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The hon. Member for Beaconsfield (Mr. Grieve) challenged me over the matter of article 2. He made a strong point, but the real question is whether the Government’s package as presented today goes some way towards meeting their obligation under article 2, which is not to bring a prosecution but to protect the right to life of citizens, including those in custody. If there has been a serious breach, there should be a prosecution of those involved or, in the case of an organisation, of the organisation concerned. The hon. Gentleman made the fair point that the Government might still be vulnerable to an article 2 case in the European Court or under the Human Rights Act 1998 in the domestic courts. I think, however, that what is going on here will make the Government a little less
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vulnerable. The key question relates to when the measure would be brought into effect, and I will come back to that point later.

The fact remains that, since the Joint Committee on Human Rights expressed its views in its second report on the Bill, things have moved on through the package that the Government are introducing today. We are trying to protect vulnerable people, by one means or another, from dying in custody. The first part of the three-element package is the decision to put the prisons and probation ombudsman on a statutory footing, which is welcome. The ombudsman provides an independent focus for investigations into deaths and a proper level of scrutiny, as well as facilitating the involvement of the victim’s family. They can also create a degree of public confidence that an inquiry carried out within the system could not.

It is clear that the ombudsman should be placed on a statutory footing; this has been the Government’s position for some time, as my hon. Friend the Minister mentioned earlier. The provision was supposed to be in the 2005 Bill, which fell because of the general election. On 9 February, Baroness Scotland wrote to me in my capacity as Chair of the Joint Committee, saying that the Government wanted to introduce the measure at the most appropriate opportunity. The ombudsman has been investigating deaths in custody since April 2004 and has gained some expertise in the field. However, if we are to satisfy the other place, we need to establish some time frames for the proposals. When does my hon. Friend the Minister envisage that “appropriate opportunity” arising? If it does not involve a Bill in the present Session, I hope that one can be introduced in the next Session, after the Queen’s Speech. We need to make rapid progress on this matter.

My hon. Friend mentioned the forum on deaths in custody, which was the subject of one of the key recommendations of the Joint Committee’s third report of the 2004-05 Session. We published a progress report on the subject in our seventh report of the 2006-07 Session. I pay tribute to Baroness Stern, a member of my Committee and of the forum, not only for her work on the forum but for her stalwart campaigning on deaths in custody over many years.

The forum comprises 15 different organisations and it is welcome that the people involved have been brought together. I also welcome the Government’s proposal that the forum should be strengthened. The real question involves the ways in which that might happen. The Committee received a note from the chair of the forum, John Wadham, with the Government’s response to the progress report that we published in March this year. He raised a number of issues, and I would like to hear my hon. Friend the Minister’s response to them.

The first relates to the coroners rules. My hon. Friend has not said anything about those rules, but now that he is in the Ministry of Justice that matter comes under his new responsibilities. I hope that he will be able to tell the House whether the powers that need to be changed will be changed to require responses from organisations to coroners’ recommendations. That is long overdue, and if we cannot have a new draft coroners Bill for some time—which is clearly the
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case—the rules will need to be amended, as recommended by the chair of the forum.

Further issues identified by the forum include the prisoner escort record, a key handover mechanism that needs to be strengthened, and access to the police national computer by the Prison Service as part of its risk assessment activities in identifying prisoners at risk and taking steps accordingly. Those are all aspects of good practice that need to be dealt with. Perhaps my hon. Friend will confirm that those issues will be looked at.

On a broader front, the chair of the forum, Mr. Wadham, makes the point clearly that the Government must ensure that the forum

not just talk—

In particular, the forum should be able

Mr. Wadham makes the particular point that this ability could be

I presume that he does not consider himself to be formally in that position. We are looking for those elements to be part of the reform of the forum, and perhaps my hon. Friend the Minister will confirm that he has those sorts of things in mind. More resources, more capacity and more interaction with Ministers are all welcome, as has been mentioned, but the forum has come up with those specific points so far.

On the amendments, it is important that the Government have considered the principle, but I am concerned about the width of the discretion and the time frame. I would have preferred “shall” to “may”, as that would have imposed a stronger obligation on the Minister to keep the position under review and to act on such reviews. Inevitably, there are concerns about the width of the discretion in specifying the forms of custody, the description of the premises, the circumstances to which it applies and exceptions to the rules. I hope that my hon. Friend will flesh out the Government’s thinking on that.

The key issue must be the timetable. Is it the intention that the provision should come into effect once the additional prison places start to come on-stream in larger numbers? One of the concerns is about prison overcrowding. Is it the intention to enact the measure within a timetable that shows the effect of the other reforms proposed in relation to the forum, the ombudsman and the coroner? If my hon. Friend is to satisfy the House, and convince their lordships that they should accept his proposals in lieu of their own, he will need to go a little further.

Mr. Davey: Can the hon. Gentleman think of a good reason to wait for the measure to be put into legislation?

Mr. Dismore: Some practicalities are involved. Everyone in the House would concede that the Prison Service is in a state of flux—to put it neutrally—given some of the problems that it is experiencing. Some might say that that makes it even more important that the law comes into effect more promptly. However, if
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our intention is not to witch-hunt but to put right the Prison Service and stop such deaths, which is the purpose of the Bill, it is important that the ombudsman has a statutory footing and is able to investigate and make recommendations, that there are proper responses to coroners’ recommendations on deaths in custody, and that the forum has the teeth that it needs to make real progress. I hope that that will happen quickly.

If the measures are not brought into effect, the Government remain vulnerable to an article 2 challenge. I am prepared to give the Government a little leeway and the benefit of the doubt, but, if there were a challenge, I could not say whether the courts would do the same. My hon. Friend needs to act quickly on his proposed measures if he is to satisfy not just this House but the other place.

Jeremy Wright: Is it not wholly illogical to argue, as the hon. Gentleman appears to be doing, that if further protections for those in custody are coming along later—such as those that he has set out—it is sensible to wait until then before we give those in custody the protection that they would otherwise have if we implemented the amendments that the other place has sent back?

Mr. Dismore: No, it is not illogical. As I have readily conceded, the article 2 problem remains for the Government. In relation to trying to deal with such issues promptly, that is the outstanding lever on the Government. There is no point in starting prosecutions immediately, as that would take time and would not in itself lever in change. The purpose of the Bill is to act as a preventive measure, not to start bringing prosecutions. If our purpose is to try to prevent deaths in custody, the Government have come up with a clear package intended to achieve that objective. In the last recorded year, for example, we saw a reduction in suicides of about 14 per cent.—60-odd people still died, which is far too many, and there were other deaths too. We need to give the Government the opportunity to bring the measures into effect rapidly and then, we hope, we will start to see a significant reduction.

4 pm

As was conceded on Report and today, the number of cases to which the Bill would apply is relatively small. On average, I think, a prisoner currently dies in violent circumstances virtually every other day, although that number is coming down. The hon. Member for Beaconsfield said that over the past few years there had been about 10 instances in which there might have been a prima facie case, and I think that number is probably about right. However, we are trying to deal with the problems involved in not just those 10 prima facie cases but the 200 or so other cases that would not be caught by the Bill. If what the Government are presenting today is a package of measures that would deal not only with the gross negligence cases but, more important, with all deaths in custody, I think we are seeing some real progress.

Mr. Sutcliffe: My hon. Friend has put his finger on the Government’s reason for not wanting the Bill to be used in the way that has been suggested. The existing measures relating to deaths in custody are important to
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us, as are the existing measures to develop and strengthen the forum for preventing deaths in custody and powers for the prisons and probation ombudsman. We take this issue very seriously, but, as my hon. Friend said at the outset, the Bill did not seem to us to be an appropriate framework for such a measure. In my present role I am concerned about all deaths in custody, and I want to ensure that we do the maximum to prevent them.

Mr. Dismore: I am grateful to my hon. Friend. I know that others wish to speak, and I have taken a number of interventions, so I shall end by saying that the Bill is intended as a preventive measure. As I have said, the article 2 problem will remain in the back pocket if the Bill and my hon. Friend’s proposals do not fly, but I think he has done enough to satisfy me and most members of my Committee, although obviously I cannot speak for them; they will have to speak for themselves. If my hon. Friend is to satisfy the other place, however, he will have to come up with as detailed a time frame as possible when he responds to the debate.

Mr. Davey: I think it is fair to say that the hon. Member for Hendon (Mr. Dismore) and his Committee have been exceedingly influential in putting pressure on the Government. The hon. Gentleman deserves praise from those in all parts of the House for the work that he and his colleagues have done. There was some dispute with Government lawyers over certain details of the Committee’s analysis of how the European convention applies to the Bill, but I believe that the Committee came out on top. The hon. Gentleman also deserves credit for the way in which he has dealt with all the other principles that are at stake.

Although I understand why the hon. Gentleman wants to give the Government the benefit of the doubt today, I think that he is wrong to let them off the hook at this juncture. It is welcome that they have conceded the principle, but there does not seem to be any justification for not going ahead now. Surely that would be entirely in line with all the other policies articulated by both the Minister and the hon. Gentleman.

No one here opposes the idea of putting the prisons and probation ombudsman on a statutory footing. That has long been promised and has not yet been delivered, but it will be good when it is delivered. The forum for preventing deaths in custody appears to be doing a good job, although I note from a visit to its website earlier today that the most recent reports of its deliberations date back to June last year. The website needs to be updated slightly, so that we can see the good work that the forum has been doing. However, the hon. Gentleman’s Committee has reported on it, and a report from John Wadham shows some of the excellent work that is being done on detailed issues such as the prisoner escort record. The record is a key practical measure, which states when a prisoner is being moved from one agency to another so that if that prisoner has any vulnerabilities, the information is properly shared.

The Government deserve credit for such detailed work, but I do not see why that should prevent us from making progress on this particular issue. The Government seem to have put themselves in a better
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position to ensure that the Bill goes with the flow of the proposal, and I do not see any contradiction between the two.

Stewart Hosie (Dundee, East) (SNP): I concede that the practical measures are welcome and that custody is no longer an issue: it could and may be included at some point. However, is not the hub of the matter the question of principle over utility? For those in positions of power or responsibility there may not be equality under the law, while for those with a duty of care there may not be equal protection under the law unless custody is included at this point.

Mr. Davey: I am grateful for that intervention because I totally agree. The hon. Gentleman was, I think, echoing a speech by Lord Ramsbotham which he began by stating those two key principles. The hon. Member for Hendon, who chairs the Joint Committee on Human Rights, often focuses on principles, and the House has a duty to do so, too.

4.15 pm

Lord Ramsbotham talked about equality before the law. Why should public bodies be less accountable before the courts than private bodies? I can see no good reason for that. If I were a serving prison governor or chief constable, I would consider that to be a slight insult. I would not want special protection or special privileges. I would want to assert that I could run my service and do my job to the same standards as anyone else. I would want to meet the highest standards. There should be no fear for them in this proposed legislation. They do not want to be above the law as it applies to other bodies. Equality before the law is a clear legal principle which should be applied.

Mr. Sutcliffe: Has the hon. Gentleman seen the letters from the British Transport police and several chief constables who have concerns about this issue from the perspective of risk aversion? This case is not being made by the Government; it is substantiated by people working on the front line.

Mr. Davey: Former chief constables in the other place argued contrary to that. I am sure that the Minister will concede that if we were to gather around one table all the chief constables who are members of the Association of Chief Police Officers different views would be expressed.

There is another key legal principle: equal protection under the law. Why should prisoners have less right to life than other people? Why should prisoners on remand, who have not been found guilty of any crime, have less right to life? Is it less serious if a prisoner rather than someone who is not a prisoner is killed as a result of grossly negligent management? I cannot see how anyone could possibly make that case in principle. If the Government persist in maintaining their position, and if Labour Back Benchers give in too easily, they will be in clear breach of these long-standing principles.

I believe—as the hon. Member for Hendon also appears to—that there is a danger that the Government
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would also risk being in contravention of article 2. I will not rehearse the legal arguments in the report, but they appear to focus on the interpretation of one particular case—the Oneryildiz case—and whether that applies to corporate bodies or only to individuals. The hon. Gentleman’s Joint Committee makes a clear argument that it does apply to public bodies and that that case cannot be interpreted in the narrow way that the Government’s legal advisers seem to want. Therefore, the Government again have a principled reason for moving.

It has been interesting to follow over time how the Government have defended their position—the counter-arguments that they have made. Those arguments have changed—and, frankly, some of them have been poor. It has been argued that custody involves a unique set of factors. One of the Government responses states that the Prison Service does not control the amount or type of people coming in—that that is beyond its control—and that they are often very difficult people with serious mental health problems or a serious tendency to violence. That is obvious; we already knew that. However, that does not mean that the people managing that service should not meet the highest possible standards.

Some private sector organisations deal with very risky things where they do not know what is going to happen. Uncertainty exists in the private sector; it is not unique to the Prison Service. Risk management is an issue for all private bodies, just as it should be for the Prison Service. If the Prison Service correctly manages the risks involved in who might come through the door the next day and what their characteristics might be, it will never be found to be grossly negligent. We are asking not that there should be some special privilege, but that the Prison Service should go about its job in the same professional manner that this Government rightly expect of all private enterprises.

The argument was also advanced that this issue is about public policy, the allocation of resources and the resource constraints affecting Government. Lord Ramsbotham nailed that one when he said that it is about not just cash but the ethos of the service, the value that people put on the lives of those in their care, and the management and various other structures. The forum that we have heard so much about is already dealing with some of these issues. I find it quite alarming that the prisoner escort record problem to which I referred earlier, whereby the information relevant to a vulnerable person transferring from one service to another is not automatically transferred, was not solved years ago. The fact that a forum had to be set up to highlight the problem suggests that there has been some pretty poor management. This is not a cash issue; it is a question of doing the job properly and not being incompetent.

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