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4.45 pm

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 useful—and might even be sensible from the Minister’s 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 point—that 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 point—indeed, 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
5 Jun 2007 : Column 159
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

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.

Mr. Redwood: I support the comments of my hon. Friend the Member for Beaconsfield (Mr. Grieve) and my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg).

The House needs to remind itself of the magnitude of the problem. In the last three years of the Conservative Government—1995 to 1997—there 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 figures—the years up to and including 2005—there 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.


5 Jun 2007 : Column 160

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 the—properly stringent—tests 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. Sutcliffe: To reassure the right hon. Gentleman, I can tell him that if it could be proved that criminal negligence took place, such cases would not be exempt.

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 Minister’s.

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
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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 Bill’s 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.

Mr. Hogg: Nevertheless, the Minister also has powers to limit the liability to particular classes of institution.

Mr. Sutcliffe: I am happy to look at that again. It is certainly not our intention to limit or to water down. We had a good debate in Committee about the exemptions that we wanted to apply.

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.

On the timetable for the prisons and probation ombudsman, we cannot pre-empt the Queen’s Speech, but those powers will certainly be included in the next available legislation.


5 Jun 2007 : Column 162

This issue is not to do with the Home Secretary or the Lord Chancellor. The Government’s 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 Government’s 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.

The House proceeded to a Division.

Mr. Deputy Speaker (Sir Alan Haselhurst): I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.


The House having divided: Ayes 266, Noes 210.
Division No. 132]
[4.59 pm



AYES


Abbott, Ms Diane
Ainsworth, rh Mr. Bob
Anderson, Mr. David
Anderson, Janet
Atkins, Charlotte
Austin, Mr. Ian
Bailey, Mr. Adrian
Baird, Vera
Banks, Gordon
Barlow, Ms Celia
Barron, rh Mr. Kevin
Battle, rh John
Bayley, Hugh
Beckett, rh Margaret
Benn, rh Hilary
Berry, Roger
Betts, Mr. Clive
Blackman-Woods, Dr. Roberta
Blears, rh Hazel
Blizzard, Mr. Bob
Blunkett, rh Mr. David
Bradshaw, Mr. Ben
Brennan, Kevin
Brown, Lyn
Brown, rh Mr. Nicholas
Bryant, Chris
Buck, Ms Karen
Burden, Richard
Burgon, Colin
Burnham, Andy
Butler, Ms Dawn
Byers, rh Mr. Stephen
Byrne, Mr. Liam
Cairns, David
Campbell, Mr. Alan
Campbell, Mr. Ronnie
Caton, Mr. Martin
Cawsey, Mr. Ian
Challen, Colin
Chapman, Ben
Chaytor, Mr. David
Clapham, Mr. Michael
Clark, Ms Katy
Clarke, rh Mr. Charles
Clarke, rh Mr. Tom
Clelland, Mr. David
Clwyd, rh Ann
Coaker, Mr. Vernon
Connarty, Michael
Cook, Frank
Cooper, Rosie
Cooper, Yvette
Corbyn, Jeremy
Cousins, Jim
Creagh, Mary
Cryer, Mrs. Ann
Cummings, John
Cunningham, Mr. Jim
Cunningham, Tony
Curtis-Thomas, Mrs. Claire
Darling, rh Mr. Alistair
David, Mr. Wayne
Davidson, Mr. Ian
Davies, Mr. Dai
Dean, Mrs. Janet
Denham, rh Mr. John
Devine, Mr. Jim
Dismore, Mr. Andrew
Dobbin, Jim
Dobson, rh Frank
Donohoe, Mr. Brian H.
Doran, Mr. Frank
Dowd, Jim
Dunwoody, Mrs. Gwyneth
Eagle, Angela
Efford, Clive
Ellman, Mrs. Louise
Farrelly, Paul
Field, rh Mr. Frank
Fisher, Mark

Fitzpatrick, Jim
Flint, Caroline
Follett, Barbara
Foster, Mr. Michael (Worcester)
Gerrard, Mr. Neil
Gibson, Dr. Ian
Godsiff, Mr. Roger
Goodman, Helen
Griffith, Nia
Griffiths, Nigel
Grogan, Mr. John
Gwynne, Andrew
Hall, Mr. Mike
Hall, Patrick
Hanson, rh Mr. David
Harman, rh Ms Harriet
Harris, Mr. Tom
Healey, John
Hendrick, Mr. Mark
Hepburn, Mr. Stephen
Heppell, Mr. John
Hesford, Stephen
Hewitt, rh Ms Patricia
Heyes, David
Hill, rh Keith
Hillier, Meg
Hodge, rh Margaret
Hodgson, Mrs. Sharon
Hoon, rh Mr. Geoffrey
Howarth, rh Mr. George
Howells, Dr. Kim
Hoyle, Mr. Lindsay
Hughes, rh Beverley
Hutton, rh Mr. John
Iddon, Dr. Brian
Illsley, Mr. Eric
Ingram, rh Mr. Adam
Irranca-Davies, Huw
Jackson, Glenda
James, Mrs. Siân C.
Johnson, Ms Diana R.
Jones, Helen
Jones, Mr. Kevan
Jones, Lynne
Jones, Mr. Martyn
Jowell, rh Tessa
Joyce, Mr. Eric
Kaufman, rh Sir Gerald
Keeble, Ms Sally
Keeley, Barbara
Keen, Alan
Keen, Ann
Kelly, rh Ruth
Kemp, Mr. Fraser
Kennedy, rh Jane
Khan, Mr. Sadiq
Kidney, Mr. David
Kilfoyle, Mr. Peter
Knight, Jim
Kumar, Dr. Ashok
Lammy, Mr. David
Lazarowicz, Mark
Lepper, David
Levitt, Tom
Lewis, Mr. Ivan
Lloyd, Tony
Love, Mr. Andrew
MacShane, rh Mr. Denis
Mactaggart, Fiona
Mahmood, Mr. Khalid
Malik, Mr. Shahid
Mallaber, Judy
Marris, Rob
Marsden, Mr. Gordon
Marshall-Andrews, Mr. Robert
Martlew, Mr. Eric
McAvoy, rh Mr. Thomas
McCabe, Steve
McCarthy, Kerry
McCarthy-Fry, Sarah
McDonagh, Siobhain
McFadden, Mr. Pat
McFall, rh John
McGovern, Mr. Jim
McGuire, Mrs. Anne
McIsaac, Shona
McKechin, Ann
McNulty, Mr. Tony
Meacher, rh Mr. Michael
Merron, Gillian
Milburn, rh Mr. Alan
Miller, Andrew
Mitchell, Mr. Austin
Moffat, Anne
Moffatt, Laura
Mole, Chris
Moon, Mrs. Madeleine
Moran, Margaret
Morden, Jessica
Morley, rh Mr. Elliot
Mudie, Mr. George
Mullin, Mr. Chris
Munn, Meg
Murphy, Mr. Denis
Murphy, Mr. Jim
Murphy, rh Mr. Paul
Naysmith, Dr. Doug
Norris, Dan
O'Brien, Mr. Mike
Olner, Mr. Bill
Osborne, Sandra
Palmer, Dr. Nick
Pearson, Ian
Plaskitt, Mr. James
Pound, Stephen
Prentice, Bridget
Prentice, Mr. Gordon
Prosser, Gwyn
Purnell, James
Raynsford, rh Mr. Nick
Reed, Mr. Andy
Reed, Mr. Jamie
Reid, rh John
Riordan, Mrs. Linda
Robertson, John
Robinson, Mr. Geoffrey
Roy, Mr. Frank
Ruane, Chris
Ruddock, Joan
Russell, Christine
Ryan, Joan
Salter, Martin
Seabeck, Alison
Shaw, Jonathan
Sheerman, Mr. Barry
Sheridan, Jim
Simpson, Alan
Singh, Mr. Marsha
Skinner, Mr. Dennis
Slaughter, Mr. Andy
Smith, rh Mr. Andrew
Smith, Ms Angela C. (Sheffield, Hillsborough)

Smith, Angela E. (Basildon)
Smith, Geraldine
Smith, rh Jacqui
Snelgrove, Anne
Soulsby, Sir Peter
Spellar, rh Mr. John
Starkey, Dr. Phyllis
Stewart, Ian
Stoate, Dr. Howard
Strang, rh Dr. Gavin
Straw, rh Mr. Jack
Stringer, Graham
Sutcliffe, Mr. Gerry
Tami, Mark
Taylor, Ms Dari
Taylor, David
Thomas, Mr. Gareth
Thornberry, Emily
Timms, rh Mr. Stephen
Tipping, Paddy
Todd, Mr. Mark
Touhig, rh Mr. Don
Trickett, Jon
Truswell, Mr. Paul
Turner, Mr. Neil
Twigg, Derek
Ussher, Kitty
Vaz, rh Keith
Walley, Joan
Waltho, Lynda
Watts, Mr. Dave
Whitehead, Dr. Alan
Wicks, Malcolm
Williams, rh Mr. Alan
Wills, Mr. Michael
Winnick, Mr. David
Winterton, rh Ms Rosie
Woodward, Mr. Shaun
Woolas, Mr. Phil
Wright, Mr. Anthony
Wright, David
Wright, Mr. Iain
Wright, Dr. Tony
Wyatt, Derek
Tellers for the Ayes:

Liz Blackman and
Claire Ward
NOES


Afriyie, Adam
Ainsworth, Mr. Peter
Alexander, Danny
Amess, Mr. David
Ancram, rh Mr. Michael
Atkinson, Mr. Peter
Bacon, Mr. Richard
Baker, Norman
Baldry, Tony
Barker, Gregory
Baron, Mr. John
Barrett, John
Beith, rh Mr. Alan
Bellingham, Mr. Henry
Benyon, Mr. Richard
Bercow, John
Beresford, Sir Paul
Binley, Mr. Brian
Blunt, Mr. Crispin
Bone, Mr. Peter
Boswell, Mr. Tim
Bottomley, Peter
Brady, Mr. Graham
Brake, Tom
Brazier, Mr. Julian
Brokenshire, James
Brooke, Annette
Browne, Mr. Jeremy
Browning, Angela
Bruce, rh Malcolm
Burns, Mr. Simon
Burrowes, Mr. David
Burstow, Mr. Paul
Burt, Lorely
Butterfill, Sir John
Cable, Dr. Vincent
Cameron, rh Mr. David
Campbell, rh Sir Menzies
Carmichael, Mr. Alistair
Carswell, Mr. Douglas
Cash, Mr. William
Clark, Greg
Clarke, rh Mr. Kenneth
Clegg, Mr. Nick
Clifton-Brown, Mr. Geoffrey
Conway, Derek
Cox, Mr. Geoffrey
Curry, rh Mr. David
Davey, Mr. Edward
Davies, David T.C. (Monmouth)
Davies, Philip
Davies, Mr. Quentin
Davis, rh David (Haltemprice and Howden)
Djanogly, Mr. Jonathan
Dorrell, rh Mr. Stephen
Dorries, Mrs. Nadine
Duncan, Alan
Duncan Smith, rh Mr. Iain
Dunne, Mr. Philip
Ellwood, Mr. Tobias
Evennett, Mr. David
Fabricant, Michael
Fallon, Mr. Michael
Farron, Tim
Featherstone, Lynne
Field, Mr. Mark
Fox, Dr. Liam
Francois, Mr. Mark
Fraser, Mr. Christopher
Gale, Mr. Roger
Garnier, Mr. Edward
Gauke, Mr. David
George, Andrew
Goldsworthy, Julia
Goodman, Mr. Paul
Goodwill, Mr. Robert
Gove, Michael
Grayling, Chris
Green, Damian
Grieve, Mr. Dominic
Hague, rh Mr. William
Hammond, Mr. Philip
Hammond, Stephen
Hands, Mr. Greg
Harris, Dr. Evan
Harvey, Nick

Hayes, Mr. John
Heald, Mr. Oliver
Heath, Mr. David
Hendry, Charles
Herbert, Nick
Hoban, Mr. Mark
Hogg, rh Mr. Douglas
Hollobone, Mr. Philip
Holmes, Paul
Horwood, Martin
Hosie, Stewart
Howard, rh Mr. Michael
Howarth, David
Howarth, Mr. Gerald
Hughes, Simon
Huhne, Chris
Hunt, Mr. Jeremy
Hunter, Mark
Hurd, Mr. Nick
Jackson, Mr. Stewart
Johnson, Mr. Boris
Jones, Mr. David
Kawczynski, Daniel
Key, Robert
Kirkbride, Miss Julie
Knight, rh Mr. Greg
Kramer, Susan
Laing, Mrs. Eleanor
Lait, Mrs. Jacqui
Lamb, Norman
Lansley, Mr. Andrew
Laws, Mr. David
Leech, Mr. John
Leigh, Mr. Edward
Letwin, rh Mr. Oliver
Lewis, Dr. Julian
Lidington, Mr. David
Lilley, rh Mr. Peter
Loughton, Tim
Luff, Peter
Mackay, rh Mr. Andrew
Maclean, rh David
MacNeil, Mr. Angus
Main, Anne
Maples, Mr. John
Maude, rh Mr. Francis
May, rh Mrs. Theresa
McIntosh, Miss Anne
McLoughlin, rh Mr. Patrick
Mercer, Patrick
Miller, Mrs. Maria
Mitchell, Mr. Andrew
Moore, Mr. Michael
Neill, Robert
Newmark, Mr. Brooks
O'Brien, Mr. Stephen
Osborne, Mr. George
Ottaway, Richard
Paice, Mr. James
Paterson, Mr. Owen
Pelling, Mr. Andrew
Penning, Mike
Pickles, Mr. Eric
Price, Adam
Prisk, Mr. Mark
Pugh, Dr. John
Randall, Mr. John
Redwood, rh Mr. John
Rifkind, rh Sir Malcolm
Robathan, Mr. Andrew
Robertson, Angus
Robertson, Hugh
Robertson, Mr. Laurence
Rogerson, Mr. Dan
Rosindell, Andrew
Rowen, Paul
Ruffley, Mr. David
Russell, Bob
Scott, Mr. Lee
Selous, Andrew
Shapps, Grant
Shepherd, Mr. Richard
Simmonds, Mark
Simpson, Mr. Keith
Smith, Sir Robert
Soames, Mr. Nicholas
Spelman, Mrs. Caroline
Spicer, Sir Michael
Spink, Bob
Spring, Mr. Richard
Steen, Mr. Anthony
Streeter, Mr. Gary
Stuart, Mr. Graham
Stunell, Andrew
Swayne, Mr. Desmond
Swinson, Jo
Swire, Mr. Hugo
Syms, Mr. Robert
Tapsell, Sir Peter
Taylor, Matthew
Taylor, Dr. Richard
Thurso, John
Tyrie, Mr. Andrew
Vaizey, Mr. Edward
Vara, Mr. Shailesh
Villiers, Mrs. Theresa
Walker, Mr. Charles
Wallace, Mr. Ben
Waterson, Mr. Nigel
Webb, Steve
Weir, Mr. Mike
Widdecombe, rh Miss Ann
Wiggin, Bill
Willetts, Mr. David
Williams, Mark
Williams, Stephen
Wilson, Mr. Rob
Wilson, Sammy
Winterton, Ann
Winterton, Sir Nicholas
Wishart, Pete
Wright, Jeremy
Yeo, Mr. Tim
Young, rh Sir George
Tellers for the Noes:

Mr. Mark Lancaster and
Angela Watkinson
Question accordingly agreed to.
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