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Sir Robert Smith (West Aberdeenshire and Kincardine) (LD): The right hon. Gentleman said that the coroner would blame Parliament and the Government for not bringing in the legislation. Clearly, Parliament will get the blame if it fails now to insist on a better set of amendments, but if the Government get their way in the future it is they who will be to blame, because only they can initiate the process.
Mr. Denham: Indeed, the Government would get the blame. They would be held responsible when there was an inquest verdict of unlawful killing, and it was impossible to act through the criminal courts on the basis of the Bill because the principle that has now been conceded had not been enacted. For those reasons, I believe that what the Government have conceded is a very real gain for the House, and for the process of scrutiny that we have undertaken.
Like my hon. Friend the Member for Hendon (Mr. Dismore), I think that an indicative timetable would be usefuland might even be sensible from the Ministers point of view, although I recognise that he is acting today within the constraints that he has been able to achieve so far. I shall support my hon. Friend in the Lobby because I believe that he has in effect created, in a somewhat messy way, the result that most of us have sought to achieve. I support him for the immense efforts that he has made to achieve that result.
Mr. Hogg: It is a pleasure to follow the right hon. Member for Southampton, Itchen (Mr. Denham). He made a sound pointthat in the event of a very serious death in custody occurring, the Government will be severely blamed if they have not implemented the provisions of the enacting clause. I want, however, to make a slightly different pointindeed, two or three points, but I shall be brief, as I know that my right hon. Friend the Member for Wokingham (Mr. Redwood) wishes to speak as well.
It would be churlish not to acknowledge that the Government have made a concession, but it is not a concession which, in my view, goes nearly far enough, nor is it a complete concession on the matters of principle, although it makes some concession on principle. We must begin with the proposition that those in custody are a particularly vulnerable group. I speak as somebody who has served as a special constable, as Under-Secretary of State with responsibility for the Prison Service, as Under-Secretary of State with responsibility for the police service, and as somebody practising the criminal law now.
I know that power is abused. I know, too, that on occasion prison officers and police officers use excessive force, and that injury and death follow that use of excessive force. It is wholly wrong in principle that the public sector should be protected from the kinds of liability that we impose upon the private sector. I make the point again that those in custody are
a particularly vulnerable group, and most people tend to avert their eyes from what happens in prisons and police cells. They should not.
Let us deal with the concession. First, there is no certainty that the Government will implement the power that they have given themselves. The Minister used the word if on this occasion, and he was good enough to confirm that if means if, not necessarily when, so there is no certainty that the power will be implemented. Secondly, one is entitled to ask in respect of what institutions the power will be implemented, if it is implemented. The House will have noticed from proposed new subsection (5A)(a) that it is a power in respect of
any specified form of custody or detention.
In their amendments the Lords specified the institutions to be treated as institutions of custody. The Government have given themselves a power to limit the institutions to which the Lords amendments apply. That is an extremely limiting power, which could constrain their concession to a very high degree.
I have already made the point, with regard to new subsection (5B), that the Government have given themselves the power to specify exceptions to the liability imposed by the Bill, so not only are they not committed to implementing the power at all, but they are not committed to implementing it in respect of the classes of institution to which the Lords want it to apply. Furthermore, they can limit the degree of liability by invoking subsection (5B). In practice, therefore, the compromise is very limited. It is no concession at all, unless the Government want to make it a concession.
If the Government introduce the statutory instrument, let us be under no illusion that we will have any part to play. We will not be able to say that the classes of custody to which the liability attaches should be extended, or that the restrictions on liability are unreasonable and unfair. It is true that the affirmative procedure will be used, but we should always remember that affirmative resolutions are not amendable. The concession is therefore pretty poor. My strong advice to the House is to stand firm and express the hope that the other place will stand by its principles and stick by its amendments.
The House needs to remind itself of the magnitude of the problem. In the last three years of the Conservative Government1995 to 1997there were 116, 122 and 122 deaths in custody in England and Wales. In the most recent three years under this Government for which we have figuresthe years up to and including 2005there were 183, 206 and 174 deaths in custody, which amounts to an increase of more than 50 per cent. That should be of considerable concern to all Members of the House, and particularly to the Ministers responsible for the system. That is why many Opposition Members are reluctant for this area to be excluded so dramatically and prominently when the Bill takes steps to make other parts of the public sector, at least in part, more responsible.
Mr. Denham: Will the right hon. Gentleman confirm, however, that none of us has ever suggested that the great majority of deaths in custody would be subject to corporate manslaughter legislation? Only that small number of cases in which gross negligence has occurred at a managerial level would be caught.
Mr. Redwood: Of course, when I say that those cases could be covered by the legislation, that would be with a view to investigating whether theproperly stringenttests in the legislation were met. One hopes that that would be so in no case, or in very few cases, because this is a serious matter. In an intervention on the Minister, I said that I feared that the 5,890 deaths in 2005 from MRSA and C. difficile in hospitals would be excluded, and he seemed to agree. There is some legal feeling, however, that all those might be able to be investigated. Again, one hopes that none, or very few, would result in that kind of prosecution.
Mr. Redwood: I am grateful for that clarification and reassurance. Deaths in custody are therefore among the biggest groups of deaths happening anywhere in the country, under any organisation, for which one would hope that that facility in the legislation would be available, if, in extreme cases, it were found that a case could be brought though the court system. It behoves the Government to lead by example in such sensitive territory, and to show that they, their staff and agents have nothing to hide by making sure that they and the private sector are covered in a similar way.
In an intervention, the Minister also kindly confirmed that, as the supporting documentation to the Bill states, the Government think that there would be only 10 to 13 cases a year. I asked specifically about the private sector, and he seemed to confirm that all those cases were thought to be in the private sector. Therefore, he clearly believes that of all those other cases that could potentially be examined in the public sector, none would produce a prosecution. That might be a convenient fiction for a Government Minister, for obvious reasons, but one would assume that a few more cases might arise if the whole public sector were included in a fair and level playing field with the private sector. My view of the figure work in the supporting documentation is therefore a little at variance with the Ministers.
Like many Members of the House, I hope that not many cases would result in such serious prosecutions, but the fact that the facility was available would certainly help to concentrate the minds of the public sector agents involved, as surely as the intention of the House is to concentrate the minds of the private sector agents involved, because we take death by gross negligence very seriously, for obvious reasons.
I hope that the Minister will think again. I agree with what my right hon. and hon. Friends said about the need, if this is indeed a proper concession, for a clear timetable. I, too, would be grateful if the Minister would confirm that the Government are not intending to use the facilities in clause 5 to dilute this measure should they eventually get round to implementing it for
deaths in custody. There are too many deaths in custody, and this is just one way among many in which we might be able to improve things a little.
Mr. Sutcliffe: I am grateful to hon. Members on both sides of the House for their well-held views on this issue. The Bill has been a long time in coming. I am grateful for Opposition Members kind remarks about its progress, although I do not know what that will do for ministerial careers.
Hon. Members will recognise that the Government have listened all the way through the Bills passage. We have accepted many of the proposals that were put to us in Committee. We have tried to improve the Bill and make it user friendly in terms of the matters that have been put to us. However, there comes a time when there must be a difference of opinion. I believe that the move that the Government have made in accepting the principle that deaths in custody should be in the Bill is a significant step, but hon. Members do not think that it goes far enough. We would not have gone down that route if we intended that the power should never be exercised. However, we are not prepared to set a timetable for that occurrence, because of the significant measures that we have put in place in relation to the two other elements of the compromise.
The right hon. Member for Wokingham (Mr. Redwood) asked whether this would relate only to the private sector. No, it would not. The figures are across the board and apply to both the public and the private sector.
On the point raised by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), the power to specify exemptions when extending the provisions to custody is not new, as it existed in the previous amendment. We are trying to add a power to disapply exemptions, such as those relating to exclusively public functions. That is necessary to give proper effect to extending clause 2 to custodial duties. We thought that we were improving the situation, but if we have not done so we will need to take another look. This is not about watering down or adding exemptions.
It is important that the concessions bed down, and that we are in a position to monitor them as they take effect. Death in custody is a very serious issue, and I do not want to move away from that. I pay tribute to the work that the Prison Service is doing in trying to avoid deaths in custody. The various stakeholders who are involved in the forum take such matters seriously. Clearly, it is distressing for all concerned that deaths in custody take place.
This issue is not to do with the Home Secretary or the Lord Chancellor. The Governments position is that we have listened and brought the concession forward, and that the concession is enough at this stage. Hon. Members should look at this in the round. We are as resolute as the other House in terms of where we are now. We are in a difficult position as regards the remaining time scale for the Bill. I hope that the other House and this House recognise that the Government have come a long way, and that they will support us in our endeavour. I do not want to return to this time and again. I hope that we can find a way forward and that people will accept that compromise has been reached. I support the amendments in the Governments name.
Question put, That this House insists on its disagreement with the Lords in their amendments Nos. 2, 3, 5, 6 and 10, does not insist on its amendment 10A in lieu thereof, and proposes amendments (a) and (b) in lieu of the Lords amendments.
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