the Government require more time, then of course they must have that time, but in no circumstances should any noble Lord feel that what is happening today is decisive for the future of the Bill.

My second point is that the Government are moving—I pay tribute to the Minister for the way in which she has approached discussion on the subject. I sense that many on the Government Benches feel that it is wrong for us to exclude deaths in custody. All we are seeking is something more than ministerial assurances, because we have no guarantee that the Ministers who are saying that, in principle, they accept the points made will still be in office after Thursday. I am not one of those who has sent in their CVs; I do not know who will be the Ministers on Thursday—we wait to see—but there will be a new set of Ministers and there may well be a new set at the Ministry of Justice.

So the words that we have heard mean nothing at present unless we have something in the Bill. I say to the noble Lord, Lord Lea of Crondall, that my noble and learned friend Lord Mackay of Clashfern pointed out that under Clause 21, the provisions of the Act,

“come into force on such day as the Secretary of State may appoint by order”.

Provided that the Minister accepts that we can include deaths in custody in the Bill, the Government have, as the noble Lord, Lord Lea, pointed out, the power to decide when the provisions are brought into effect. We ought to have a discussion about the timing that the Prison Service is given to comply with the provisions.

Many on the government side—I pay tribute to them—feel that the Bill is inadequate without being extended in the way that the noble Lord suggested. I have had many discussions with them; they feel uncomfortable and we give them the opportunity today to settle this matter once and for all. I want the Bill on the statute book. I have the privilege of being president of the All-Party Group on Occupational Health and Safety. We have been pressing for a Bill such as this for years and members of the group will be delighted that we are now very close. It just requires the Government to include in the Bill that deaths in custody will apply on a date to be decided by the Government.

I say this in a tribute to the noble and learned Lord, Lord Goldsmith, who said last week:

“Where a serious crime is committed, even by a public body, it is right to mark that and bring some degree of accountability. It is also right to impose a penalty to deter not just that body but others from committing similar offences in the future”.—[Official Report, 20/6/07; col. 215.]

I agree.

My Lords, I come to this debate not just in the context of membership of your Lordships’ House, but as a long campaigner in another life as leader of my union. It could be said that I was there at the birth of the campaign regarding protection in respect of corporate responsibility, hence the Corporate Manslaughter and Corporate Homicide Bill.

As I have listened to the debate, I know that there are two groups of people who will be watching, waiting and listening to your Lordships’ final word on the matter: the relatives of those who have died through the negligence of employers; and the relatives and friends of those who have died in custody. I have seen the anguish on the faces of both groups. I have visited areas of our community where death in custody has imprinted itself on wide areas of the community.

The noble Lord, Lord Ramsbotham, has given your Lordships in this and previous debates a long list of those who have died in custody. I could add names that have not been mentioned, such as Joy Gardener and Roger Sylvester, and there are others.

The Bill is not about punishment; it is about change in responsibility and behaviour. If the Bill carries equal force to change employers’ behaviour, clearly it must also be right that the Bill acts as a stimulus to change the behaviour of those who speak and act in our name—those responsible for the people in their custody. It would be difficult to be face to face with the relatives of the two groups of people and feel that we have treated one group more favourably than the other. Negligence is negligence, wherever it applies. Justice and responsibility go to both. If the Government maintain their position, they will be undermining the Bill’s importance, and how they want it to apply. Therefore, it is with a heavy heart but a very clear head that I will not be joining my party in the Lobby tonight if the House divides on the amendment.

My Lords, in rising to support the amendment tabled by the noble Lord, Lord Ramsbotham, I recognise that I shall repeat what I have said to your Lordships twice before—on Second Reading and in Committee. I was brief then and I intend to be just as brief this evening, if I may.

I remind noble Lords that, in my opinion, one of the best tests of the worth, status and weight of any democracy is the way in which prisoners are treated in state institutions, whether police cells, state prisons or any of the other catalogue that one finds in the Bill as it is presented today. How are prisoners treated; what recourse is there if something goes wrong—either recourse later in their hands or in the hands of relatives; and what about the duty of care? I say again that if we do not include this measure in the Bill, what sort of message does that send inside and outside the system? What sort of message does it send inside and outside this country, particularly to those nations that we are trying to impress for reasons that I need not parade this evening?

This is an exercise in procrastination and/or prevarication. Although the Minister has talked about a power in the Bill and has suggested it again this evening, a date would suffice as far as I am concerned—from the way in which noble Lords are nodding, I think that a date would suffice for them as well. Without a date, I cannot support what is suggested by the Government. Like other noble Lords, I am conscious of the depth of the constitutional water that we venture into if we return the Bill to another place, but I cannot vote with the Government and I cannot support such an omission from the list of requirements that go to the status and weight of a civilised society.

My Lords, I begin by noting that we are mindful that tragedy is the backdrop to this legislation, as many noble Lords have said. I pay tribute to all those who have spoken with enormous conviction. Whether I agree or disagree with them and whether they sit on my Benches or other Benches, I hold them in high regard, and I hope they know that. I know that noble Lords recognise that the principle that lies behind the passion with which they have spoken tonight and in earlier debates has been accepted. My honourable friend Gerry Sutcliffe made clear in another place that the principle has been conceded. Your Lordships’ House has done what it does best, which is to take issues of great concern and to ask the Government to rethink their position. I am extremely grateful that noble Lords understand how far the Government have moved. The principle is there. That is important because some speeches sounded a little as if we had not considered it, but we have.

The commitments made by my right honourable and honourable friends in another place, my noble and learned friend and other Ministers who before me had the privilege of taking this important legislation through are real. I hope that noble Lords accept that the commitments with which we stand before you today about the principle that we have conceded are real and genuine. Those commitments will stand whatever the job that anyone, including me, is in, or not in, in a few days from now, not least because I have been extremely impressed by the quality and diligence of the work of the officials in my department, who have done their very best to think carefully and consistently about the implications of what is proposed.

I do not want to get into whether the Bill will be killed. The noble Lord, Lord Hunt of Wirral, is right that it is possible, in exceptional circumstances, for extra time to be granted, but it is granted only when the Government can demonstrate that assistance would be helpful. At present, I can see no way that extra time would change the position. Noble Lords need to be aware that we are in a timetable, and that is an important factor in our deliberations, but I say no more than that because I have no intention of trying to twist anyone’s arm on that basis. Noble Lords will make their decision as they wish. I know that that will be one of the considerations that will be taken into account.

Expressions such as “disgracefully irresponsible” were used. I take collective responsibility for my Government’s actions and after six years as a Minister I am used to many things being said, but that is not what we are trying to be. It would be very easy for me to be very popular in your Lordships’ House—it is something I try to be, particularly when there is an election going on for Peer of the year—however, I have responsibly taken back the comments made by noble Lords in our discussions, and I have responsibly reported the concerns that have been raised. I have discussed this with my ministerial colleagues and with the officials in my department. They have raised two points that I obviously did not make clear to the noble Viscount, Lord Bledisloe. First, the changes in the Bill about the relationship between this legislation and Crown immunity are uncharted and potentially dramatic. There is no question but that it is important that the Government are able to see what those changes would mean. They are good changes and are fully supported in your Lordships’ House, but they take us in new directions. We need to consider issues in the context of public policy. These may sound like woolly words, but noble Lords will remember perfectly well legislation on, for example, health and safety, whose interpretation resulted in circumstances that were neither predicted nor, indeed, wanted in legislation. Those are important considerations in bringing forward legislation.

The second point is that because legislation covers Northern Ireland, Scotland, Wales and England, it is important that the Prison Service is debated and discussed properly. This is not about delaying tactics but about taking with us the people who feel deeply the tragedies that happen in our prisons. Such people are charged with looking after, protecting and supporting those in prison to try to help them to come out of prison and not return. I believe these people take the tragedies very much to heart and worry about the consequences for them. I do not put them into the category where they necessarily take any responsibility for them—these tragedies happen, and they feel them extremely keenly.

We are a revising Chamber. We have revised the legislation. It has gone back to another place. Another place has considered it. Mr Denham and Mr Dismore have also considered it. They felt that the Government have moved sufficiently. We take these responsibilities properly and rightly to heart. I hope that the legislation can find its way on to the statute book as quickly as possible. It is not about avoidance; it is about doing this properly, and bearing in mind the responsibilities we have as a Government to make sure that what we do works well. On that basis, I hope that noble Lords will feel able to support the Government on this occasion, bearing in mind all I have said, and not to vote for the amendment.

My Lords, I am sure that I echo the opinion of everyone in the House when I thank the noble Baroness for the care, courtesy and humanity with which she has presented her case. As always one listens with great care because her words are not lightly chosen and I respect what she says. I am sure also that noble Lords will have been very moved by the contribution by the noble Lord, Lord Morris of Handsworth, to our debate this evening. It was outstanding in its clarity and courage and represented a case which I think is unassailable.

I declare a past interest as a former chief inspector of Prisons. During that time, I had the opportunity to see first hand the most marvellous work being done by people in prisons, to which the Minister has quite rightly paid tribute. It is marvellous work, and one admired them for all they did in the difficulties. I have to say that I also saw some of the most awful examples of bad work, which let them down and let down the name of their service. Frankly, I always found it extraordinary that that was not dealt with.

When I used a word such as “irresponsible”, I was referring to the fact that I do not think that people who do not exercise proper management of either the duty of care or their responsibility should be allowed to get away with it, in particular when they owe a duty of care to individuals who are in the care of the state.

This is an enormously serious issue. Nobody wants to kill this Bill; we all want to see it enacted. I have said, and I repeat, that I am more than happy to discuss the matter, and I will suggest a date which I know will be acceptable to many noble Lords because I have discussed it with them. We owe a duty, as the noble Lord, Lord Morris, said, to the relatives as much as anything else. We, as a House, need to express our views as clearly as we can. Therefore, I would like to test its opinion.