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Mr. Sutcliffe: I seem to have difficulty in debates with the hon. and learned Gentleman in getting him to accept my arguments. I will try, but I am not sure that he will accept what I am about to say. Death in custody is a serious issue and the Government take it seriously, which is why we introduced and developed the forum for preventing deaths in custody and why we want to give powers to the prisons and probation ombudsman to investigate such deaths. We believe that a range of issues needs to be looked at. The Government’s original position on corporate manslaughter was that deaths in custody would not apply; we did not see this legislation as an appropriate route for dealing with that important issue. However, we have moved dramatically to accept the principle that it should be in place, but we want to do two other things, too—to improve the operation of the prisons and probation ombudsman and the forum for preventing deaths in custody. If we do that, we shall deal with issues relating to deaths in custody while
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accepting the principle that if we need to go further—[Hon. Members: “It is not here.”] It is. The House can have the foresight to put that power on the face of the Bill—the power that has come back to the House for it to decide.

We are in the same position as in our previous debates. Opposition Members accept that the Government have moved and I am pleased that my hon. Friends also accept that. We have come a considerable distance. We have offered practical measures to improve the situation on deaths in custody and we have opened a door in the Bill in relation to the new offence applying to such deaths. We have done the right thing. That door is clearly open.

The other place has sent these amendments to us on two occasions, and the Government have made significant efforts to deal with the concerns they raise. It is time for the other place to play its role as a revising Chamber and allow the Bill to pass on to the statute book. Votes in this place reflect the strength of feeling here, so I hope that the other place will accept the will of the Chamber. I commend the Government’s amendments.

Mr. Grieve: This is very nice. The Minister, with his customary charm, has come to the Dispatch Box to argue the unarguable. It is also nice to be described as right in principle—something every politician and Opposition relish—so I take that as a sincere compliment to Opposition Members and, I suppose, to many of the Minister’s Back-Bench colleagues who share our principle. The problem is that I wish the principle to be translated into practice.

The difficulty is that, yes, the Government have moved, if one makes an assessment of a move by virtue of having regard to the pace of a snail, but I never thought that the Government wished to be characterised as an organisation or organism that moved at a snail’s pace. That is all that the Government have achieved. On top of that, it is a very conditional move, because if the Government choose to retreat back into their shell and resist all predators around them, we will never get any movement on this matter at all.

The Minister has one point in his favour: he has made a case—I accept that it is a case—that there should be a time delay before the measures that the other place has introduced are implemented. If he were to come to the House or, I am sure, if the Government were to go to the other place and suggest a sensible timetable, even one that was generous to the Government to enable the current disorder in the Home Office and the Ministry of Justice to sort itself out, it would be viewed with some sympathy, simply out of regard for the Minister, to put him out of his misery of having to come back to the House repeatedly to continue this debate.

Mr. Hogg: I agree with what my hon. Friend has said thus far, but if the compromise enabled the Minister in the implementation to alter the nature of the Lords amendment through the statutory instrument, that would be unacceptable to me.

Mr. Grieve: I could not agree more with my right hon. and learned Friend. Indeed, Back-Bench supporters of the Government who wish to help them out of their difficulty should have regard to that nasty little subsection, because it will allow a Government
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to claim in future that they have honoured their commitment, while implementing only a fraction of the total package that the House wishes them to introduce.

At the risk of repeating what I said on the last occasion—I think that it bears repeating—we are talking of some 2,000 deaths in custody between 1995 and 2005. We are talking of some 10 verdicts by juries of unlawful killing in relation to such deaths. The case of Zahid Mubarek caused something of a national scandal. Between the time when we debated this matter on an earlier occasion and today, we have had the publicity surrounding the death of Adam Rickwood at Hassockfield, a matter on which I would not seek to make a pronouncement. However, I am sure that the Minister would agree that the death in a cell of a 14-year-old by suicide, using his own shoelaces, a number of hours after he was undoubtedly subjected to a restraint technique that might give cause for concern—although it might have been acceptable—when it was quite clear that there were serious problems with his mental state is precisely the sort of case where public disquiet could properly be met by having such a measure on the statute book that allows for proper prosecution where there has been gross negligence by the organisations concerned.

We are talking of trying to do some good and trying to change culture. It may well be, as the Minister said, that in dreaming up the Bill the Government had other targets in mind, but the process of debate proceeds inexorably and, as it has done so, it has become clear that there were problems in some areas and opportunities in others.

We had a really good debate in Committee, and the Bill has been well handled by the Minister. The problem now seems to be that we have a Government or at least a Home Secretary who is completely obdurate, and it is difficult to escape the conclusion, given the absolute lack of give between this Government amendment in lieu and the previous one that we considered, that the Government are showing inflexibility.

If the principle has been conceded—indeed, I detect in the Minister’s tone of voice and in the way he has presented this matter not just a concession of the principle, but a genuine endorsement of it—and if he genuinely endorses the principle, and I dare say that there may be others in the Ministry of Justice who endorse it as well, are we really going to be left with the only option of continuing this ping-pong with the other place until the Home Secretary has mercifully disappeared off the scene completely? I have to say to the Minister that I think peers of all parties in the other place are very resolute on this matter. The Government will find that the Bill will ping-pong for a long time, and each time that it comes back to the House, their standing will be just a little more diminished.

4.30 pm

Although I cannot persuade the Minister today, we will stand by the Lords amendments—they are perfectly sensible measures. I urge the Minister to speak to Lord Falconer and the Home Secretary—if they are still on speaking terms now that the Departments have been split—and point out that this matter will cause the Government increasing embarrassment and damage. The sensible course of action would be to take a deep breath, to tell the Prison Service, the police and other
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organisations, such as local authorities providing secure accommodation, that they must get their house in order and make an assessment, and to set a date for implementing the measures put forward by the other place. When that happens, I will be able to say lots of pleasant things about the Minister—although I have tried to say lots of pleasant things already because I believe he knows that those who are expressing a contrary view to him on this matter are right. If the Government rise to the occasion, perhaps we can avoid further exchanges like this afternoon’s. The Lords amendments should stand.

Mr. Dismore: There was a lot in what the hon. Member for Beaconsfield (Mr. Grieve) said. However, to be fair to the Government, they have moved a great deal, even though a lot of what they have said is not in the Bill or the Government amendments in lieu. Last time, we were offered three things. We were offered a review of the deaths in custody forum, and I was pleased that we were given a timetable of about six months. While the suggestion of a new statutory role and powers for the prison and probation service ombudsman was an old promise rehashed, I hope that we will see a little movement and that my hon. Friend the Minister will be able to tell us a little more about the timetable for that. Of course, the third important issue is what we are discussing now: addressing, in the Bill, deaths in custody. The Government have moved a considerable distance on that since we considered the matter on Report, but the question remains: when will the situation be dealt with?

I would have been happier if Government amendment (b) in lieu had said not

but “shall by order”, because that would have given us a degree of certainty that the matter would be continually reviewed and acted on, rather than addressed in a manner that is simply permissive. The absence of the word “shall” means that we need a bit more from the Government on the timetable.

I will not vote against the Government today, because their proposals are similar to what we voted on before. However, as I said to the Minister last time, the discussions that I have held with peers in the other place—members of my Committee and others—suggest that the matter will keep coming back because they feel strongly about it. Deaths in custody have been an issue for the Joint Committee on Human Rights for many years.

Now is the opportunity for my hon. Friend the Minister to put an end to this game of ping-pong. We have only a few weeks before the Bill runs out of time, so sooner or later concessions will have to be made. We do not necessarily need a formal timetable. If we could work to a target date—the Government like targets, and I am quite keen on them, too—that might be a way forward. Without a target, what pressure will there be on the Prison Service and other organisations to encourage them to mend their ways? If we had a date to work towards, at least they would know the time by which they would have to get their house in order.

Mr. Sutcliffe: My hon. Friend accepts that the Government have moved a tremendous distance. The Government accept that deaths in custody represent a key issue. In addition to the amendments, we have
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offered two important concessions that need to be developed. We have given a time of six months in relation to the forum on deaths in custody and said that the next available piece of legislation will be used to address the subject of the prisons and probation ombudsman. I hope that my hon. Friend understands why it is important for those reasonable steps to bed in before we make further decisions.

Mr. Dismore: I readily accept that those concessions are important, as I did during our previous debate on the Bill. It would be nice to have an idea of when the next available Bill might appear, although I understand that my hon. Friend might not be able to tell us, because of the problems of trying to foresee what will be in the Queen’s Speech. However, the Prison Service needs to know the date by which it needs to get its house in order.

Mr. Davey: The hon. Gentleman and the Joint Committee on Human Rights, which he chairs, have made a distinguished contribution to the Bill, but will he respond to the point made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg)? Subsection (2)(a) in Government amendment (b) in lieu actually makes the amendment far worse than the amendment that the hon. Member for Hendon (Mr. Dismore) supported on a previous occasion. Is he not concerned that he is supporting a measure that will deliver something completely different from what his Committee backed?

Mr. Dismore: The hon. Gentleman makes a valid point, as did the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). The question is what can be considered a reasonable compromise. I would prefer the provision not to be included, but we are in a political world, and we are trying to reach an agreement and a compromise. If the Minister came forward with a timetable, that would be a satisfactory compromise all round; it would satisfy the other place, too, because it would show not just an acceptance of the principle but, as the hon. Member for Beaconsfield said, an acceptance that there are practical steps to follow. That would be an additional token of the Government’s good faith on the issue.

We are talking about a deterrent effect, but that effect cannot take hold until the Bill is in force. How can we ensure that the Prison Service starts to gear up for that effect? The only way is to have a target date on which the part of the Bill that we are discussing will come into force. There should be a target date, so that bodies can get their act together, and a deterrent effect once the provisions have taken effect. The Government have moved a long way, but I suspect that the other place will still kick the Bill back to us, and we will continue to play ping-pong.

A different Department, the Ministry of Justice, is now dealing with the Bill, and that means that there are people who are prepared to look at the issue with fresh eyes. If the Minister cannot set out a timetable or give a target date today, I hope that he will at least reflect once again on what has been said in the House.
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Perhaps when the Bill goes back to the House of Lords, the Government spokesman there can give us a date to work towards, in respect of the amendments.

Mr. Davey: This is one of those slightly surreal debates that we have in the House. The Government say that they accept all the arguments, and that they are on our side and agree with us—but Members across the House are not sure whether they trust the Government. Perhaps we are in a surreal moment in British politics; perhaps we are waiting for 27 June, and perhaps then there will be permission from the Prime Minister to go ahead with the concession that Members of all parties want.

I hope that the hon. Member for Hendon and his colleagues will accept that what is on offer is simply not good enough. Some of us think that there is no need to wait to implement the measures that the other place wants, and that we should put measures on deaths in custody on the same footing as all the other measures in the Bill. However, there is a case for a timetable—the hon. Member for Beaconsfield (Mr. Grieve) began to outline it—or for a commencement order, as my hon. Friend the Member for Somerton and Frome (Mr. Heath) suggested. Frankly, I am not immediately attracted by that option, but it is something that the Government could consider, and they could use it to test the views of this House and the other place. The period set out in the timetable should not be too long; it should certainly not be as long as is needed for the Home Office and the Ministry of Justice to get their act together—that would be too long. Certainly, the timetable should be specific and detailed; it might then begin to persuade people on different sides.

We had a small discussion about the timetable in a previous debate. The right hon. Member for Southampton, Itchen (Mr. Denham) was rather more optimistic than others, and he believed that as the power would be set out in the Bill, there would be an unstoppable momentum, which would ensure that what we want would come to pass. I am afraid that it is the House’s job to be rather more sceptical about unstoppable momentum. Let us remember that this Bill had its genesis before the 1997 election. It took more than 10 years to get to this stage, so I do not think that we should be confident that unstoppable momentum will be created if we just accept the power with no timetable. I have huge respect for the Minister, but on three occasions in the previous debate he said that there was no guarantee that the power would ever be used.

Mr. Hogg: The hon. Gentleman does not have to look at the history, as it was only today that the Minister used the word, “if”, which means that the power might not be used.

Mr. Davey: The right hon. and learned Gentleman is exactly right, so I will not detain the House by reading out the three quotations from the previous debate that back the point that he and the Minister have already made—that we are in the world of “if” and “whether”, not a definite, certain “when”. The Government have left themselves enough wriggle room for a nest of snakes to wriggle out of that so-called concession, and we must ask why. Let us accept for a minute that they intend to introduce the measure some time. Why the
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delay? The Minister said that the police and the Prison Service needed to get ready, which implies that they are not yet ready, and are in such a state that gross negligence in management is possible.

That is a shocking admission, but let us move on and be charitable. What has to happen before they are ready? Perhaps new protocols need to be written, or extra training needs to take place. Perhaps a change of culture is required. One would hope that that would already have happened after 10 years, but perhaps those are the reasons. If that is the Government’s argument, and at some stage they come up with a timetable, we must ask why that period is needed. What is going to happen between now and then, and why are those actions necessary to ensure that suddenly it is acceptable to apply the offence? Until now, the Government have not even begun to make those arguments, and have tried to swat them aside, which is why we are suspicious about the underlying motive.

There are principles at stake, as we have debated incessantly. Equality before the law, and equal protection under the law: ultimately, those are the principles that we are defending. I am afraid that the Government have not moved anywhere near enough for us to be sure that those principles will be enshrined.

Mr. Denham: I must confess that intellectually, it is hard to oppose the Lords amendments, which are entirely consistent with the position that I have taken throughout the Bill’s progress and the report of the Joint Committee. However, I take a slightly more optimistic view of the position into which the Minister has put himself. If this particular Minister had not been handling the Bill, we might be in a much worse position on this important issue of principle, because he has won the argument that he put before the House about the principle that lies behind the changes. Much as I would prefer things to appear differently in the Bill, I am optimistic that by making the changes that he proposed we will create an unstoppable momentum in the implementation of that principle.

Once the power to include deaths in custody is on the face of a piece of primary legislation, at the next inquest that declares an unlawful killing of a young person, or an older person, in custody, there will undoubtedly be an expression of regret by the coroner that Parliament and the Government have not yet brought the measure into force. Indeed, may I gently suggest to my hon. Friend that if the Government’s real aim, which is a significant one, is to allow cultural changes to take place in the management of the Prison Service that would equip it to introduce the measure—most of us accept that those changes are not in place; perhaps they should be, but they are certainly not—he might have more control over the timetable if he set one in advance? In a fairly pleasant debate, he has had a slightly uncomfortable time, but if he does not set a timetable—within months, and certainly within the next year—it will be much more uncomfortable for him to appear on the “Today” programme in the wake of a coroner’s complaint that the legislation has not been enacted, making it impossible to follow up a verdict of unlawful killing.

As soon as we have a new ombudsman with statutory powers, it is hard to imagine that any worthwhile ombudsman will not continually draw
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attention to the failure to commence the legislation or to introduce the principle here, when a particularly tragic case arises. If we had some sense of a timetable to which the Government were publicly committed, it might provide more protection for the management of the Prison Service and more time to adjust than we will otherwise get.

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