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Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No. 3) Order 2011

Volume 729: debated on Tuesday 5 July 2011

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No. 3) Order 2011.

Relevant documents: 23rd Report from the Joint Committee on Statutory Instruments.

My Lords, the commercial order would implement Section 2(1)(d) of the Corporate Manslaughter and Corporate Homicide Act 2007. The amendment order would add two categories of person to the list contained in Section 2(2) of the Act. These are persons owed a duty of care by virtue of either being held in the custody area of UK Border Agency customs facilities or being held in Ministry of Defence service custody premises.

The purpose of the commencement order is to implement Section 2(1)(d) of the Corporate Manslaughter and Corporate Homicide Act 2007—which I shall refer to as the “custody provisions”. The amendment order will extend the provisions to facilities not already covered in the Act; namely, Ministry of Defence service custody premises and customs custody facilities which have now become the responsibility of the UK Border Agency.

Before going into the detail of the orders, I shall briefly remind Members of the Committee of the context surrounding the custody provisions. The Corporate Manslaughter and Corporate Homicide Act 2007 created an offence whereby an organisation could be found guilty of corporate manslaughter if the way in which its activities were managed or organised resulted in a death and amounted to a gross breach of a relevant duty of care to the deceased. The breach must be grossly negligent and a substantial part of it must have been in the way activities were managed by senior management.

The offence was created to deal with the problem of obtaining convictions of corporate bodies because of the operation of the identification principle, which required the prosecution to show that the offence was in essence committed by the “directing mind” of an organisation. This meant that, in some instances, because of the complexities of the decision-making process in big companies, it was not possible to identify a single individual—that is to say, the directing mind—with specific responsibility for the failing. The new offence allows an organisation’s liability to be assessed on a wider basis, providing a more effective means of accountability for very serious management failings across the organisation.

The majority of the Act came into force on 6 April 2008, with the exception of the custody provisions, whose implementation Parliament agreed would be delayed by three to five years. During the final stages of the Bill’s passage through Parliament, a lengthy discussion took place as to whether deaths in custody should be covered by the Act. After much debate, the then Government were finally persuaded to accept clauses that would extend the Act to the management of custody, but argued that custody providers would need time to prepare. A compromise agreement was reached to the effect that the custody provisions would be implemented between three and five years after the Act came into force. The Bill was passed on this basis. Custody providers have since indicated their readiness to implement the provisions in two reports to Parliament, published in 2008 and 2009.

The custody provisions do not create additional duties. All custody providers already owe duties of care to detainees. The commencement order makes these duties of care relevant for the purposes of the offence in the Act, which means that, once commenced, an organisation responsible for the management of custody, including a government department, could be convicted of corporate manslaughter if its management failings led to a death.

The commencement order simply illustrates the coalition Government’s long-standing commitment to commence a provision which we fought for during the passage of the Bill. We felt then, and still do now, that there is no good reason why a victim of a failing by a government department should not be afforded the same protection as the victim of a failing by a private corporation. We believe that the state has a particular responsibility to those for whom it has a duty of care, such as persons held in custody, and should lead by example. Having established that custody providers are ready to comply with the custody provisions in the Act, we are here today to debate commencement of the provisions at the earliest available opportunity.

We are here today also to debate an amendment order which brings military and customs facilities into the scope of the Act. This is an important amendment that ensures that the law will be applied consistently to all custody providers. The intention to extend the Act is nothing new; it was signalled in the annual progress report that I have already mentioned, and we have been assured by the relevant departments that the custody providers concerned are ready for implementation.

As with commencement, the question is not so much why extend but what possible reason can there be not to extend. I put it to the House that there is none. I believe that both orders constitute positive and necessary developments, and I trust that the members of this Committee will agree.

My Lords, it is helpful to put this order into some context. The corporate manslaughter provisions were considered by the Independent Advisory Panel on Deaths in Custody. When one looks at the statistics on page 9 of the report, which was a joint Ministry of Justice and Home Office report, one sees that in 1999 there were 643 deaths in state custody. That number has reduced in the past two years to 483 and 366, but that is a lot of people who have died in custody. It is important that there should be corporate responsibility, not simply for claims of negligence but for criminal claims. We are very pleased that this order is now being introduced.

I have two questions for the Minister. One relates to service custody. Do I take it that the Ministry of Defence could be criminally liable for a death in service custody abroad? The other matter that concerns me is whether the private organisations that provide prison accommodation and in particular transport come within the provisions of the Act, so that any default on their part means that they will be subject to criminal liability as well as to liability in civil law.

My Lords, I would like to step in briefly on this matter. The law dealing with the liability of corporations for offences, or matters for which the corporation has been responsible, has been inadequate in recent years. In particular, to make the corporation liable for homicide, as in this case, or for other purposes, it has been necessary for it to be shown that not only was the corporation itself negligent but that negligence could be attributed to a directive member of the corporation. Therefore, I very much welcome this particular piece of this particular order.

I should mention also that a recent and important change in this law came into effect a couple of days ago with the Bribery Act, which makes liability for bribery subject not to any particular identification of any particular individual who is responsible but simply to the incompetence of the corporation itself. Therefore, I very much welcome this particular amendment.

My Lords, I, too, welcome the orders. As the Minister said, at the time of the passage of the Corporate Manslaughter and Corporate Homicide Act 2007 there was much discussion about this issue in both Houses. It was absolutely right that the Bill should encompass this particular aspect, because it is important that an organisation can be found guilty of manslaughter if the way in which its activities were managed or organised causes a death. That is absolutely right. It is particularly important for the victims’ families because they need the certainty that such deaths can be properly investigated and authorities brought to justice.

I have only a couple of questions. My first question relates to the custody suites in the UK Border Agency and the Ministry of Defence. Is it intended that there will be a review of those specific holding and detention areas? Like the noble Lord, Lord Thomas of Gresford, I would like an assurance that those in the private sector who are responsible for the custody and transporting of offenders can also be brought to justice.

In the other place, a member of the DUP asked whether or not there had been discussions with the Northern Ireland Assembly. It was not absolutely clear from the Minister’s response what discussions had taken place with the Assembly. I realise that they are a separate entity but it is important that discussions should take place between the Assembly and the Government and I would grateful for information from the Minister.

I thank all noble Lords who have contributed to the debate and for the general welcome that has been given to the orders.

On the question asked by my noble friend Lord Thomas of Gresford, Section 28 provides that the Act extends only to England, Wales, Scotland and Northern Ireland; it will not apply to Ministry of Defence facilities abroad. If I am wrong about that I shall write to my noble friend. However, I believe that to be correct.

On the issue of private providers, which was referred to by both the noble Baroness, Lady Royall, and my noble friend Lord Thomas of Gresford, the Act applies to contracted services. Contracted service providers of custody will continue to be responsible for their actions in delivering safe custody. The Act does not place new duties on them. We will retain residual responsibilities in relation to the management and monitoring of the contractual arrangements, and they will be covered by the Act in this respect. They will have the same duties of care.

On the issue of inspection, in respect of the Border Agency customs facilities, a review relating to the care of an arrested teenager was initiated as a result of a death in custody in 2007 and is due to be finalised by the Chief Medical Officer. Once the recommendations have been finalised, the UKBA will be reviewing its processes and initiating an implementation programme.

In respect of the MoD, the Army has reviewed its need for service custody facilities and in September 2010 endorsed some recommendations, including an immediate reduction of authorised unit custodial facilities from 67 to 22.

The points made by the Committee have been extremely relevant, not least the rather chilling figures of the number of deaths in custody. Over recent years—this applies also to the record of the previous Administration—there has been a consistent attempt by government to address the problems. My noble friend Lord Thomas will agree that the bald figures cover a range of reasons for death in custody. Nevertheless, in recent years the police, prison authorities and all those who have a duty of care have made a real effort to address the reasons for deaths and to prevent them wherever possible. They have changed techniques for dealing with violent prisoners, changed the furniture in cells and limited opportunities for suicides. They have introduced a whole range of activities and initiatives to tackle the problem.

There is no doubt that the Government, as the state, freely accept in this order the responsibilities that they imposed on the private sector with the initial Act. I remember my noble friend Lord Goodhart and others pressing these matters when we were in opposition and I am pleased that we are able to bring these orders together.

Criminal justice is devolved in Northern Ireland and the local Minister and Assembly have the relevant commencement powers under the Corporate Manslaughter and Corporate Homicide Act, which we understand the Assembly is looking at. I am the Minister in the MoJ responsible for contact with the devolved Assemblies and Administrations and I shall make sure that our views on and experiences of this aspect are made available to our colleagues in Northern Ireland.

In relation to private provision of prison and transport facilities, what is the relationship between those private facilities and the department? Could the department resist a charge under the Corporate Manslaughter and Corporate Homicide Act on the basis that the responsibility has been contracted out? My noble friend may not be able to answer straightaway, but I would be grateful if he could clarify that at some stage.

I certainly cannot answer that directly; I will have to write. It is an interesting point. I shall not mention providers by name, but if a private prison or a private transporter of prisoners was guilty of corporate manslaughter, would the line of responsibility run back to the MoJ? I take it that that is the point. It is an interesting point. I suspect that, on the one hand, the suggestion would be that the responsibility for the corporate manslaughter would be that of the provider and that the provider would be charged; on the other hand, there is the argument that the MoJ should never have given the contract to such a body in the first place. This is what makes this job both interesting and frightening at times. I shall write to my noble friend to clarify.

Motion agreed.