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Last month, the Bill returned to this House from the other place with a number of amendments. The House was happy to accept the majority of them, many of which address matters first raised and debated in this House. On the remaining issue—the extension of the offence to custody—the Government took a different view. None the less, after listening to the strong views expressed on that both here and in the other place, the Government sought to respond positively and offered a significant concession in the Bill: a power to extend the new offence to custody in the future. We also announced other measures to tackle this important issue. That compromise has been rejected in the other place, which has asked us to consider the issue again. The Government believe that they have gone as far as they are able on this matter.

Mr. David Heath (Somerton and Frome) (LD): I wish to explore the compromise issue. If the compromise is only in terms of commencement and the Minister now accepts the principle that the offence will extend to custody, why does he not accept the amendments from another place and simply deal with the commencement issue? On the other hand, if he does not accept the principle and if what is being proposed is merely window dressing, why does he expect the other place or this House to accept it as a compromise?

Mr. Sutcliffe: This is not window dressing. This is a serious movement by the Government, from a position of not accepting the principle to accepting it. The issue is to do with time scale. I want to make clear what the Government’s arguments are.

Mr. Dominic Grieve (Beaconsfield) (Con): If the Government have now accepted the principle, they must be able to estimate how long it will take to prepare the Prison Service and the police for this change. I am sure that this House would be helpful and indulgent if the Minister were to come forward with a generous time estimate. However, does he not accept that at present we have nothing on offer at all, and that the Government have the power to decide on whether they ever wish to implement the statutory instrument in question?

Mr. Sutcliffe: I am grateful to the hon. Gentleman for raising that point. I expected him to do so, and I expect other Members to do so, too. They want the Government to go further and we are not prepared to go that far.

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Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Does the Minister accept that this is not only about the timetable? In proposed new subsection (5B) in amendment No. 10A, the Government give themselves the power to make exceptions to any of the liability provisions—exceptions over which this House will have no say. Therefore, this is not only about timetable, but about the nature of the liability itself.

Mr. Sutcliffe: I know that the right hon. and learned Gentleman takes a great interest in these matters. I hope during the course of my speech to explain the Government’s position and why we have taken it. The Government have moved a great deal on this matter; that has not been acknowledged in all parts of the House.

Mr. Edward Davey (Kingston and Surbiton) (LD): The Minister keeps on telling the House that the Government have accepted this in principle. However, when we last discussed this matter he said:

So the Government say that they have conceded in principle but they are reserving the option not to go forward with this power. Why did the Minister say that?

Mr. Sutcliffe: If the hon. Gentleman will allow me to make my speech, he will hear why I am pursuing the arguments that I am pursuing. It was clear from his contributions last time round that he does not think the Government have gone far enough. I certainly accept the proposal in principle, but if he bears with me he will hear my reasoning.

The central issue that divides the Government’s position from that set out in the amendments made in the other place is whether, as has been said, the new offence ought now to extend to custody or whether that is an issue for the future. As I have explained on previous occasions, the Bill’s genesis lies in the difficulties that have arisen when prosecuting large organisations for manslaughter in cases where there have been very real concerns about their management of health and safety—in providing safe working systems for their employees or in the workplace, or when performing activities in the services sector. It was never about holding the Government or public bodies to account for the way in which they discharge public or statutory responsibilities. That point has been recognised in all parts of the House during the Bill’s passage, and the operation of various public services is exempt.

However, the Government also recognised from the outset that the logic of the position in respect of health and safety cut the other way, too, which is why we took the step of also applying the new offence to Crown bodies. We have been very clear that, as an employer and an occupier, there is no reason—other than in a very few limited circumstances—why Government Departments and public authorities should not also be open to prosecution for the new offence.

Mr. John Redwood (Wokingham) (Con): Can the Minister not see that as far as the public are concerned, if the 5,890 people who died of methicillin-resistant
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Staphylococcus aureus and Clostridium difficile are excluded, and if the 174 people who died in custody in 2005 are excluded—those figures are for a single year—the Bill is a nonsense?

Mr. Sutcliffe: I am grateful for the right hon. Gentleman’s intervention, but I reject the idea that the Bill is a nonsense. As far as I am concerned, it is the missing part of health and safety legislation in respect of corporate manslaughter; indeed, that was the reasoning behind the Bill’s genesis. The whole purpose of removing Crown immunity where the Crown acts as an employer and occupier was to put ourselves in the same position as many of the private sector companies that will be subject to the Bill.

Lifting Crown immunity brings with it difficulties in drawing the line between which public activities should be subject to the new offence and which should not, as well as considerable uncertainty about the consequences of making Government Departments liable to prosecution for the first time. It is simplistic to say that all activities should be subject to the new offence, and it is to the credit of the House that Members were not tempted down that route in our debates on exemptions; the real difficulties in that regard were recognised.

One of those difficulties is that applying the criminal law to the carrying out of public functions could have wider impacts on the way in which those activities are carried out that might not be desirable or in the overall public interest. It might make those services risk-averse—and by that I do not mean managing risks by making sensible judgments, but taking an over-cautious approach that seeks unrealistically to eliminate risk. It might also affect the way in which resources are allocated between competing policy objectives, which I believe is a judgment for Ministers to make.

It is not enough to say that this is about poor management, not matters of policy. There may well be management issues but, when looking at how public services operate, it will frequently be difficult to disentangle management issues from the wider policy context. It is also not good enough to say that policy might be affected by the courts in other ways. It is of course true that public authorities are required under public law to act reasonably and must respect the obligations imposed by the European convention on human rights. That has always been the case, but the new offence will draw the criminal courts into an examination of how and why particular courses of action were followed, and that will represent a step change. In our view, this means that we must adopt a cautious approach to extending the new offence to the discharge of public responsibilities.

Mr. Edward Garnier (Harborough) (Con): If those arguments are of any value, why do they not apply to railway companies, for example?

Mr. Sutcliffe: We all agreed that, although this was a Bill that all of us wanted to see enacted, it would provide a good opportunity for corporate and public bodies to get their health and safety activities into a reasonable state so that people are not killed by such
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bodies. The exemptions are applied in a very open way; indeed, we have tried to be very generous in terms of the Bill’s application.

The House will also recognise the pressures that the Prison Service faces both in managing a very difficult environment and a challenging set of individuals at the best of times, and the immediate pressures on the prison estate. It is not our case that these arguments mean that custody must always be beyond the reach of the new offence, but it does mean that the prudent approach is to see how the new offence beds in across the public sector more widely; to see how the courts approach the interaction in these cases of policy and management in areas such as employer and occupier responsibilities; and to provide time to discuss with the Prison Service and others how implementation can be sensibly managed.

I cannot offer a timetable to the House for exactly when and how those issues can be resolved. Because the position may need to be reviewed more than once, and the issues worked through, the more honest course is to include an order-making power in the Bill rather than simply delay implementation.

Mr. Hogg: I am sorry to return to the point that I made earlier, but the Minister says that he is putting a compromise to the House. He has focused on timetables, but should he not focus more precisely on Government amendment (b), which would allow the Secretary of State to exempt whole classes of liability from any order that he may seek to admit? The debate is not only about the timetable, but about the Government’s ability to limit liability as and when the Secretary of State chooses to make the initiating order.

Mr. Sutcliffe: The right hon. and learned Gentleman will find, as we progress, that the Government’s amendment on the relevant duties of care, and the drafting amendment, will take care of that point. The issue is about timetabling, and that point has been raised by Members on both sides of the House. I am trying to offer a compromise and a way forward on the Prison Service and deaths in custody, and I agree that we need to consider how we would bring that forward. Given the Government’s original position, the proper way is to do as I have outlined. I know that that does not meet with Opposition Members’ favour, but I understand their position.

Stewart Hosie (Dundee, East) (SNP): Is the Government’s logic not back to front? I understand the Minister’s argument that he wants time for the provisions to bed in and to consider the special circumstances in relation to custody, but if the provisions apply in a hotel bedroom or a sleeper carriage on a train, they should apply even more in a prison, because it is not only an issue of custody but of the enhanced duty of care that the state owes to the individual in that position.

Mr. Sutcliffe: I understand where the hon. Gentleman is coming from. He has followed the debates and he will know that there are existing routes for the examination of deaths in prison, including through the coroners’ courts or the prisons and probation ombudsman. The Government’s feeling is that those routes are sufficient to deal with the issues, and to address the issue of
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prevention. The Government have come a long way and now accept the order-making power. Our original position was that there was no need for that. I make the reasonable argument that we should be cautious about how we apply the power and at what time. It is important that we do not lose sight of the wider context, both in terms of the power itself and the movement the Government have made.

The hon. Member for Beaconsfield (Mr. Grieve) suggested in our previous debate that the Government’s compromise offered very little other than a short cut to extending the offence to custody in the future, but in fact it represents much more than that. It recognises that it is right in principle for the offence to be capable of going wider than the traditional remit of health and safety issues and encompass the management of custody. Providing for the future extension of the offence in that way is a very significant step, making it explicitly clear that that possibility was specifically foreseen by this House and the other place in passing this legislation.

We would not have gone down that route if it was our intention that the power should never be exercised, but I am also clear that the new offence must be allowed to bed in, in its application to Crown bodies and the wider public sector, and the other measures we are taking must also be allowed to settle in, before we consider applying the new offence more widely.

Mr. Davey: The Minister’s remarks are slightly different from those he made when we last debated a similar amendment from the Government. Is he saying now that the Government are definitely, certainly and unequivocally going to use the power in the future or not?

Mr. Sutcliffe: I am saying that the Government have accepted the principle. We are putting in place the two other concessions that we have made to develop a route through that will help in dealing with deaths in custody. That issue was not raised in the wider genesis of this Bill by anyone in this House, but was certainly raised in the other place.

4.15 pm

Mr. Chris Mullin (Sunderland, South) (Lab): I acknowledge that my hon. Friend the Minister has moved a considerable way during the proceedings on the Bill, and I am most grateful for the way in which he personally has handled the Bill, but I would not want him to sit down thinking that the only objections on the issue of a timetable come from those on the Opposition Benches. There are those of us on the Labour Benches, too, who think that some hint of a timetable needs to be offered.

Mr. Sutcliffe: I am grateful to my hon. Friend for his intervention. I certainly know of his track record of wanting to see the Government move forward. I am grateful that he accepts that the Government have moved a tremendous distance.

Mr. John Denham (Southampton, Itchen) (Lab): I thought my hon. Friend the Minister said before he took the previous intervention that the issue of custody had not been raised in the genesis of the Bill. May I gently remind him that the joint committee of the
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Home Affairs Committee and the Work and Pensions Committee, which scrutinised the Bill, explicitly made a recommendation on this issue. We could see no reason in principle why it should be excluded. We are grateful to the Government for accepting that principle, but it has been around for quite a long time in the discussions.

Mr. Sutcliffe: Mr. Speaker, I am admonished. I accept my responsibility. I do now recall the joint committee’s recommendation.

Mr. Andrew Dismore (Hendon) (Lab): Just to complete the picture, the Joint Committee on Human Rights made such a recommendation before the joint scrutiny committee debated it and subsequently.

Mr. Sutcliffe: I am grateful for my hon. Friend’s intervention and his involvement in this issue. I am grateful for the discussion that we have had to enable us to move the Bill forward. I think that everyone recognises that the Bill is necessary; it is an important part of health and safety and it has agreement across the House. I have accepted the principle.

The other two aspects of death in custody need to be looked at and bedded in. We need to discuss the arrangements for independent investigation of deaths in custody. Further steps need to be taken to prevent such deaths from occurring in the first place. Strong practical steps need to be taken to prevent deaths in custody.

Mr. Redwood: Can the Minister give the House an idea of how many deaths last year would have been covered by the provisions and would have led to a prosecution?

Mr. Sutcliffe: The right hon. Gentleman may have read the explanatory notes and seen that we expect 10 or 11 cases. We are talking about corporate manslaughter and gross negligence. The point that he makes about deaths is important. We have to prevent deaths wherever they occur and in whatever way we can. The forum for preventing deaths in custody is an important tool that we need to look at again. We need to consider how we give people support. The issue of the prisons and probation ombudsman and whether he should have statutory powers is also important. We have to allow the measures that will help us to tackle deaths in custody to bed in.

Deaths in custody are a crucial issue. The Government are not saying, “We do not have to do anything about deaths in custody.” Clearly, we do, but we have to consider how the Bill developed and the motivation for it.

Mr. Grieve: The Minister keeps on talking about the motivation for the Bill. I have no idea what the discussions were with the trade unions when the matter started up, but the Minister has to acknowledge that, once he starts a ball rolling, it is perfectly proper for Parliament to look at every aspect of where the law should bite. It started doing so at an early stage, so to suggest that the Bill has been hijacked for nefarious purposes may be something in the mind of the Home Secretary, but he has also been rather delusional on this point.

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Mr. Sutcliffe: Mr. Speaker, I am not going to engage. The Bill is important.

Ian Stewart (Eccles) (Lab): Will my hon. Friend give way?

Mr. Sutcliffe: In a second. The Bill has been well scrutinised, as my hon. Friends have said. It has been welcomed by both sides of industry—by the Confederation of British Industry and the Trades Union Congress, bodies that work actively in this field. The Government’s concession is a major one. I understand why the Opposition are trying to push it further, but if hon. Members look at the details of what we are putting on offer, they will find that it meets their concerns, because the principle has been accepted.

Ian Stewart: Perhaps my hon. Friend should have given way to me earlier, as I would have said exactly what he has just said. When the Bill began its passage, Members had certain priorities, especially in Committee, so the House should remember that although the process described by the hon. Member for Beaconsfield (Mr. Grieve) is correct, and it is an important issue, other Members have different priorities and it is important that we keep up the pressure for them, too.

Mr. Sutcliffe: I agree, and I am grateful to my hon. Friend for his involvement in Committee and in other discussions about the Bill, which has, as has been said, been around for a long time—it was 10 years in the making. The Bill has been well scrutinised.

Mr. Garnier: I am probably being obtuse, but I simply do not understand how the Minister, on behalf of the Government, can accept the principle on custody that the other place has put into the Bill, yet seem to be arguing as though delaying the provision, or never adopting it, and wanting things to bed down—whatever that may mean—in other aspects of the criminal justice system is a principle of almost equal importance to the first one. Listening to the Minister this afternoon, we have no idea what is stopping him, in real terms, introducing what the Lords have agreed to. In a couple of sentences, can he explain the guts of his argument, in so far as it is sustainable, and then we might be able to make progress?

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