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Mr. Sutcliffe:
I hope that that is not the case. We are trying to meet the requirements placed on us in the discussions and debates in both Houses, and we are trying to accommodate the concerns that have been raised, recognising that the Government’s first viewpoint was that provisions on deaths in custody should not be included in the Bill. I hope that, through the forum, we can make great progress fairly quickly. We will have to find the appropriate legislation to deal with the ombudsman, and the development of those processes will lead us to consider whether to use the affirmative procedure in
future. As I said to the hon. and learned Member for Harborough (Mr. Garnier), I hope that we never have to use the legislation, because the aim behind the Bill is to ensure that corporate bodies in the public and private sectors have policies in place.
Mr. Grieve: It would be helpful to have some clarification. When the Minister wrote to explain what the Government were seeking to do, he said that they would need to take into account how the legislation works in practice. I understood that to mean the legislation that we are enacting, without the bit on deaths in custody, which we are going to take out. I must say that I was a bit surprised by what he said, because when we debated the issue in Committee, it was emphasised to us that we could not compare the other aspects of the legislation to the issue of deaths in custody, because that was a completely different matter. Now I detect that the Minister is saying that the Government are really waiting to see whether there is any need to include provisions on death in custody, because if there are not too many deaths in custody, they might get away with not putting provisions on death in custody on the statute book. That is a slightly different thing. Will the Minister clear up that aspect of the issue?
Mr. Sutcliffe: That certainly is not the case. The debate on the Bill has been conducted in a generous spirit and I hope hon. Members will appreciate that we have tried to meet the concerns that have been expressed. That is reflected in the number of amendments that the Government have accepted here and in another place. We are opening the door because we hear the concerns that have been raised with us. We want to make sure, through the committees and other bodies that we set up, that we focus on deaths in custody and that there is full examination of each and every one of those tragic deaths, but we want to do that properly. That depends on the enactment of the Bill and how the other two situations develop.
Fiona Mactaggart (Slough) (Lab): I am glad that the Government are contemplating including custody in the offence; my anxiety is that they have form in that respect. For example, they promised that the prisons ombudsman would be put on a statutory footing. Will the Minister remind the House when that promise was first made and what has happened since then? He will understand that Members are anxious about when the proposed power might be used.
Mr. Sutcliffe: My hon. Friend said that the Government had form. She was a member of the Government at the time she referred to, in a similar role to my good self. The Joint Committee on Human Rights suggested in 2003 that statutory powers should be given to the PPO. Ministers come and go, and I can only repeat that I and the Government have listened to what has been said. Deaths in custody are tragic events and we need to ensure that we prevent them whenever we can, and that when something has gone wrong we determine what has happened.
I understand why hon. Members are trying to push me into announcing a timetable, but they should reciprocate the generosity that I have shown in tabling the amendments. I see hon. Members shaking their
heads, so I clearly will not convince the Opposition. However, I hope my hon. Friends recognise how much progress has been made.
The power will allow flexibility to extend the offence to duties or to people in all forms of custody and detention. Whether and when the power is to be exercised will need to be considered in light of the other steps that we are taking. We will need to see how the new offence works in practice, the impact of putting the prisons and probation ombudsman on a statutory footing, and how the reformed forum for preventing deaths in custody works, and it will depend on whether the complexities that I set out earlier can be resolved. All these aspects need to be addressed.
What we are proposing is a significant step in opening the way to extending the offence, if that is considered right in due course. For the present, for the reasons that I have outlined, we remain of the view that the offence should not apply to custody in the blanket way that it would were the Lords amendments accepted.
When we last discussed the matter in the House, there was firm support for the Government’s position. We have listened to the strong messages from those in favour of extending the provisions of the Bill to custody, and we have come a long way towards meeting those concerns. We have accepted the principle that the new offence may extend to custody at some time in the future.
I have been pleased by the way that we have been able to work together in the House and the other place on this important legislation. As I said at the start, we have come a long way from our starting point and it is right that the Bill has received constructive scrutiny, first from the Joint Scrutiny Committee and then during its passage through Parliament. I hope that hon. Members and those in the other place will be willing to compromise on this final issue and accept the amendment in lieu.
Mr. Grieve: Throughout these proceedings, I have always been absolutely satisfied as to the sincerity of the Minister’s explanations, and I am grateful to him for the further minor concession that has been extracted from the Government. I note that last week when I saw the Minister there was mention of putting only the ombudsman on a statutory footing. I rejected that out of hand, so along with other hon. Members I suppose that I can take some credit for the further movement by the Minister towards having a power that can be enacted by statutory instrument. However, when one looks at the overall picture, one sees that it remains woefully inadequate, and I want to explain why.
We have conducted this debate with some good humour, which I do not wish to depart from, but the Minister was right when he said that this was a serious topic. We are talking about the deaths of people in custody. I think I am right in saying that between 1995 and 2005, nearly 2,000 people died in custody. Of course, the vast majority of those died by their own hand, and in many cases there was nothing that even the maximum amount of care or supervision would ever have done to prevent those tragedies from happening. But in that period, 10 verdicts of unlawful killing were recorded by inquests—juries—in respect of people who died in custody, which seems to indicate
that they felt that in those cases the rule of law had been seriously undermined, and anecdotally there is ample evidence that other cases of those 2,000 give rise to really serious disquiet, and a number have been highlighted.
There was the case of Zahid Mubarek, who died in custody at Feltham having been placed in a cell with a person who was well known to the prison officers to be in a state of psychosis and to have psychopathic tendencies and racist instincts. A current case concerning a man called Joseph Scholes has still not been resolved and I will not comment further on it. Each one of those needed legal challenges by the families even to obtain an inquiry into what happened. In the case of Zahid Mubarek, the conclusions of the inquiry, in terms of attitudes, practices and management at the young offenders institution, were truly damning.
It is in the light of that, and in the light of the fact that, as I said in an intervention on the Minister, a person who has been deprived of their liberty for whatever reason is under both the control of the person who deprives them of their liberty, but also, in a very special sense, the care of the person who deprives them of their liberty, the House has to consider whether it is right that deaths in custody should be included in the framework of corporate manslaughter.
The Government, very properly, in raising Crown immunity have conceded that Crown organisations—Government Departments—should no longer have the previous blanket exemptions. That is a major concession that is fundamentally right. As I highlighted to the Minister in my intervention, in the case of prisoners who died in a fire in a prison because there had been insufficient investment in fire protection equipment—a clear issue of cost, management or policy—or because the extinguishers had not been checked, the Home Office would be liable to prosecution under this legislation. That is another major concession, which is absolutely proper.
Let us consider where one might feel that the issue of care is most obvious, namely in regard to the welfare of people in detention: making sure that they do not die by their own hand, wherever possible, or by the hand of another inmate—a real possibility, but one which management systems are in place to try to ensure does not happen. In those two key areas, the Government have simply shown themselves unwilling to budge until the 11th hour and 59th minute. We now have a concession which, although welcome—like any concession—does not really take us very much further.
Mr. Garnier:
Does my hon. Friend agree that the Government’s arguments stand at odds with our own experience? There have been a number of cases since 1998 where patients or patients’ families, or those supporting patients, have sued the NHS, in whichever guise it happens to be, in relation to the giving of treatment, the withdrawal of treatment or the refusal to give treatment to a particular patient. Clearly, behind those cases lies the question of Government resources—public resources—and their allocation by that particular part of the NHS. The court decides, on the basis of the evidence before it, whether this is an incursion into some part of public policy which the courts do not get involved in, or it decides, on the facts of the case before it, that it can make or withhold an
order. Surely the principle is precisely the same in this case and the Minister is at odds with his own Government’s policy.
3.45 pm
Mr. Grieve: I entirely agree with my hon. and learned Friend. The irony of the situation is that health trusts will be covered by the legislation. Generally speaking, when one thinks of health trusts one thinks of the possibility of patients being killed through gross negligence in hospitals. However, in the context of mental hospitals, there is also the possibility that one patient might be killed by another, in circumstances that are so similar to those which are, I think, the nub of the Government’s concerns—I keep trying to understand the nature of their anxiety—as to be identical. The Government are, very properly, willing to make the concession in that context but unwilling to budge in the context of custody within prison cells or police cells or any other form of lawful custody. I find a rather worrying irrationality in that.
I shall wait with interest to hear from the hon. Member for Hendon (Mr. Dismore), whose Committee—the Joint Committee on Human Rights—reported on this matter. In reviewing why the Government were unwilling to make this provision, it stated, at paragraph 2.13 of its report:
“Having considered the Government’s arguments, we therefore remain of the view expressed in our earlier report, that the exclusion from the scope of the new offence of deaths in custody and other deaths caused by gross management failure in the public sector where no individual can be proved to be responsible is likely to lead to the UK being found to be in breach of its positive obligation to protect life under Article 2 ECHR.”
The Government have not dealt with that. If that is the Committee’s view—and it is advised by learned counsel in its deliberations—that must give rise to the prospect that the longer we go on having an architecture that is only partial, not complete, the greater will be the risk of an article 2 challenge if there is a death in custody. That will leave the Government facing embarrassment. It will also leave the Bill found wanting, because it provides a special and particular protection to one state activity that is not based, as in some of the other exemptions such as defence, on the inherent risks that people have to run, but on the fact that, for whatever reason, the state feels that it would be too difficult to extend this protection to individuals in lawful custody. I must say that I find that rather abhorrent, because it is to such people—those who are being deprived of their liberty, often for good reason—that we have a special responsibility.
There has been the nastiest sense—not from the Minister, I might say, but certainly from the Home Secretary on Report—that it was thought to be beneath Parliament’s area of responsibility to pay such attention to such individuals. I was rather hoping that as the Minister’s responsibilities have been transferred from one master to another, we might see a new ethos prevailing. However, I regret to say that the baleful influence of the Home Secretary continues to contaminate Government in a variety of ways, whether in sudden explosions against the European convention
on human rights—in Venice of all places; I would have thought that that rather romantic environment might mollify his behaviour—or in the extent to which he still seems to be exercising control over the Ministry of Justice even though he no longer controls criminal justice policy. In view of some of the answers to parliamentary questions about who is responsible for what that I have received in the past few days, I am bound to say that a certain lack of clarity remains as to where responsibilities lie.
When the matter was considered in another place and the amendments were accepted by overwhelming votes by the standards of the House of Lords—the majority was almost 100, with many peers who take the Government Whip supporting the inclusion of the protection so that corporate manslaughter would apply in relation to individuals in custody—Lord Ramsbotham made a powerful, impassioned speech that was nevertheless of the utmost rationality. He made the point that the problem is not policy but good management. The Under-Secretary appears to be undertaking an exercise in courteous weaving to get himself off that spike.
Nobody expects the impossible. People will continue to die in custody and it will be no one’s fault, but the failings have not been of policy. It is possible that the Home Secretary has an attitude that he has kept secret from the House but I would not accuse him of that. I cannot envisage a Minister or policy maker enacting or ignoring policies that will tend to lead to someone dying in custody. I have a higher opinion of the Government—of any Government—than that.
We are therefore considering management. Lord Ramsbotham said that, and he is right. The Under-Secretary must deal with the question of why he appears ready to allow for covering up and protecting those who manage processes badly in the custodial environment. That reflects badly on us all.
Mr. Mullin: May we take it from the tone of the hon. Gentleman’s remarks that a Conservative Government who found that the matter had not been tackled would quickly attend to it?
Mr. Grieve: Yes—undoubtedly. On Report, I made the point that I must face up to the fact that, were I a Minister of the Crown, we would be in government. I conceded that, were it my lot to be a Home Office Minister, having enacted the legislation I might feel that it was hanging over me like a sword of Damocles. However, I would have to put up with that. Ministers have to put up with all sorts of swords of Damocles hanging over them, including, in the case of the Under-Secretary, those hung by the Home Secretary. It is part of a Minister’s lot. If Ministers have to resign because an especially serious scandal occurs, we must live with that, too.
The architecture of the Bill does not provide for personal liability. The Under-Secretary and I—indeed, most members of the Committee—agreed with that. From that point of view, the measure is sensible, but it is therefore all the more nonsensical not to include deaths in custody, which are a matter of genuine public concern.
Let us consider the Government’s alternative. They appear to offer us a wing and a prayer. The optimistic
way of viewing it is that, the moment the Home Secretary is removed from the Cabinet, the incubus that prevents the provision that we are considering from being accepted will be lifted. We might therefore expect the statutory instrument that we all want sometime in the autumn.
However, the Under-Secretary, with his customary courtesy, chose his words carefully. Listening to them, it appeared that we are considering a long-term hope. I was troubled because I got the impression from the Under-Secretary’s letter that we were examining the way in which the measure would work in practice. However, his comments today seemed to go beyond that. He almost appeared to be saying, “See how well we can do without the legislation”, or the bit of it that we are discussing. That is inadequate.
Perhaps I did not give Labour Back Benchers sufficient credit earlier. The Government have been required to change their mind at least partly due to Labour Back Benchers expressing their great concern about the matter. That, coupled with events in the other place, is the reality because the Government have a substantial majority. Those Back Benchers who may be wooed by this proposal should think how it will look in the future. I hope that in five years’ time, we will have a Conservative Government who will do what is needed, but if Labour Members’ expectations are fulfilled and there is another Labour Government for a long time to come, I have a nasty feeling that we could be waiting a very long time indeed before the statutory instrument is enacted.
James Duddridge: When the statutory instrument is brought forward under a Conservative Government, will the definition of custody be similar to that proposed for clause 2? That is to say, will it include, as well as prisons,
“secure mental health facilities, secure children’s homes, secure training centres, immigration removal centres”
Mr. Grieve: It is absolutely vital that it should. My hon. Friend is quite right to raise that issue. I have to say that one of my anxieties about the Government’s offering is that because the statutory instrument will be a complete redrafting of this part of the Bill—the Government want to delete the Lords amendments as they have come back from the other place—those additional provisions might easily not be in it. Furthermore, because a statutory instrument is not amendable, the House would be presented with a take-all or leave-all proposal. I simply say to any hon. Members who may be tempted by this compromise that it offers very little in reality. The most that can be said for it is that it offers the opportunity of a shortcut rather than full primary legislation—but with all the drawbacks of such shortcuts, which do not always deliver what individuals might reasonably expect.
The other place was very careful in the drafting of its amendments, which are comprehensive. Of course secure children’s accommodation and secure mental health places must be included. Anyone in custody should be covered by the legislation, which is what I believe Parliament really wants to see. I am only sorry that we seem to be unable to persuade the Government to do the right thing.
I do not intend to take up any more of the House’s time. This is a discrete issue but an important one. Conservative Members cannot accept the Government’s offering. We may not vote against every particular part, but we will vote against the Government’s motion relating to clause 2. That will highlight the fact that we wish to keep the Bill in the form it assumes as it comes back from the other place. I strongly urge hon. Members to look to their consciences on this matter, because the House has an opportunity to do some good. The Minister knows that although I have been properly enthusiastic about some aspects of the Bill, I have pointed out its shortcomings. It is probably not everything that everybody hoped it would be. In this particular area, however, we really have an opportunity to make a difference. We should make that difference and I urge the House to persuade the Government to make it by voting to retain the Bill as it has come back to us from the other place.
Mr. Dismore: I say to the Minister that I acknowledge that the Government have moved quite a long way—certainly in comparison with the Bill on Report, when we heard a rather acrimonious intervention from the Home Secretary—and I thank him for the courteous way in which he has engaged with me and other Government Members on many occasions in order to move this particular issue forward. I believe that he has searched constructively to find a compromise that we can all live with and it is important to note that the Government’s alternative concedes the basic principle directly in the Bill, which is a major step that we all welcome.
I have been campaigning for a corporate manslaughter Bill for all but 20 years, ever since I was professionally involved in the King’s Cross fire, representing victims and their families. When I started that campaign, I did not think that I would still be arguing about this particular issue now, but it is a very significant matter and probably the only outstanding point that we need to argue about in relation to the Bill.
I share the concern of others about some of the shortcomings in the Bill as a whole, but we are making some progress here. The key is to think about the Bill’s purpose. As the Minister explained, we hope that it will never need to be used, because if it is used, it reveals a failure, highlighting an avoidable death that has come about as a result of gross negligence. The Bill is all about encouraging people to take steps to ensure that such deaths do not occur when they could be prevented.
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