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Corporate Manslaughter and Corporate Homicide Bill

Volume 694: debated on Monday 23 July 2007

My Lords, I beg to move that the Commons amendments 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.]

10R: Page 2, line 29, at end insert-

“(d) a duty owed to a person who, by reason of being a person within subsection (1A), is someone for whose safety the organisation is responsible.(1A) A person is within this subsection if-

(a) he is detained at a custodial institution or in a custody area at a court or police station; (b) he is detained at a removal centre or short-term holding facility;(c) he is being transported in a vehicle, or being held in any premises, in pursuance of prison escort arrangements or immigration escort arrangements;(d) he is living in secure accommodation in which he has been placed;(e) he is a detained patient.”

10S: Page 3, line 12, at end insert-

““custodial institution” means a prison, a young offender institution, a secure training centre, a young offenders institution, a young offenders centre, a juvenile justice centre or a remand centre;“detained patient” means-(a) a person who is detained in any premises under-

(i)Part 2 or 3 of the Mental Health Act 1983 (c. 20) (“the 1983 Act”), or

(ii)Part 2 or 3 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) (“the 1986 Order”);

(b) a person who (otherwise than by reason of being detained as mentioned in paragraph (a)) is deemed to be in legal custody by-

(i)section 137 of the 1983 Act,

(ii)Article 131 of the 1986 Order, or

(iii)article 11 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/2078);

(c) a person who is detained in any premises, or is otherwise in custody, under the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or Part 6 of the Criminal Procedure (Scotland) Act 1995 (c. 46) or who is detained in a hospital under section 200 of that Act of 1995;

“immigration escort arrangements” means arrangements made under section 156 of the Immigration and Asylum Act 1999 (c. 33);”

10T: Page 3leave out line 25

10U: Page 3, line 25, at end insert-

““prison escort arrangements” means arrangements made under section 80 of the Criminal Justice Act 1991 (c.53) or under section 102 or 118 of the Criminal Justice and Public Order Act 1994 (c. 33);“removal centre” and “short-term holding facility” have the meaning given by section 147 of the Immigration and Asylum Act 1999 (c. 33);“secure accommodation” means accommodation, not consisting of or forming part of a custodial institution, provided for the purpose of restricting the liberty of persons under the age of 18.”

10V: Page 3, line 37, leave out “or (b)” and insert ”, (b) or (d)”

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

10X: Page 6, line 43, leave out “or (b)” and insert ”, (b) or (d)”

10Y: Page 13, line 3, at end insert the following new Clause:-

“Power to extend section 2(1A)(1) The Secretary of State may by order amend section 2(1A) to make it include any category of person (not already included) who-

(a) is required by virtue of a statutory provision to remain or reside on particular premises, or(b) is otherwise subject to a restriction of his liberty.(2) An order under this section may make any amendment to this Act that is incidental or supplemental to, or consequential on, an amendment made by virtue of subsection (1).

(3) An order under this section is subject to affirmative resolution procedure.”

10Z: Page 13, line 20, at end insert-

“( ) An order bringing into force paragraph (d) of section 2(1) is subject to affirmative resolution procedure.”

10AA: As an amendment to the Clause inserted into the Bill after Clause 19 by Lords Amendment No. 33:-

Line 30, at end insert-

““premises” includes land, buildings and moveable structures;"

My Lords, I beg to move Motion A, That the House do not insist on its Amendments Nos. 2, 3, 5, 6 and 10, or on its Amendments Nos. 10P and 10Q proposed in lieu of Commons Amendments Nos. 10K to 10N, and do agree with the Commons in their Amendments Nos. 10R, 10S, 10T, 10U, 10V, 10X, 10Y, 10Z and 10AA in lieu of Lords Amendments Nos. 2, 3, 5, 6, 10, 10P and 10Q.

We turn to the discussion of fresh amendments sent to us from another place. It might be helpful if I say a few words about the deadline for considering the Bill. The noble Lord, Lord Hunt, and other noble Lords raised the question of the deadline in our previous discussions and noble Lords will be aware from previous debates that, under the procedures of the other place, proceedings on a Bill that has been carried over from the last Session—as was the case for this Bill—must be completed within 12 months of the Bill being introduced unless that period is extended. That period has been extended, by a week, to provide the other place and your Lordships’ House with further time to consider the very significant further amendments that the Government have brought forward.

The nub of concern with the Government’s amendments so far has been that they would leave a discretion whether to extend the offence to custody. The further amendments tabled by the Government remove that doubt by extending the relevant duties of care in the Bill to include duties owed to those in custody. In a nutshell, the amendments make custody an integral part of the offence. I hope that noble Lords will agree that that is a very significant change. This is achieved by Amendment No. 10R, which also sets out a wide definition of custodial environments that will be covered. This comprehensively addresses the forms of custody identified in the amendments proposed in your Lordships’ House.

There is also a power, subject to the affirmative procedure, to amend the definition to include further forms of detention. This does not allow the definition as currently set out to be restricted or for exceptions to that definition to be made—I think that your Lordships will agree that those are important points—but it provides some flexibility to add further forms of custody or analogous circumstances if required.

I am aware that the noble Lord, Lord Goodhart, as chairman of the Delegated Powers and Regulatory Reform Committee, was concerned to know what this power might be used to cover. I am grateful that he spent a few minutes with me earlier to explain his concerns. Examples might be facilities used for custody by Her Majesty’s Revenue and Customs or detention in penal military establishments. There might be a case for extending to premises such as approved probation or bail hostels. However, there is no intention to extend this to areas that do not involve any forms of custody or detention in premises designed for holding people. That, at least in part, addresses his concerns, and I have already indicated that the Government will write to him in his capacity as chairman of the Delegated Powers Committee to ensure that all his concerns are covered.

The commencement of the new offence in respect of custody will be subject to an affirmative order. That is provided by Amendment No. 10Z. I will return to the question of timing in a moment. However, there has been widespread recognition of the need to provide some delay before this aspect of the legislation is commenced. Providing for commencement by affirmative order explicitly recognises that intention.

These amendments bridge a gap that has troubled many in this House by moving from a discretion to extend the offence to custody to making this an integral part of the offence. That is a significant movement by the Government and I very much hope that these amendments will receive support from your Lordships’ House. I welcome the fact that the amendment to my Motion in the name of the noble Lord, Lord Ramsbotham, does not seek to disagree with the amendments.

I turn now to the question of timing. In providing for custody to be an integral part of the Bill, the Government are starting a clear process towards extending the offence to custody. However, as I and other noble Lords, including my noble friends Lord Rosser and Lord Lea, have explained on previous occasions, there are complexities in extending the new offence to custody. It is important that this process is managed properly in consultation with the services that will be affected. My right honourable friend the Secretary of State for Justice explained in the other place last week that:

“There are anxieties in the police and the Prison Service that unless they have time to understand fully the extent of these obligations and take steps to implement them, the services—not at a senior level, but at a lower level—will start to become risk averse, and that could have many serious consequences”.—[Official Report, Commons, 18/7/07; col. 333.]

Against that background, the Secretary of State went on to suggest that he considered that a reasonable delay would be between five and seven years.

Concerns have been raised that that sort of timetable does not provide the necessary impetus to take matters forward, and the Government are prepared to recognise and to respond to those concerns. For that reason, I give noble Lords an assurance that the sort of timetable that the Government will aim for will be the three-year period from commencement that the noble Lord, Lord Ramsbotham, suggests in his amendment to the Motion.

However, I say that on the basis that noble Lords should not underestimate the difficulties facing the Prison Service and the police. There is very considerable pressure on the capacity of the Prison Service, as noble Lords know. Now is not the time to debate why that is the case and the measures the Government are taking to address those pressures. However, it must be recognised that there are serious pressures and demands imposed on staff, and that the Prison Service has a difficult responsibility for managing those pressures in a way that is safe for staff and inmates. We should also not underestimate the considerable challenges the police face day to day in managing people coming into police custody. Noble Lords will be aware that because of the condition and demeanour of many of these people, this is a dynamic and occasionally volatile environment in which it is difficult to entirely eliminate risk. I know that the Prison Service, through the custody improvement programme and the publication of guidance on safer detention last year, is taking its responsibilities for those in its custody very seriously.

My right honourable friend the Secretary of State for Justice said that there would be annual reports on progress towards commencing this part of the Bill, and there will be significant developments between now and when a report is produced next year. The review that the noble Lord, Lord Carter of Coles, is undertaking on the supply and demand of prison places will have reported, and assessments will be available of the progress that police forces are making towards complying with the safer detention guidance issued in February last year.

The exact timetable must be subject to further evaluation in light of these developments. It may therefore look more like the five years that my right honourable friend the Secretary of State for Justice referred to. However, I give the assurance that the Government will start out on this process with a timetable of three years in mind. In doing so, we will give careful consideration to the possibility of staged implementation. I very much hope that earlier progress could be made on some of the various forms of custody listed in Amendment No. 10R. On that basis, I hope that noble Lords will feel able to support the Bill as it now stands.

Writing a timetable into a Bill will set this in stone. I hope I have made it clear that there are significant issues about the extension of the offence, and that we are at the start of a process of applying the offence to custody. I have provided what I hope is real reassurance, setting an ambitious timetable that the Government will work towards. But, as noble Lords will recognise, we must be able to assess progress against that and see where things stand, and the annual report will enable noble Lords to see progress to date. I therefore hope that noble Lords will not seek to act further and fix the timetable in legislation.

I very much hope that we are today at the end of our debates on this legislation. I am now in a position to put the Bill on the statute book. The Government have offered considerable further movement, and custody will now appear as an integral part of the offence. I have offered assurances about the timetable for commencing that part of the legislation. I hope your Lordships’ House will accept these commitments and not send the Bill back to another place.

Moved, Motion A, That the House do not insist on its Amendments Nos. 2, 3, 5, 6 and 10, or on its Amendments Nos. 10P and 10Q proposed in lieu of Commons Amendments Nos. 10K to 10N, and do agree with the Commons in their Amendments Nos. 10R, 10S, 10T, 10U, 10V, 10X, 10Y, 10Z and 10AA in lieu of Lords Amendments Nos. 2, 3, 5, 6, 10, 10P and 10Q.—(Baroness Ashton of Upholland.)

rose to move, as an amendment to Motion A, Motion A1, at end insert “but do propose the following amendment to Commons Amendment 10Z—

10AB: Line 3, at end insert-

“( ) If no order is made under subsection (1) bringing into force paragraph (d) of section 2(1), that paragraph shall come into force following the expiry of a period of three years following the commencement of the other provisions of this Act.””

The noble Lord said: My Lords, like every other Member of this House, I am sure, I am immensely reassured by what the Minister has just told us. On many occasions in previous debates on this subject, Members of your Lordships’ House have paid tribute to her, not just for her willingness to engage in discussion with us but for the way she has represented the case in this House and, more importantly, within government and behind the scenes, as it were. I am sure she must have played a considerable part in enabling this satisfactory conclusion to be reached. I am sure we all pay great tribute to her.

I also pay great tribute to the Secretary of State in another place, because he has changed his position considerably over the last four weeks, influenced, I am sure, by the noble Baroness. Nevertheless we have been given his assurance as well as hers, so it would be churlish to press for more. My reason for tabling this amendment was my concern that seven years was too long. It represented more than the life of this Parliament and probably the life of the next Parliament as well. As an ex-soldier, I could not help remembering that D-day was planned and executed in one-quarter of that time. I suspect that the complexities of the Bill are nothing compared with that operation.

The noble Baroness rightly mentioned that there are things to be done and issues to consider with the police and prisons. Like me, my noble friend Lord Dear was delighted to hear what has happened. If possible, he will want to be involved in any discussions in which he can help to take the matter forward.

It is right to recognise that this has been a long time in coming. When we last debated it, the noble Baroness said that she hoped that this would not be the way in which business was conducted and that discussion about such matters before they reached the Floor of the House was much more satisfactory. I agree, but it has been very interesting that this House has consistently stuck to this line without wavering. I am sure that victims up and down the country will be very glad of the outcome.

I must admit that as a novice I am not sure of the procedure involved. Other Members may wish to speak. I think that it would perhaps be courteous and sensible to bid to withdraw my amendment.

Not yet, my Lords? I stand corrected. I beg to move.

Moved, as an amendment to Motion A, Motion A1, at end insert “but do propose Amendment No. 10AB to Commons Amendment 10Z”.—(Lord Ramsbotham).

My Lords, I thank the noble Lord, Lord Ramsbotham, for his robust stand on this issue. To an extent, he has achieved considerable progress. The House Magazine nominated the noble Lord for Peer of the Year and the votes in your Lordships’ House confirmed him as that. He deserves all the congratulations he has received because of the stand that he has taken on this matter.

I am disappointed for a number of reasons. When I last looked at the figures, we had, on average, two deaths in custody per week. I am disappointed about the timescale—that it will take another three years before we come to a conclusion on this matter. I am disappointed that in the mean time there will be this exemption; I will explain that. I am also disappointed for those who lost their dear ones through deaths in prison; with future deaths, others will have to wait even longer to reach a conclusion.

Our stand has been clear from day one. A law that distinguishes between the private and public sectors—or between the private sector and the private sector working in the public sector, as is the case with prisons—is a bad law. There should be uniform application, but that is lacking. We thank the Minister for her assurance that the Government hope to put the situation right at the end of three years.

I am also concerned about the prison population; that was one of the Minister’s arguments. The prison population is increasing day by day in this country and I cannot see that in three years’ time we will be any better off than we are now. The problem will still be there. I also believe that, with the increase in terrorism in this country, accidents will happen, and there may be shootings. There should be some accountability about such deaths.

I am disappointed by the long timescale involved. What are the interim plans within the three-year period? It would be helpful if the Minister explained that. We have gone as far as we can on this matter. If the noble Lord presses the amendment there will be further ping-pong, but I understand that he now intends to call it a day; we respect his wishes. If he had called a Division, we on this side would certainly have supported him. However, I promise that the matter will not end when this debate finishes. We will take every available opportunity, in Questions and short debates, to raise this issue until such time as it is on the statute books. Let common sense prevail: our shortcomings and rising prison population should not hinder progress in this very important matter.

In conclusion, I thank the Leader of the House for her courtesy and kindness in keeping us informed at every stage. She has truly acted as the Leader of the whole House and we are very grateful to her.

My Lords, I agree with the comments of the noble Lord, Lord Dholakia, about the role of the Leader of the House. I add the thanks of these Benches for the way in which she has persuaded her ministerial colleagues. She will downplay the extent to which she has persuaded them, but we all know the extent to which she has put forward views from all sides of this House.

Today we have before your Lordships’ House virtually 99 per cent of the package of amendments put forward in the other place. These are a close replica—with some welcome enhancements—of the package of amendments tabled by the noble Lord, Lord Ramsbotham, and repeatedly supported by noble Lords in a series of extraordinary and profound debates. It is a moment for congratulating noble Lords on the way in which they have upheld the rule of law. The principle that all are equal in the eyes of the law should apply.

Noble Lords are also to be congratulated on upholding the rights of those in custody and in the hands of the state. Often the most vulnerable in our society, they must be owed a duty of care. This is a partial victory, but by no means a Pyrrhic victory. We have ensured, through proper pursuit of a vital point of principle, that ours is a system that will ultimately submit itself to the same tests of competence and decency that it imposes on others.

I share the frustration of the noble Lord, Lord Dholakia, at Amendment No. 10AA, in the Government’s name, which still separates the implementation of different strands of the Bill. Whereas the Secretary of State confirmed in the other place that the various measures in the Bill will be implemented on 6 April next year, the application of the offence to deaths in custody remains out on a limb. Its introduction is not legally binding; it is not committed to in word or law. We have, however, had a number of key concessions. Mr Straw said:

“We have shifted; there is no question about that”.—[Official Report, Commons, 18/7/07; col. 337.]

Well, good on you, your Lordships. He went on to say that he very much hoped to implement these key provisions in less than the period of five to seven years.

I thank the Minister for coming forward today and saying that the Government will work to a timescale of three years. However, this is still only an enabling power on the face of the Bill. I would be wrong not to express my disquiet about that. There are just under 100 provisions in the Criminal Justice Act 2003 that remain neither enacted nor repealed, wholly or partially. It is sad but true that this Government have form on omitting to enact provisions in legislation. The Minister has persuaded us that she means business. It is her personal undertaking on this that I hold most dear and most valuable.

It has been a difficult time. I can imagine the pressures that have been put on the noble Lord, Lord Ramsbotham. He is a Cross-Bencher. Often in this House the Cross-Benchers take a key lead in putting forward a point of principle, and I congratulate him on the way in which he has taken forward this very important issue. He has constantly stressed the importance of recognising that, in enacting this legislation, the families of those who have been bereaved in these terrible circumstances are just as important as the families of those who have been bereaved in other circumstances.

I am ever mindful of the wise words of my honourable friend in the other place, Dominic Grieve, who observed that the Government’s response to private institutions that have found it difficult to convert to health and safety legislation in the past has been quite simply, “Tough”. Tough is exactly what I hope the Government will be: tough in the test that they set themselves and those for whose shortcomings they are ultimately responsible, and tough on any institutions that, through grossly negligent senior management, fail to prevent unnecessary loss of life among their inmates.

In conclusion, I pay tribute to the noble Lord, Lord Ramsbotham, and to the other noble Lords who have supported him. Appropriately and deservedly, last week he was named and celebrated as Peer of the Year. Thanks to his vision, persistence and unflagging energy, justice will be done—sadly, not today or tomorrow, but perhaps one day.

My Lords, I would not wish to find myself against the noble Lord, Lord Ramsbotham, and I am not at all surprised that his persistence has borne fruit in the way that it has.

I am very grateful to the Lord President for the way in which she has spoken. If we are at the end of a process, that itself must be a good thing. However, she said one thing about which I should like to voice a word of concern. If I understood correctly, she said that one reason why it was important that we did not put a timetable into the Bill was that the service or services might have difficulty adjusting to what the Bill requires. If I heard her correctly, she went on to say that the concern was about not the senior levels of the service but the junior levels. When I heard her say that, I thought, “Yes, I know what you mean, and it is what we often say, but it is an argument about which we should be extremely cautious”. If, in some meeting of bishops, I catch myself saying that of course I agree with something but I could not possibly expect people back home to go along with it, I always know that I am on a difficult wicket.

The task of legislation and, if I may say so, of government and senior levels in the service is to set an ethos that is absolutely clear. If that happens, it enables change, but change does not happen if people at the lower levels of institutions suspect that secretly the people at the higher levels are not very committed to the change. Time and again, I have seen people of great vulnerability cared for in places only because a very clear policy has been set by the people in charge. I only hope that this possibility of delay is not wrongly attributed to people at a lower level but that we who have the opportunity to form an opinion about this matter make the ethos that we require absolutely clear. I am sure that that is true of the Lord President, but that form of argument needs to be noticed when it is brought into play.

My Lords, I am very grateful for the spirit in which noble Lords have taken forward our debates on these amendments put down by the Government in another place. I have already congratulated the noble Lord, Lord Ramsbotham, on his award, which he rightly deserved. I was up against him for it but I am very pleased that he won it. It is also fair to say that we have been at great pains, in all our deliberations, to ensure that noble Lords who have quite reasonably believed that this is a point of great principle have not felt that either the Government or I, representing the Government, have seen it as anything else. I make it clear that those who feel strongly that the Bill is important were well represented by noble Lords who felt equally strongly. I think particularly of the noble Lord, Lord Hunt of Wirral, but also of noble Lords from across your Lordships’ House.

I was delighted that the noble Lord, Lord Ramsbotham, said that we had reached a very satisfactory conclusion, for I hope that today will mark the end of this part of the process and the beginning of what we need to do next. The noble Lord’s disappointment about the timetable was echoed in particular by the noble Lord, Lord Dholakia. I know that it was felt that, although my right honourable friend the Secretary of State had put a timetable on this, that was some considerable time away. I hope that my words about an ambitious timetable of three years, which my right honourable friend the Secretary of State gave me to use today, will be well recognised as being what the Government seek to reach.

The noble Lord, Lord Ramsbotham, also talked about discussion outside your Lordships’ House. I want to reiterate that one ambition of mine, as Leader of the House, is that we deal with many of these matters away from the Floor of the House, so that when they come to your Lordships we have had the benefit of such debate and discussion as can take us through some difficulties and, I hope, to some kind of conclusion. That will not always happen, but in my experience it has been a good way to conduct our business. I pay tribute to all noble Lords who have given me their time in order for me to understand fully their concerns and to enable me and others to reflect them in discussion with my right honourable friend and others.

I know that the noble Lord, Lord Dholakia, is disappointed, but he will agree that the issue of deaths in custody will not be addressed by this legislation alone. Indeed, our debates during the passage of this Bill and on other legislation have shown the importance of trying to tackle effectively situations that may be about suicide or worse. The way to approach this legislation is to see it as part of a jigsaw puzzle, not the answer in itself.

The noble Lord, Lord Dholakia, mentioned interim plans. We have talked already about the annual report to your Lordships’ House and to another place. Discussions will begin, and I am mindful that noble Lords may wish to participate in those, at least initially; it is up to your Lordships how far to take that forward. I expect noble Lords to continue to debate this through questions in your Lordships’ House and in the other place and to represent the views of this House through making contact with my right honourable friend the Secretary of State, not least through my noble friend Lord Hunt of Kings Heath, to whom the implementation of this will now fall in his capacity as a Minister. We could not do any better than to rest with him on that. We have put this in the Bill in this way partly to enable us, as I indicated, to stage implementation so that, as we are ready, we can come in even more quickly than my right honourable friend has indicated. I hope that noble Lords will see that as a useful way to address, at least in part, their disappointment and concern.

I say to the right reverend Prelate that we have discussed the issue of being risk-averse many times in my dealings with this legislation. The second time that this legislation was received in your Lordships’ House—in ping-pong, as we call it—we discussed those feelings on health and safety questions. I will not go into those again; suffice it to say that I was not trying to suggest that the people on the ground floor, if I may put it like that, within the Prison Service or the police would be less likely to wish to see this legislation or, indeed, to participate in what will happen. We simply have to be mindful of the impact that any new legislation has on those on the front line who must implement it, and to be sure that we have set it out correctly and properly. Noble Lords will know that that applies in a whole range of areas, not least here. That was really the point that I was seeking to make, but clearly I did not make very well.

I hope that we are done with the Bill. There will be a great deal of support for this piece of legislation to make it on to the statute book. I am grateful to noble Lords, today and on other occasions, as well as outside the Chamber. I hope that the noble Lord will withdraw his Motion so that we may now put this on to the statute book and move forward to the next phase.

My Lords, I thank the Leader of the House for her kind remarks and for the gravity with which she has summed up not only this debate, but the many others that we have had, as the noble Lord, Lord Hunt of Wirral, said. An enormous amount of humanity and good sense has come out of these debates. When the matter was in the other place, I was heartened by a remark made by the Secretary of State. He said:

“I am happy to provide regular reports … at least once a year and, if there is a demand for it, more often than that”.—[Official Report, Commons, 18/7/07; col. 335.]

I can assure him that there will be a demand. Now that we have, as the noble Baroness said, launched the initiative, there are those who will want to make certain that the momentum is maintained, which is a good military principle.

I take the opportunity of thanking all noble Lords who have taken part in the various debates on these amendments and who have voted. In particular, I thank the noble Lords, Lord Hunt of Wirral and Lord Dholakia, not only for their kind and generous remarks but also for their tremendous support. I also thank the noble Lord, Lord Lea of Crondall, who is not in his place. It has been a fascinating experience to discuss all the nuances of the Bill as we have proceeded through the various stages.

This morning I was in Wormwood Scrubs and was reminded of one complexity that may need to be ironed out. The complaint is that prisoners arrive so late that it is often difficult to sort out who should go into which cell. They arrive late because the drivers of the vans are also court officials. They cannot start driving until the court has closed, which means that prisoners are delivered too late. That is because resources do now allow for two separate people to do two separate jobs. If that sort of complexity is going to be ironed out to make a better Prison Service and a better prison system, the stimulus of the Bill will have had another valuable purpose. But, in the spirit of all that has been said and, as I say, thanking all those who have taken part, in particular the Minister, I beg leave to withdraw the Motion.

Motion A1, by leave, withdrawn.

On Question, Motion A agreed to.