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Corporate Manslaughter and Corporate Homicide Bill (Programme) (No. 2)

Motion made, and Question put forthwith, pursuant to Standing Order No. 83A(7),

Question agreed to.

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Orders of the Day

Corporate Manslaughter and Corporate Homicide Bill

Lords amendments considered.

Clause 2

Meaning of “relevant duty of care”

Lords amendment: No. 2.

3.15 pm

The Parliamentary Under-Secretary of State for Justice (Mr. Gerry Sutcliffe): I beg to move, That this House disagrees with the Lords in the said amendment.

Mr. Deputy Speaker (Sir Alan Haselhurst): With this we may discuss Lords amendments Nos. 3, 5, 6 and 10 and the Government motions to disagree thereto, and Government amendment (a) in lieu of the Lords amendments.

Mr. Sutcliffe: I am proud to say that we are nearly there with the Bill and with getting a new offence of corporate manslaughter on to the statute book. I hope that for all those people who have campaigned for so long for this new offence—to whom I pay tribute today—we can ensure that the final stages of the Bill are not further delayed. We have come a long way to get here and achieved a lot in the Bill. We have a new offence of corporate manslaughter and a new basis for liability. We have extended the new offence beyond corporate bodies to unincorporated partnerships, trade unions and employer associations. With publicity orders, we have created a new form of sanction. It will be the first offence in the UK to have that new sanction. We will discuss that later this afternoon.

Also, we have taken a significant step in lifting Crown immunity. Lifting Crown immunity has ensured that the public and private sectors will be on an equal footing, in terms of corporate manslaughter, when carrying out the same activities. Workers and the workplace are comprehensively covered, as are the kinds of activities where traditionally there have been concerns about health and safety in the private sector: construction, maintenance, the supply of goods, and the use of plant and vehicles. However, lifting Crown immunity raises difficult issues in relation to other types of activity performed by the state that the private sector does not do, or does only on behalf of the state. The issues include where the line between a Government policy and its implementation is, and whether the effect of imposing liability for the offence would cut across some of the aims of the activities.

I am talking about areas that are unique to Government or require specific statutory powers to be carried out and for which other forms of investigation and accountability exist. They are also areas where any deaths raise questions that go beyond the general remit of health and safety, which is what the Bill is primarily aimed at. Both Houses have supported us in the principle of exempting some such areas, including the police and the armed forces when engaged in operational activities, and the emergency services when responding to life-threatening situations.

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Mr. Edward Garnier (Harborough) (Con): Can the Minister tell the House why the argument that he is putting forward is not in conflict with his Government’s policy of introducing the Human Rights Act 1998?

Mr. Sutcliffe: I will come on to the issues around the Human Rights Act. Clearly, we believe that by lifting Crown immunity in the way that we have, we have taken a considerable step forward in health and safety legislation. I will return to the point that the hon. and learned Gentleman raises a little later.

Mr. Garnier: Can I press the Minister further on that?

Mr. Sutcliffe: You can try.

Mr. Garnier: During the passage of the Human Rights Bill in this House—the Minister may well have taken part in those debates; I certainly did—it was pointed out to the Government that passing the Act would lead to foreseeable and obvious constitutional collision points between the courts and the Government. That is coming to pass. Surely the Government have thought about this matter. They have had eight years or so since the 1998 Act to think about it. Why are they pursuing the argument that they are now pursuing?

Mr. Sutcliffe: The hon. and learned Gentleman is trying to take me down an avenue that I do not wish to go down this afternoon. He will know that several discussions are taking place about relationships with the judiciary. I am sure that we will return to that issue in due course.

Mr. Andrew Dismore (Hendon) (Lab): I am sure that my hon. Friend is aware that my Committee, like other Select Committees, has produced several reports complimenting the Government on the principle of introducing the Bill, which we regard as a key human rights achievement.

Mr. Sutcliffe: I am grateful to my hon. Friend, who chairs the Joint Committee on Human Rights. I know that its deliberations have been welcomed, as has its support for several aspects of the Bill.

Let me return to the key aspect of the debate: the way in which custody should fit into the scheme. We think that the picture is complex, so it would be useful at this point to consider what is meant by custody. It can cover a spectrum of activities, ranging from police arrest and short-term detention followed by release back on to the street, to the lifelong detention and management of serious offenders. Those very different activities cannot all be treated the same. Some of the activities that could fall into the scope of custody border on those that the House and the other place have agreed should not be covered by the Bill. For example, arrest and police detention are closely linked to policing operations.

Mr. Dominic Grieve (Beaconsfield) (Con): I am listening carefully to the Minister, but I find that aspect of his exposé quite astonishing. Custody is a clearly defined concept: when a person is in the custody—that also implies the care and control—of another person.
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It is entirely distinct from police operations before a person is taken into custody. I might try to intervene a little later as the Minister continues his speech, but it seems that he is about to make a very bad point.

Mr. Sutcliffe: It is for the hon. Gentleman to decide whether I make a bad or a good point. I am trying to explain our view of the situation surrounding custody in the context of the Bill. I am sure that he will accept that the Government have moved a long way to try to resolve the issue. I will develop my theme further, and I am sure that if he thinks the bad points are getting worse he will intervene again. However, I think that there is a distinction to be made in relation to the police.

There are questions about whether applying the offence to custody would have unintended and unwanted consequences in the form of risk aversion, which we discussed in Committee. We have always argued that risk aversion can be greater in the public sector, where there is not the drive of profit to balance against it. That is especially true in high-risk areas, of which custody is undoubtedly one. Would applying the offence mean, for example, that the police would be less likely to pick up a drunk lying in the street—perhaps for that person’s own good—given that there would be no liability until the person were held in a cell?

Finally, there is a point that has been made several times while discussing this subject: Government policy is fundamentally linked to the custodial environment. Separating policy from its implementation is very difficult when the two are so closely aligned, such as in the case of the provision of resources to prisons to make cells safer and the management of those resources locally. A question on whether sufficient money had been spent on a particular cell would go right back to the decision taken in government about the amount of resources that should have been allocated. Questions about the way in which resources were allocated and whether they were sufficient are not for the courts to consider. The recommendations from the Joint Committee on Human Rights included increasing funding throughout the prison estate. Although it is right for the Joint Committee to make such recommendations—that is its role—it is certainly not the role of the courts to decide how taxpayers’ money should be spent.

Mr. Edward Davey (Kingston and Surbiton) (LD): When we are considering custody, do we not want the authorities to be risk averse? If someone is at risk of committing suicide in prison, surely we want to ensure that the governor and his or her staff ensure that that person does not commit suicide, so they are more risk averse. Surely the Minister does not want people in charge of custody to be more risky.

Mr. Sutcliffe: Certainly not. We actively try to avoid deaths in custody. I will speak a little later about how we intend to improve the situation. However, there could be an opportunity for risk aversion. The hon. Gentleman was not present at the time, but I remember hon. Members on both sides of the Committee giving examples in which there was a possibility of people becoming risk averse. I do not think that the story
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about the drunk in the street is something that could not possibly happen. People would think twice about their position.

Mr. Grieve: The Minister squarely raised a point about cost. My understanding, as it was in Committee—I have read carefully what the Attorney-General said in another place—is that if someone dies in a cell fire in a prison because the fire precautions in the cell were insufficient, liability for prosecution against the Home Office could lie. That is a clear example of cost coming into the equation. If cost can come into that equation, why is there anxiety about cost in the case of someone being able to commit suicide in a prison cell because there was inadequate supervision due to cost factors? What is the distinction between the two cases?

Mr. Sutcliffe: We are concerned about public policy issues relating to the distribution of resources to particular services. The hon. Members for Beaconsfield (Mr. Grieve) and for Kingston and Surbiton (Mr. Davey) should allow me to continue my speech, because I hope to allay some of their fears by pointing out the way in which the Government are trying to respond to some of the concerns about deaths in custody that were raised in the other place and in Committee.

We have listened to the serious concerns expressed both in the House and the other place. While we do not believe that it is right for custody to be covered by the offence, we have tried to respond in two other ways to the strength of concern about the way in which the Government are tackling deaths in custody.

First, we want to strengthen the arrangements for the independent investigation of deaths in custody. Hon. Members will know of the Independent Police Complaints Commission and the inquest procedure, but we have also decided to put the prisons and probation ombudsman on a statutory footing. The ombudsman has investigated all deaths in prisons, young offender institutions and immigration detention centres since 2004. Since last year, he has investigated those in secure training centres. He and his office have a detailed knowledge of custodial practice and policies. It has been the Government’s intention to put the appointment on a statutory footing since 2003. Again, that is a recommendation of the Joint Committee on Human Rights.

Legislation will place a formal duty on the ombudsman to examine all deaths under his remit. It will allow him to decide the scope and procedures to be adopted in investigations. It will also give him new High Court powers to obtain evidence and to allow him to work with other ombudsmen, when appropriate. The ombudsman’s post is independent of the organisations that he investigates, but the Government recognise that putting the role on a statutory footing would remove any perception that he was not independent of the Government. Indeed, he would be appointed by Her Majesty.

Mr. Davey: Will the Minister confirm that that statutory footing will not give the ombudsman the power to establish liability?

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Mr. Sutcliffe: Again, we will want to examine the detail of the role and responsibilities when we consider the next appropriate legislative vehicle, in line with the Joint Committee’s recommendations. I do not think that that will be the outcome, but I do not want to pre-empt the discussions that will have to take place about what the statutory powers will be.

Jeremy Wright (Rugby and Kenilworth) (Con): The Minister’s preference is clearly a measure that will allow the Secretary of State to make regulations to include custody in the appropriate duties of care at a later date. Either now or later in his speech, will he explain to the House why including custody might be appropriate in the future, but would not be appropriate now?

Mr. Sutcliffe: I hope to do that. I am grateful for that intervention and the hon. Gentleman’s involvement throughout the Bill’s passage. I am trying to express the fact that we think that the role of the prisons and probation ombudsman will need time to develop in the way in which we have outlined. We will deliver the new role through the next appropriate legislative vehicle.

Secondly, in response to the Lords amendments and the hope expressed in the Lords that applying the offence to deaths in custody would reduce such deaths, we have decided to review the role of the forum for preventing deaths in custody. That independently chaired forum, on which Baroness Stern sits as an observer from the Joint Committee on Human Rights, brings together practitioner and inspectorial professionals from across the relevant services involved in detention for which the Ministry of Justice, Home Office and Department of Health are responsible. The forum’s remit is to compare and contrast approaches, and to identify and draw attention to good practice and issues that require further attention from the services or from Ministers.

The forum is working well and is meeting many of the criteria that the Joint Committee set out in its recommendations for a taskforce. I believe that it has great potential to bring about real changes and improvements to safety in custody, but I acknowledge that there is room for improvement of the forum; we need to give it greater autonomy from Government, and increase its capacity for sharing information and conducting research. We will review the forum, but it is too early to say exactly how it may change. However, we will consider issues such as resourcing, capacity and the interaction between Ministers and the forum. In terms of time scale, we have already started to consider how we might strengthen the forum.

3.30 pm

I hope that the two measures that I have mentioned demonstrate our strong commitment to reducing deaths in custody and to ensuring that each death receives proper investigation. However, as the hon. Member for Rugby and Kenilworth (Jeremy Wright) pointed out, we are also proposing amendments in lieu of the Lords amendments. By doing that, we are acknowledging the strength of feeling expressed in Parliament about duties to people in custody, and concerns about the fact that those duties were not included in the Bill. We propose giving the Secretary of
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State power to amend the Bill by affirmative resolution to increase the categories of duty of care. Although the power that we are proposing does not bring custody into the Bill, it leaves the door open to doing so, without primary legislation, in future.

Mr. Chris Mullin (Sunderland, South) (Lab): I welcome the Government’s considerable movement on the issue. Will the Minister give us some idea of the timetable that he has in mind? When will that day dawn?

Mr. Sutcliffe: My response to my hon. Friend, and to the other hon. Members who have asked, “Why are you waiting?” is that it is important that people recognise how far the Government have moved on the issue, and I am sure that they will. Previously, we did not want to deal with deaths in custody in the Bill, for reasons that we outlined in the other place and in our discussions in Committee. It will take time to develop the role of the prisons and probation ombudsman, and to strengthen the forum for preventing deaths in custody. If those bodies work well, there may not be any need to put the offence in the Bill, but if they do not, the power that I mentioned is in place, and a measure can be introduced through the affirmative procedure. We hope that that is enough to satisfy hon. Members, and we hope that they acknowledge and accept that the Government have moved a tremendous distance.

Mr. Garnier: If the Minister is right in his expectations, there probably will not be any prosecutions.

Mr. Sutcliffe: The hon. and learned Gentleman will have read the Hansard report in which I said that I hope that the legislation is never used. We do not want prosecutions; we want the corporate bodies to make sure that their policies are strong enough to prevent any of the offences from taking place, so I wholeheartedly agree with him on that.

James Duddridge (Rochford and Southend, East) (Con) rose—

Mr. Sutcliffe: I will give way to the hon. Gentleman, but then I need to make progress.

James Duddridge: I thank the Minister for giving way. Will he give an indication of when the review might take place? Does he anticipate that it will be after three years, or five years? It is important for him to state that now, and to state the nature of that review; otherwise, the date might simply be pushed further and further back by successive Ministers.

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