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When the Government argue that the issue is one of resource constraints and public policy, what are they actually saying? They are saying, “We want the right to be incompetent. We want the right to say to Parliament, ‘We don’t want the money necessary to do the minimum that human rights demand.’” That is shocking. When has a Minister said to this House, “We really need more money to do the job properly and to ensure that grossly negligent management does not occur, but we’re not going to ask for it because there are
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other issues to consider”? Effectively, that is what lies behind the Government’s defence and it is just not good enough.

Of course there are problems in the Prison Service—the hon. Member for Hendon talked about them—such as overcrowding and the huge rise in incidents of prisoner violence as a result of that overcrowding, but that is not the time to take off the pressure and say, “Okay, it doesn’t matter, then”. It should matter even more, and such problems should be an impetus for reform.

The Government have also argued in recent months that existing alternative accountability mechanisms for the Prison Service, the police and the health service should be turned to. They have been debated in this House and they do not stand up to analysis. Public inquiries are very rare and the Government work as hard they can to refuse them, so that is hardly a port of call for them to pray in aid. They have also referred to the role of Parliament, but elections are never fought over whether the Prison Service has behaved in a grossly negligent manner, so that is wishful thinking. In this House, accountability works on a totally different level. It does not work at the institutional level—at the level of a particular prison or police service—relevant to the cases before us.

The various investigations that the ombudsman, the Independent Police Complaints Commission and others undertake are of course a very important aspect of accountability; we welcome them and look forward to their being improved. However, and as I said in an intervention on the Minister, they simply try to work out what went wrong and what lessons should be learned; they do not say who was responsible. The difference is that they do not point the finger and say that a particular person should be called to account for those failings. Only if someone knows that they will be called to account is there a deterrent. It is clear from the reports of the Joint Committee and from the way in which the European Court has dealt with such cases that the threat of being brought before the criminal justice system acts as the most powerful deterrent. If we do not do that, we will not put in place the incentive structures required.

The Government could benefit from bringing deaths in police custody within the scope of the Bill. The Government have been doing some great work and I pay tribute to the Minister and his colleagues; there has been some real improvement. Such an approach would go with the flow of, and not against, what the Government are trying to do. The compromise that has been set out is not really a compromise but an attempt to buy people off. The time scale that the hon. Member for Hendon talked about is critical. Let us remember that it took 10 years for this Bill to come before the House. It was promised in the general election in 1997, but we saw consultation after consultation. If we do not use this opportunity to require the Government to include deaths in custody on the face of the Bill, we could have to wait another 10 years for such deaths to be challengeable by a charge of corporate manslaughter.

I urge the Minister to give way on this point. From how the Minister has behaved throughout the passage of the legislation—which is impeccably—I think that he would like to give way on this. In his heart of hearts,
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he knows that the arguments are on our side and I urge him to follow his personal convictions.

Mr. John Denham (Southampton, Itchen) (Lab): I speak on behalf of those who are prepared to accept the Government’s proposals—or to be bought off, as the hon. Member for Kingston and Surbiton (Mr. Davey) suggests. I shall explain why. I am pleased that we are having this debate. My direct involvement in this Bill began when I chaired the Joint Scrutiny Committee—with the Home Affairs Committee and the Work and Pensions Committee—on it. Perhaps I should not say so as the Chairman of that Committee, but its work showed the value of draft scrutiny, because many other issues were sorted out before the Bill was introduced. I wish that we did that more often.

The issue before the House is one of the few outstanding issues on which the Committee took a different view from the Government on what should be in the Bill. I argued the same case on Report and I have seen amendments passed in the other place, and I welcome the efforts that the Minister has made to get us to where we are tonight. I know—and from comments that have been made, the House knows—how much work it has required from him to get us to this position.

For some people, who have followed the Bill from the perspective of losing friends or relatives in accidents such as the Marchioness disaster or train crashes, this subject appears to be a late entry into the Bill, which has given rise to concerns that the Bill itself may be threatened by our desire to extend it to cover custody. The Minister has done his best to get us to a position where the principle of covering deaths in custody is covered by the Bill without putting it under threat. He deserves the thanks of the House for that.

Why am I prepared to accept this when, from the amendments that I tabled last time, it is evident that my preference would be a straightforward amendment to the Bill? The answer is that I believe that the amendment the Minister has tabled today will trigger a process that will lead inexorably to deaths in custody being brought within the scope of the Bill. Whether or not he feels he has the freedom tonight to talk about time scales, the fact is that the process, once started, will be unstoppable. The Minister is also responsible for prisons, and I do not believe that when he next meets the director of the Prison Service, he will say to him, “I’ve got you out of that problem for the next few years, so I wouldn’t worry about it if I were you.” Instead, the Minister will say that deaths in custody could be included at any time and the Prison Service will have to be ready for that. Many of us would accept that, even if the provision had been on the face of the Bill, some delay in commencement would have been necessary to get the Prison Service to face up to its responsibilities in a way that it has not done so far. That is how the conversation will go.

I do not wish to prejudge inquests in the pipeline, but there are some whose verdicts could make it untenable for the Government not to bring forward the resolution necessary under the amendment, however much the Government may prefer to consider the statutory ombudsman first and the forum next. I fear that there will be other inquests beyond those. That is the
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historical record, and the result will be that it will not be tenable for this or any Government not to enact this change.

4.30 pm

I believe that those of us who, a year or so ago, set out to bring this matter within the scope of the Bill are going to achieve our objective tonight. It is for that reason that I recommend to the House that we support the Government’s proposal, which takes us a long way forward. As ever when Governments are asked to take a very different position from the one that they started with, there is a certain choreography about how such matters must be handled, but the amendment in lieu in the end gets us to where we want to go and delivers the result that we want. I am therefore very grateful to the Minister for everything that he has done.

Mr. Garnier: I fully appreciate what the right hon. Member for Southampton, Itchen (Mr. Denham) has said about his motives for supporting the Government in resisting the Lords amendment. I also accept that politics is largely a game of compromise, and that the best is very often the enemy of the good.

In addition, I understand that the Minister must have felt as though he was in custody ever since the present Home Secretary—who has had various political personalities since 1997—took office. Even if, metaphorically speaking, the Minister has been in the category D estate, rather than the secure estate, his freedom to think and speak as he would like on matters such as this has been closely circumscribed. The Home Secretary is due to leave office in a few weeks. When the Minister joins the 7,500 others who have absconded from the category D estate over the past 10 years, I hope that he will feel able to advance the case and the promise that he has laid before the House.

It may be thought significant that the Howard League for Penal Reform has announced that Cherie Booth, the Prime Minister’s wife, is to be the president of a commission that it has set up to look into the state and purpose of our prisons. I hope that the Minister might therefore take a rather more advanced view of the need for openness and candour about deaths in custody.

I want to make a secondary point, although it is one that needs to be made from time to time. The guts of the Government’s amendment in lieu reveal that it gives Ministers power to amend primary legislation by secondary legislation. I find such a power increasingly troublesome, and this Bill is not the first to allow it. Indeed, the amendment in lieu will mean that a Minister will be able to amend not just any old bit of primary legislation, but the criminal law.

I appreciate that the Bill pins responsibility for corporate manslaughter on a corporate body, or at least on a non-human defendant. However, the consequences of the Minister making an amendment that would include a category of institution in the ambit of the Bill—or remove a category of institution from that ambit—are too big to be covered by a system allowing amendment by statutory instrument.

We have heard and read about the excuses that Ministers in this House and the other place have
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produced for not doing what I believe that the hon. Member for Hendon (Mr. Dismore), the Chairman of the Joint Committee, would really like them to be doing now. Those excuses can be loosely encompassed by the expression “the doctrine of ripe time”.

Every Government have civil servants who, by way of a draft excuse, say, “No, Minister, the time is not yet ripe.” Well, here we are again: I have heard the Minister produce the “time is not yet ripe” excuse today, and one reads in the record of the debates in the other place that Lord Bassam has said things like, “It’s a jolly nice idea but we are not ready yet.” In addition, the formal response from Baroness Scotland to the Joint Committee report uses about 50 paragraphs to say, broadly, that the time was “not yet ripe”.

The argument could go on and on, and I suspect that, contrary to the hopes of the right hon. Member for Southampton, Itchen and the Minister, the ripeness of time doctrine will be deployed for some while. If the Conservative party is elected to government after the next election, I should not be surprised to find that we, not Labour, introduce the proposal.

One of the most important reasons for asking the Government to change their mind and to agree with the House of Lords is that, by and large, prisons are secret places. Over the past 14 months, I have visited about 24 prisons in my Front-Bench capacity—from those accommodating young offenders to the most secure establishments for adults, both men and women. They are largely secret places. The public do not know much about prisons or about what goes inside them, except when there is a disaster, an escape or the report of a death. I sincerely wish that the public knew more about what went on in prisons.

As a direct consequence of the number of prison visits I have made over the past year or so, I can tell the House that, contrary to the general impression that might be gained from the arguments in favour of inclusion of the Lords amendment, the Prison Service and the private prison providers contain some hugely dedicated, well-meaning and professional people at all levels, from the governors and directors right down to the prison officers at floor level. I do not want anything I say in support of the arguments of my hon. Friend the Member for Beaconsfield (Mr. Grieve) or of the majority in the other place to be taken in any way as designed to denigrate or diminish the contribution of those who work in prisons.

That prisons are difficult places to work in is uncontroversial. The report of Her Majesty’s inspector of prisons on Her Majesty’s prison Norwich shows that prisons are not only difficult but squalid places to work in. Last year, the Prison Service had to decant a wing of Norwich prison because the prisoners were living in their own sewage, so it follows that the prison officers had to work in that sewage. Unfortunately, owing to the dreadful condition of the prison estate and its overcrowded nature—more than 80,000 prisoners are in custody in England and Wales—that squalid wing of Norwich prison has had to be refilled. As a Crown Court recorder, I put up my hand as someone whose public duty it is occasionally to send people to prison, but when the characters and personalities of people who are, for good reasons and bad, in prison—people with personality disorders, people suffering from substance abuse, both drink and drugs, or people
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who are intellectually impaired—are added to the overcrowded conditions in modern British prisons, it is hardly surprising that deaths occur.

The reason why I wanted to intervene on the hon. Member for Hendon was not to criticise his arguments but to point out that in response to a recent written question to the Minister, I was told that 97 prisoners had suffered a self-inflicted death between January 2006 and April 2007. If one does the maths, that works out at more than six prisoners a month, on average. Those are self-inflicted deaths. There will be others. Right hon. and hon. Members will have their own examples, either from their constituency or because they have a general interest in and knowledge of the subject. There will also be deaths resulting from natural causes. With the increasing number of lifers, of prisoners serving indeterminate sentences, and of people of older years remaining in prison, I suspect that natural causes will account for a growing percentage of the deaths in prison. There will also be assaults by prisoners on other prisoners and, sadly, there will be cases where prison officers—for good reasons and bad—will need to restrain prisoners who have lost their temper or who have no ability to control themselves, and who are then accidentally brought to an early death.

Mr. Dismore: I just want to put the record straight as the Joint Committee on Human Rights understands it from the information that we were given by the Government and that is recorded in our seventh report of 2006-07 in paragraph 2.2.1.1. That paragraph states:

Those are the figures that the Committee was given. They are encouraging, but of course they probably represent only about a third of the overall total of deaths.

Mr. Garnier: I do not want to have an argument with the hon. Gentleman about the numbers. We are seeing self-inflicted deaths at the rate of more than six a month now. If one looks at the figures over the last 10 years, there was a dip in the early 2000s, but, according to the latest figures, which I got from the Minister the other day, it appears that the numbers are going up again. I suspect that that is largely due to the hideous nature of the overcrowded prison estate and the nature of the people who are in prison. Prisons are difficult places in which to work, which is why I wanted to make it quite clear that I am not attempting to be derogatory about those who work in them.

I think that the Lords amendment in question was originally tabled by Lord Ramsbotham. Let us look at his definition of “custody”. All the people who would be in Government or public care in those sorts of places are, by virtue of being in those places, powerless. They have the power to hit, to shout and to make a nuisance of themselves, but equality of arms does not exist. Therefore, Parliament, by passing legislation, must do what it humanly can and humanely should do to ensure that, in the sadly many unfortunate cases where deaths occur, the family of the dead person, and
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also we on behalf of the public as a whole, have a greater understanding of why that terrible event—the death—occurred.

Let us take the example of the Mubarek case. A young man was murdered by a deeply disturbed and disturbing cell mate in Feltham young offenders institution. I visited that institution not so long ago and I can assure the House that the lessons from the Mubarek incident have been well and truly learned and taken on board, so that there is now an entirely different, albeit imperfect, regime for young people in that place. When that youngster died, it took the family years and years of pushing to get what they should have had by right: a candid and open explanation of why their loved one died. Why did it take legal action, which went all the way to the Judicial Committee of the House of Lords, before the family were granted what I suggest the Lords amendment that we seek to defend and that the Government wish to do down would provide?

Mr. Dismore: I think that the hon. and learned Gentleman is mixing up two different things. The measure would not have provided that. While it would have provided a criminal remedy to punish those involved, it would probably not have given answers to what happened. The Government’s proposal, with, for example, new statutory powers for the ombudsman—I do not think that the ombudsman was in force at the time—would start to deal with the questions of what happened to Mubarek, which, I think, is what the family is especially concerned about. The Bill will create a deterrent effect and allow a prosecution to take place if things go wrong, but it will not necessarily address the specific point that the hon. and learned Gentleman raises.

4.45 pm

Mr. Garnier: I suspect that it probably will. While I take on board the hon. Gentleman’s assertion that my argument is marginally off-beam, given that the Bill provides for a post-event criminal procedure, I suggest that the Bill could none the less provide a deterrent through an anticipatory effect.

The Minister argued—it was not the best point that he made, but he was repeating Government Members in another place—that the courts should not interfere with public policy making and resource allocation. When I intervened on my hon. Friend the shadow Attorney-General, I hope that we dealt with that. I hope that the hon. Member for Hendon will agree that it was obvious that the passing of the Human Rights Act 1998 and the domestication of the convention into UK law would lead to issues of public policy being the fiercely fought subject of argument in the courts. The courts do their best to respect the separation of powers and to understand the difference between what they do and what we do. However, the law, be it the common law or statute law—we are talking about statute law here—can drive policy, even if that should not be made in the courts.

The Government lack confidence in their arguments about the way in which to proceed. If they are saying that amending legislation in the future by way of their proposed amendment in lieu will address this question adequately, they are selling themselves short and not
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doing themselves justice. If they really believe, as I suspect that they do, that they want to prevent deaths in custody and that any death in custody should be properly examined, with reasons given publicly, they ought to do what Lord Ramsbotham’s amendments propose. They should follow the logic of their arguments, but at the moment I am concerned.

Let me finish with several points that emerge from a report by the Joint Committee on Human Rights, which is chaired by the hon. Member for Hendon. As several hon. Members have pointed out, the Joint Committee made three criticisms of the Government’s position, which I shall take in reverse order. Paragraph 2.12 of the Joint Committee’s report in which the Bill was considered said that

If the Government were making a good argument about cost, we would never have any lengthy criminal investigations. The terrorist trials that recently concluded would never have got anywhere on the basis of cost, while the King’s Cross disaster would never have been investigated. Those investigative procedures were hugely expensive. When the right to life—the article 2 right under the convention, which the Government claim to have brought home to this country—is at stake, while one should bear cost in mind, it should not be a trump card.

The Government’s second argument was that


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