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4 Dec 2006 : Column 100

Mr. Grieve: I regret slightly the fact that the Minister and I are disagreeing when a disagreement does not really exist. I have never suggested that there is a massive problem with our prison system whereby a large number of people are dying unnecessarily. However, 15 preventable deaths—if we can now agree on that figure—if they were preventable, is 15 too many.

I find it slightly odd that in addressing the House on the need for a corporate manslaughter provision the Minister pointed out the number of deaths that occur in the construction industry, for example. Big construction industry companies employ thousands of people, and we are talking about the deaths of one or two employees over a five-year period, but I doubt whether the Minister would ever use that as a justification for exempting the construction industry from the Bill’s provisions. If such exemption is to apply to the construction industry, I should point out that he has yet to make the case—I shall listen to him in a moment, however—as to why the Prison Service, the police or anybody else who detains people in lawful custody should be exempted. As I said earlier, the detaining of people in custody puts a peculiar responsibility on such organisations to ensure that they do not suffer preventable harm when so detained. For those reasons, the hon. Member for Hendon makes a cogent argument. I am happy to give way again to the Minister if he wants me to.

Jeremy Wright rose—

Mr. Grieve: I give way to my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright).

Jeremy Wright: I am grateful to my hon. Friend. Does he agree that the public would find it much more reassuring if the Government said that they have sufficient confidence in the Prison Service and that they believe that it does a good job in the vast majority of cases, but that, on those very rare occasions when a terrible misjudgment or gross negligence takes place, those responsible do not deserve protection?

Mr. Grieve: I agree entirely with my hon. Friend. I find the Government’s defensiveness on this issue curious.

Let us be clear: I very much hope that a time will come when my own party is in government. I have no idea where my destiny will be—it might be the Back Benches or outer darkness—but my colleagues and anybody who holds ministerial office, particularly in the Home Office, would, if the amendment were accepted, have to face the consequences of it. One consequence would be that the Prison Service or the police might have to plead guilty to corporate manslaughter as a result of the death of somebody in their charge. I am completely comfortable with that prospect, which would not bring the operation of the police or the Prison Service to a halt. It might mean that careers at the top end of the Prison Service—or, indeed, at ministerial level—come to a halt, but that is not necessarily the worst thing that could happen in the great scheme of things. One has to face the fact that that is precisely what the Minister intends in respect of directors, as we know from our previous discussion of certain companies.

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If the amendment were accepted, public confidence would be increased. If the general standards that have prevailed through Governments of all parties in the operation of custody are maintained, the chances of such a situation arising would be very slim. However, where it is clearly shown that there has been a corporate failure leading to death in custody, I cannot think of a good reason why a prosecution should not follow.

Mr. Davey: May I help the hon. Gentleman as he tries to understand why the Government are so reluctant to accept the amendment? He might think that I am being cynical, but when a death in custody occurred that should lead to such an offence, not just the Prison Service management or the police would be criticised, but the Government of the day and Home Office Ministers. Ministers and their Whitehall civil servants do not want the amendment, because they do not want the bad publicity. I hope that the hon. Gentleman agrees that that is a very bad reason for their refusing this amendment. Such an incentive is the way to ensure that we sort out the problems that exist in these public services.

Mr. Grieve: I agree with the hon. Gentleman, and it is also worth pointing out that public policy decisions have the protection of clause 3. This is no different from any other area of Government activity. It is for the Minister and the Government to make the case why this extraordinary exemption should apply to an area where, most particularly and peculiarly, the Government and their Departments have a special responsibility. That case has not been made, however.

I do not know what will happen in this House if we divide on the amendment—as I hope we will, because this matter has to be put to the test—but it is clear that the Bill must go to the other place, where there is a tide of opinion contrary to the Government’s current position. As the Bill has been consensual in many respects and is all the better for it, it is all the more important that we try to achieve in this debate a meeting of minds on what is a very serious issue. I can only reiterate that the hon. Member for Hendon and all the other Members who have said that corporate manslaughter should be possible in this context are right. I very much hope that the Government can be persuaded of that.

8.30 pm

Mr. Sutcliffe: I am taking the unusual step of making my contribution now because I may not have an opportunity later, and my hon. Friend the Member for Hendon (Mr. Dismore) and the hon. Member for Beaconsfield (Mr. Grieve) have asked me to explain the Government’s position. I am pleased that we have the opportunity to discuss the issue in more detail than we did in Committee—where it was dealt with fairly quickly and without much controversy. However, I recognise that it needs to be addressed.

In Committee, I said that deaths in detention environments are covered in important ways, and because I did not have the opportunity to detail those in Committee, I want to talk about that in a bit more detail now. In particular, I wish to highlight that the new offence will apply to the sorts of fatal incidents that this offence was originally intended to cover, when
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first conceived, in the context of proper management of health and safety. Throughout the discussions of the Bill, we need to keep a clear focus on that underlying objective—to take the health and safety agenda one step on and make improvements in the proper management of health and safety matters.

The deaths of people in detention, or of those working in detention environments, will be covered when the state of the workplace itself or use of equipment in the building is the cause of death. For example, a death caused by the failure of fire-fighting equipment or the failure of a fire door would not be excluded from the scope of the offence. Similarly, a death caused by faulty equipment in a workshop would not be excluded. Other deaths are also within the scope of the offence, such as deaths arising from gross failures in food hygiene. Such deaths are rare in prisons, as they are in the majority of workplaces.

Deaths that are not covered by the Bill are those that arise because of the way offenders are managed in prison. We are not talking about safe buildings or safe practices for carrying out dangerous activities, or the negligent use of dangerous equipment. We are talking about deaths that are connected to the very fact that a person is in custody. The majority of those are, as the hon. Member for Beaconsfield pointed out, suicides or, far less frequently, overdoses that unexpectedly prove lethal, and rarely they are the result of the violence of others. That is why I made the point about numbers.

The Government are deeply concerned about such deaths and treat all deaths in custody very seriously, as they do the whole issue of safety in custody. To take just a few examples, the Prison Service has in place a strategy to reduce prison suicide and has achieved a sustained reduction in suicide rates, most likely as a consequence of that work.

The safer custody programme, which ran from April 2001, was a risk-based strategy focusing on the riskiest prisoners in the riskiest prisons, with a holistic approach to preventing suicide among those most at risk of suicide, especially early in custody. Its key achievements included an investment of £26 million allowing physical improvements to be made at six pilot sites; the development of a new reception screening process so as to better identify those prisoners with mental health needs, in liaison with Prison Health; the development of a new care planning system for at-risk prisoners known as ACCT or assessment, care in custody and teamwork; the development of independent investigation systems through the prisons and probation ombudsmen; the development of safer prison design, including safer cells; the recruitment of approximately 600 mental health professionals to do in-reach work; and suicide prevention co-ordinators—SPCs—or equivalents, now operating in all prisons.

I make those points because my hon. Friend the Member for Hendon accused the Government of not trying to avoid deaths in custody and of running away from the issues, and the hon. Member for Beaconsfield spoke about many deaths. I am trying to describe the position.

Mr. Denham: My hon. Friend the Minister is right to describe what has been happening in the Prison Service. It is equivalent to what has happened in the NHS in an attempt to reduce deaths from clinical error.
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However, the Bill means that if a hospital fails to supervise its doctors effectively, it can be convicted of corporate manslaughter. What is the difference between that institution and a prison, another public institution that needs to be competently run according to the test laid down in this legislation?

Mr. Sutcliffe: I do not mean to be insulting in any way, but I would have hoped that my right hon. Friend would know the difference between the situation in the health service and the custodial position, in terms of the difficulties and complexities of custody. The custodial environment deals with difficult people.

Mr. Denham: All such environments are complex and difficult, which is why there is a high threshold for conviction. Does my hon. Friend accept that a number of those who die in custody have not been convicted of an offence—they die in police custody or on remand? Therefore, they surely have the same rights to protection under the law as any other innocent person would in any other part of their life.

Mr. Sutcliffe: My right hon. Friend makes the point that people should expect the same protection, but we are talking about different environments, and that is the difference. The hon. Member for Beaconsfield talked about what he would expect a future Conservative Government—God forbid—to do, but this is the first Government to consider removing Crown immunity and my right hon. Friend should acknowledge that.

Mr. Davey: The question that the Minister has to answer is why should a public body be able to kill someone by acting in a grossly negligent way and avoid criminal prosecution? The jury and the court can take account of the circumstances, but if there was gross negligence, prosecution should be possible.

Mr. Sutcliffe: We believe that that opportunity exists in terms of the recommendations that can be made with regard to the public sector, especially for prisons by the independent inspector of prisons. Listening to hon. Members this evening, one would think that lessons are never learned or that the Government and the Prison Service do not try to improve the situation.

There is a difference between what happens in a custodial situation and what happens in other areas. We believe that the requirements that we are making of the private sector bodies, such as the construction industry—in terms of their role as employers or occupiers—are the same that will be made of the Prison Service. We are being asked to go a step further in terms of the custodial position, and we do not accept that.

Mr. Grieve: I find those distinctions untenable. A corporate body that builds and tests aircraft, often at the limits of technology, is working in a difficult environment that may be threatening to an employee flying the aircraft. The company faces the possibility of being charged with corporate manslaughter if it is grossly negligent in the way in which it handles the issue. However, the Prison Service, another challenging environment, is to be entirely exempt. All that is being
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asked is that, subject to the difficulties it faces in its challenging environment, it should stand up and justify its decisions and, if it is grossly negligent, it should face the consequences. Anyone listening to this debate will be left with the unpleasant sensation that the Government are prepared to criminalise others, but when it comes to the essential services that they have to provide, albeit in challenging and difficult circumstances, they wish to provide special protection. That must be a very bad way to proceed with criminal justice policy.

Mr. Sutcliffe: The hon. Gentleman is entitled to his opinion but he is entirely wrong. In terms of the Bill, the Government are acting in three ways—as an employer, an occupier and a provider of goods and services. If the hon. Gentleman’s logic was followed through, the same principle would apply to the armed forces. To be consistent, his argument would have to apply to officers and members of the armed forces. Am I right or am I right?

Mr. Grieve: As the Minister knows, we looked at the issue in respect of the armed forces in some detail in Committee, and it is not an easy one. I found the Minister’s arguments more persuasive in that context, precisely because the armed forces consist of volunteers who have elected to work in a challenging environment. It is not a matter with which I am entirely comfortable, as he knows from our debates in Committee, but it bothers me far less than the exemption we are discussing.

Mr. Sutcliffe: The hon. Gentleman is saying that the consequence of his argument is that the principle would apply to the armed forces, despite his distinction that members of the armed forces are volunteers and prisoners are not.

Mr. Dismore: If the position is as my hon. Friend describes, and the Government never intended the Bill to cover deaths in custody, will he explain why the Government responded to a recommendation from my Committee on deaths in custody by referring to the possibility of a draft Bill to deal with serious management failures?

Mr. Sutcliffe: My hon. Friend cannot have it both ways. He asked us to consider things, so we considered them and came to our conclusions. He does not support our conclusion, but that does not mean that we did not consider the matter, just as we have considered suggestions throughout the Bill’s progress. Indeed, the hon. Member for Beaconsfield will acknowledge that I have not only listened to suggestions, but also made proposals in response to such considerations, so I do not accept the challenge put by my hon. Friend the Member for Hendon.

We are doing all we can to reduce deaths in custody. We are not satisfied that the measure has a role to play in prisons, as I outlined, because they are unique environments.

Mr. David Heath (Somerton and Frome) (LD): I am new to the Bill, but I have been listening carefully to the Minister’s argument. He seems constantly to return to the difficulty of the prison environment and the Government’s willingness to improve it to mitigate the
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problems. However, that seems to accept the fact that the gross breach of a duty of care is an absolute measure. It is not; it is relative to the circumstances that apply in each case. If the Prison Service is working in difficult circumstances and doing the best job it can it will not be guilty of a gross breach of a duty of care, so the Minister’s argument does not make sense.

Mr. Sutcliffe: It does make sense, and the hon. Gentleman makes the case for me when he talks about the environment in which the Prison Service operates. He is entitled to a point of view opposed to mine, as are all Members—[ Interruption.] We must agree to disagree. It is no good the hon. Member for Kingston and Surbiton (Mr. Davey) putting his head in his hands, although as he is a Liberal Democrat I can understand why he might want to. There is a difference between us.

As I said at the outset, we are trying to make sure that the Bill meets the requirements that we are all trying to achieve. Deaths in custody are unique and difficult, because of the environment, for the reasons I outlined, but there is scope in the legislation, if the Prison Service operates within the three parameters that I described.

I am happy with our position. The instruments available—public inquiries and public scrutiny of the Prison Service through independent inspectorates and by recourse to the House through questions—mean that we can, and do, respond when there are problems. It is wrong to take the focus that Opposition Members and my hon. Friend the Member for Hendon have taken, because we are the first Government to look at removing Crown immunity in those areas. That is a significant step forward and I hope that the House will support it. The subject obviously creates a great deal of emotion and I am sure that we shall return to it in future.

Mr. Davey: The Minister has just said that he is proud of the fact that the Government have introduced the Bill and that they are trying to remove various Crown immunities. As he knows, both sides of the House have congratulated the Government on that initiative, but this is Parliament’s first chance for more than a century—if not longer—to look at a Government’s proposed legislation on the matter and to try to take it further. As the Government have given us that chance, it is incumbent on Members to see whether the legislation can be improved, but I am sorry to say that the Minister’s reply to the debate so far has been less than convincing.

As my hon. Friend the Member for Somerton and Frome (Mr. Heath) said, relativity is at play here. The counsel, the court, the judge and the jury will take account of difficult circumstances and if the Government are keen to build such a requirement into the Bill, they can do so and make it absolutely clear that the jury should take account of difficult circumstances, whether they be resource constraints or the difficult people who seem to be confined at Her Majesty’s pleasure. That should not be an excuse, but a defence against a prosecution of corporate manslaughter when gross negligence has occurred.

8.45 pm

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