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public bodies are subject to wider forms of accountability, including accountability to Parliament, accountability under the Human Rights Act 1998, accountability through public inquiries and the existence of specific watchdogs such as the Independent Police Complaints Commission.
That may or may not be true, but it is not an adequate answer to the arguments put forward by those who support Lord Ramsbothams amendments. The Minister places reliance on the prisons and probation ombudsman, but one need only think back a few weeks to when the Government, through the Treasury and the Department for Work and Pensions, completely ignored and vilified an ombudsmans findings on occupational pensions. The hon. Member for Slough (Fiona Mactaggart), who is no longer in the Chamber, said quite candidly, as a former Home Office Minister, that the Government have form in that respect. If the Government are prepared to act in that way on economics and pensions, which are not life-and-death issues, surely we can expect them not to pay much attention to disobliging reports from other ombudsmen. At any rate, it might not give us much confidence that they will do anything in response to an ombudsmans report. I therefore urge the Government to be a little more careful in deploying that argument.
decisions taken by public bodies when exercising public functions have a public policy dimension, involving matters such as the allocation of public resources, which are matters more appropriate for an elected Government to decide than for criminal courts.
Again, that is a confused argument. It misunderstands the consequences of the Governments own policy of
introducing the Human Rights Act 1998. It also misunderstands the evolving nature of public policy and the public interest.
The hon. Member for Hendon mentioned his private practice; let me mention my experience as a practising lawyer in the field of defamation. What is defamatory changes as public opinion and public standards change. It used to be defamatory to accuse someone of being a Roman Catholic, but that is no longer so. It used to be obviously defamatory to accuse someone of being a homosexual; that situation is on the edge at the moment. Public mores and attitudes change, and so the public policy behind the development of common law changes. The Governments attitude towards the public policy dimension arguments is too rigid, and they fail to understand the importance of the way in which public opinion is changing. The public expect greater access to the hidden world of prisons, and they expect the courts to police deaths in custody. We should not stand in the way of that, and nor should the Government.
I will end my comments now, because the points have been made, both with great force and with great gentleness, by a number of speakers. I hope that the Government will listen carefully to what those who disagree with them have said, and to the undertone of what the right hon. Member for Southampton, Itchen and the hon. Member for Hendon said. Although they are supporters of the Governmentand why should they not be?I suspect that they do not want to be pushed too far. In light of what hon. Members on both sides of the Chamber have said, if the Bill returns to the other place without having met the concerns expressed in the amendments that I am seeking to defend, I would urge Members in the other place to stick to their guns. They should advise the Government to think hard about the matter, and to alter their view.
I expect that the Minister has got bored of compliments, but he knows what we think of him. However, we also know that he is between a rock and a hard place in many different ways. Lady Scotland said in the House of Lords that the Government were not brave enough yet to do what Lord Ramsbotham required of them. Why does not this Minister be brave enough?
Jeremy Wright: I, too, hope that the House does not reject the amendments in this group that the other place has sent us for consideration. I shall make three brief comments about those amendments and the Governments amendment in lieu.
First, I join in the general acclaim for the way in which the Minister has dealt with the legislation and the amount of movement that he has caused the Government to make. However, in doing so, he has put himself and the Government in a somewhat odd position. He has, as my hon. and learned Friend the Member for Harborough (Mr. Garnier) said, conceded the principle that deaths in custody could potentially be subject to corporate manslaughter prosecutions.
Having conceded that principle, the Minister goes on to argue that the reason why those cases should not currently be subject to corporate manslaughter prosecutions is that there will be further protections for those in custody later, and that the Government are working hardI take him at his word on thatto
ensure that there are other measures, some of which he spelled out, which ensure that, though the present position is unsatisfactory and there are not sufficient protections for those currently in custody, there soon will be.
If that is the Ministers argument, and if those who are in custody will in future, we hope, be less vulnerable than they are now, their present vulnerability is potentially more deserving of the protection of a corporate manslaughter prosecution than it ever will be. Therefore, there must surely be a good argument for including corporate manslaughter protection for those who are in custody now, if there ever is a good argument for that. I agree entirely with the hon. Member for Kingston and Surbiton (Mr. Davey); I see no reason why it should not be now if it could be later.
Secondly, when we discuss the matter in the House we should be clear that we are not talking about laying the Prison Service or prison governors open to any false or vexatious prosecution claim. The standard of proof in the matter is high. It is clear from the Bill as it standsthe amendments do not cover this pointthat in order to establish guilt of corporate manslaughter and responsibility for a death of that kind, there must be a gross breach of the relevant duty of care. That breach is defined as amounting to a breach of the duty which
falls far below what can reasonably be expected of the organisation in the circumstances.
The Minister and others have made perfectly reasonable points about the differences between the challenges faced by those in the Prison Service and by those in other situations. That is entirely fair comment, but any jury and any prosecuting authority would be expected to consider those differences and those particular challenges in deciding whether a prosecution should be brought in the first place. By enabling deaths in custody potentially to be covered by the law, we would not be opening the floodgates. We should therefore have confidence that we can include it without that danger.
Thirdly, as other Members have said throughout consideration of the Bill, this is a Bill and hopefully an Act which has been long awaited by a great many people. It will be watched and scrutinised carefully by those who have waited so long for it to go on the statute book. It would be tragic if the legislation gave the impression that the private sector is vulnerable to corporate manslaughter prosecutions but the public sector is not, and that in some way protections have been given to those in the public sphere which are no longer, quite properly, available to those in the private sphere.
I know, of course, that that is not the Governments intention, but it would be tragic if that impression were given. I fear that if we exclude deaths in custody, as the Government wish, there will be that danger. It is right that hard cases make bad law. That has always been true and it is true in this case too, but it would be unfortunate if we ended up making bad law by trying to exclude those cases that may be hard for the Government to deal with. For those reasons, I hope very much that the amendments from the other place will be accepted.
Mr. Sutcliffe: I thank all hon. Members for the quality of the debate and for their welcome for the way in which the Government have listened to what has been said in the various debates in both Houses. I am grateful to my hon. Friend the Member for Hendon (Mr. Dismore) and my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) for their support for what is a real compromise. I understand where the Opposition are coming from and it is not surprising that they are not prepared to go along with it, but I hope that I can assure them of our earnestness in what we seek to achieve.
The hon. Member for Rugby and Kenilworth (Jeremy Wright) hit the nail on the head on the view of those outside the House on the Bill. He is right that it has taken a long time for the Bill to reach this stage and it has been many years in waiting, but it is important that it be seen in the context of the way in which it was introduced as health and safety legislationthe missing piece of legislation in holding corporate bodies to account. That was the Bills aspiration.
I acknowledge and accept the thanks for the Governments major step forward in removing Crown immunity. We are the first Government to do that, so I hope that hon. Members will understand our concern about moving too far too quickly. The hon. and learned Member for Harborough (Mr. Garnier) may say that that is said too often, but in these circumstances it is the right approach.
Stewart Hosie: May I have one more go at the Minister on this point? In Glasgow tonight there will be 60,000 Spanish football fans. When they travel by the airlines they will be owed a duty of care by the operators. When they go to sleep tonight in their hotel rooms they will be owed a duty of care by the hotel companies. When they go to Hampden Park, they will be owed a duty of care by the Scottish Football Association. If they have a drink too many, fall down and are arrested for their own protection by Strathclyde police, the duty of care will cease. Is that not just an inconsistency too far?
Mr. Sutcliffe: We have to remember that in the Bill the duty of care has to be seen in the context of a gross breach of procedure. Hon. Members have understandably focused on deaths in custody, but we must see the Bill in its wider context, and putting that measure in the Bill at this time will not solve the problem of deaths in custody. That is why, as my hon. Friend the Member for Hendon said, it is important to look at what we propose on the forum for preventing deaths in custody and the changes that we seek with regard to the prisons and probation ombudsman. I understand the focus on deaths in custody this evening, but I ask hon. Members to look at the bigger picture of what needs to happen. The proposal would not solve the issues around deaths in custody, because we need to continue the work of a variety of committees that have made recommendations to the Government on how to deal with that matter.
There is no sense of the Government trying to protect their position or seeking to tell the director general of the Prison Service that he is off the hook and has nothing to worry about, as my right hon.
Friend the Member for Southampton, Itchen said. That is certainly not the case and that is why I attach a lot of importance to the forum for preventing deaths in custody and the changes that we seek with regard to the prisons and probation ombudsman.
There are pressures on prisons, and todays debate has focused on prisons, although the definition of custody can be wider and the powers that we propose give us the flexibility to cover the other definition of custody that has been mentioned. I want us to learn from the experiences of the Bill and to look at what can be achieved through other work in relation to deaths in custody.
Again, I pay tribute to my right hon. Friend the Member for Southampton, Itchen and my hon. Friend the Member for Hendon for the work that their Committees have done in considering this issue. They have rightly pushed us to reconsider the issue, and I am pleased that they are both happy to accept the spirit of what we are trying to achieve. Anybody who thinks that they could be bought off so cheaply does not know the depth of experience and skills that they have.
The forum is already working well in bringing together practitioner and inspectorate professionals to compare approaches. The review can consider many issues, including greater autonomy from Government, increased ability to conduct research, more capacity for information sharing, coroners rules and prisoner escorts. I hope that we will be able to report on progress within six months.
Mr. Sutcliffe: I am sure that the chair of the forum will be robust, as he already has been in talking to me, about what he would regard as the details of how we should reform measures. We want to make the review work and I would hope that the forum will come back to us within six months. That is a reasonable time scale. [I nterruption. ] In setting up a review, people do not want to say what the outcome will be; they talk about its remit. I would hope that the points that my hon. Friend the Member for Hendon has raised, and points that the chair raises, will be considered.
Mr. Grieve: I am sorry to have to press the Minister on this. Is the implication behind his comments that, if the forum were to come up with conclusions that appealed to the Government, they might never enact the relevant statutory instrument? There is another way of doing this. The Government will not simply enact the legislation in the form in which it has come from the other place, but they could take the necessary time for the preliminary stages before bringing it into force. It would be easy for them to do that without any further amendment. The Minister will understand that one of the anxieties in the House is that although he is saying what is absolutely truthful in his own mind, it will be brushed under the carpet and will never happen.
I do not accept that. That will not be the case because, as my right hon. Friend the Member for Southampton, Itchen said, the very fact that the principle is there will mean that people will pursue its
detail. I have no doubt about that. I am arguing that it is not a panacea for dealing with deaths in custody. In my view, we need to work hard on the forum and we want to make it clear that the prisons and probation ombudsman will be independent from the Government. We want to ensure that he has the formal duty to investigate all deaths in his remitin prisons, immigration detention, young offender institutions, secure training centresand a statutory remit to determine the scope of and procedures for each investigation. There will also be new High Court powers to obtain evidence.
Those are significant steps. I understand the point about the timetable, but it is no surprise that there is a difference between the Government and the Opposition. I am more inclined to support my hon. Friends views and the way in which they have dealt with the Governments compromises to try to achieve the consensus that we all want. It is no surprise that the Opposition want to defeat the Governmentthat is the nature of what we do. However, I ask hon. Members to consider what has happened and the considerable movement that the Government have made. The compromise is not window dressing but something genuine to deal with the important issue of death in custody. The whole picture should be examined in the context of the purpose of the Bill.
Mr. Dismore: My hon. Friend has given us a good timetable for the forum. I welcome thatit is a reasonable approach. Six months is a reasonable time in which to report back to us. Will he try to be more forthcoming about the timetable for the other two issues?
Mr. Sutcliffe: I understand why my hon. Friend wants to push me, but he will understand why I decline to be pushed. We want to examine the impact of the concessions that we are making. I hear what he says and we will consider the matter further in the time that is left for the Bills passage. However, I remind all hon. Members that it is a carry-over Bill, which most people welcome and want to be implemented.
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