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28 Jun 2007 : Column 493

Mr. Sutcliffe: That is not the Government’s intention. During the debate on deaths in custody, the Joint Committee on Human Rights, the Home Affairs Committee and other bodies in the House have made sure that the issue has developed in the way that it has. I am clear that they will continue to ensure that the issue is dealt with. It is my fervent belief that we need to give the prisons and probation ombudsman the opportunity to develop his role and we also want to strengthen the forum for preventing deaths in custody. Other issues may flow from those two arrangements and they may affect the issue even further.

It is not the Government’s intention to condone or protect circumstances in which there are serious failings in the management of custody. The issue is about the appropriate application of a new criminal offence. The Bill recognises that there are difficult decisions to be taken about the application of the new offence to the operation of public services. That position was debated at length in proceedings in this House and in the other place. This House has supported excluding the exercise of a number of public responsibilities from the scope of the offence. It is therefore an overstatement to say that equality before the law demands the application of the offence to those in custody. Accountability for the exercise of public functions raises difficult and complex issues. The forums for investigating and holding to account those responsible for public responsibilities, including the management of custody, recognise this.

The Government have been prepared to meet concerns that the offence should apply to custody by opening the door clearly in the Bill to that being the case. That is a serious acknowledgement of the issues here and accepts clearly the principle of the offence applying. However, this issue must also be seen in the wider context of lifting Crown immunity. Applying the new offence to Government Departments brings with it considerable uncertainty. How these bodies discharge their public responsibilities is intimately bound up with wider questions of public policy.

It is tempting to consider that faults in the management chain and operational matters can be isolated from the organisational context within which they occurred. In practice, that is a difficult distinction to make and, in the exercise of public responsibilities, the systems and processes by which an activity is managed can involve fundamental questions of policy, not least in relation to the allocation of resources. Those matters need to be answered for politically.

On one view, that is a reason for not lifting Crown immunity or at least never extending the offence beyond the sorts of duties already set out in the Bill. We have taken considerable steps beyond that by accepting in principle the application of the offence to the management of custody. However, there must be an opportunity for Departments, investigators and the courts to become familiar with the concept of criminal liability for Crown bodies in areas such as employer and occupier responsibilities before looking to apply this sort of offence to the discharge of public functions any more widely than the Bill currently allows. That will also provide time for the changes to the ombudsman’s powers to become established and for the forum for preventing deaths to be further developed,
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and time to consider how the wider application of the offence will operate alongside those changes.

I cannot set out the timetable today and the right approach to acknowledging the uncertainty is to include a power in the Bill to extend the offence. There can be no doubt that Parliament envisaged the application of the offence to custody—the principle of that is accepted, but the exact timing is not. There will be a considerable opportunity to question the Government on the matter: for example, through the Select Committees. The Home Affairs Committee and the Joint Committee on Human Rights have demonstrated their interest so far. Our proposals for putting the prisons and probation ombudsman on a statutory footing include provision for publishing and laying before Parliament various reports. That will provide a new source of information on the management of custody.

Mr. Grieve: The Minister knows the reality: implementation by statutory instrument is a matter wholly at the discretion of the Government of the day. No Member of Parliament can introduce the statutory instrument to try to force the Government’s hand. If we lose this opportunity—there are many caveats from the Minister about when the measure might be introduced—is it not the case that we will be taking something on a promise that looks even more remote today than when we last considered the matter?

Mr. Sutcliffe: Again, I understand the hon. Gentleman’s point of view, but I do not agree with it. Clearly, the House should consider the matter in the round and think about what we have tried to achieve. We are in a difficult position. Many organisations and bodies want to see the Bill enacted and it will be sad if the movement that the Government have made is not acknowledged and if the other place continues to reject what we are saying. That will not help people in terms of resolving the issues around deaths in custody and it will certainly not reflect the main inspiration for the Bill.

Mr. Davey: Why should private sector organisations have no timetable for changing their processes to prepare for the offence, when public sector bodies—in this case, the Prison Service—have carte blanche and may never even have to face up to the measures? Are public sector managers in the Prison Service so much more inefficient and incompetent than private sector managers? Will the Minister explain the logic of that to the House?

12.45 pm

Mr. Sutcliffe: That is entirely wrong. The hon. Gentleman has not looked at the core of the issue. This is about public functions. The Government are lifting Crown immunity—that has never been done before—where the Crown operates as an employer and an occupier. There are other ways to inspect the way that public policy is outlined. I have explained that in previous discussions. He is quite right to talk about the private sector. One of the reasons for applying the offence to the private sector was to read across to what we needed to do in the public sector. That was the motivation for removing Crown immunity.

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I understand the passion around the issue of deaths in custody and we all agree that we have to try to find ways to prevent those deaths. The Government have set out a way of doing that. Opposition Members underestimate the powers of Select Committees and other bodies to continue to pressurise the Government in the future. I want to make sure that we do not compromise a complex situation that involves the relationship between public policy and organisational matters.

We have made two changes to the amendments in lieu since they were last considered. First, there is a change to address a point raised by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) in our previous debate. He was concerned at the inclusion of the scope—in subsection (2) of the proposed power to extend the offence—to specify exemptions to the forms of custody to which the offence would extend. I undertook to consider that point. As I said, I have always tried to address matters of concern where possible and we have removed the ability to specify exemptions.

It will remain necessary for the order to set out the forms of custody to which the offence extends. It is right that that should be the case. There are a number of technical points that are not adequately addressed in the amendments proposed by the other place. In the context of an order-making power, it is right that the exact description of custody should appear in the order itself, but there will not be the scope to specify exemptions.

Mr. Grieve: I am grateful that the Minister has taken on board the points raised by my right hon. and learned Friend the Member for Sleaford and North Hykeham, but is not the reality of the wording that it would be open to the Government to introduce the measure in relation to certain sorts of custody, but not to others—if they were minded to do so? That is how I read the amendment. Clearly, the Lords intended the introduction to apply to all forms of custody. I am sure that the Minister will appreciate that that may make some Members a little nervous about the direction in which the Government are going.

Mr. Sutcliffe: Hon. Members cannot have it all ways. The right hon. and learned Member for Sleaford and North Hykeham asked us to reflect on the matter. We have done that and we think that we have hit on the right way forward. This is not an attempt to deal with the matter in an underhand way; it is a genuine attempt to meet the requirements of the right hon. and learned Gentleman. I hope that the hon. Member for Beaconsfield (Mr. Grieve) will accept that.

Secondly, changes have been made to make it clear that the definition of “premises” in subsection (1) of the power is the same as the definition in clause 2. That definition will now appear in the wider interpretation clause that is inserted by amendments made in the other place.

This is an important Bill that will strengthen the law and make sure that organisations have strong health and safety policies. I hope that the other place and Members in this House recognise the lengths to which
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the Government have gone to try to address the points raised on both sides of the House. I hope that hon. Members will support us today.

Mr. Grieve: I am always pleased to see the Minister at the Dispatch Box, but I am rather sorry to hear what he has to say. There is plainly a wide measure of agreement in this House and the other place concerning this matter. We are all in agreement—the Minister has reiterated this today—that the issue of deaths in custody is serious. It could not be anything other than that. There were some 2,000 deaths in custody between 1995 and 2005. Unfortunately, not a year goes by—sometimes I think not a month goes by—without our hearing of another example that gives rise to concern.

I have no doubt that the vast majority of the deaths are nobody’s fault, but, from time to time, there is pretty clear evidence that a death may be the result of neglect of a kind that would not give rise to any personal criminal liability by an individual, but that would certainly fall within the scope of what the Bill is intended to consider. There may well be corporate failures within the Prison Service or other organisations that have allowed such a death to occur.

Mr. Edward Garnier (Harborough) (Con): The problem that my hon. Friend outlines is going to get worse tomorrow, because the Government, under their chaotic arrangements for dealing with overcrowding in prisons, are going to release thousands of inmates back on to the streets, without supervision or assessment. Many of them will be drug addicts. While in prison, they have been cared for by the Prison Service and the health service, but once they are released—if they are released when they are still suffering from drug addiction—many of them could come to untimely ends as a consequence of the lack of care. Does he accept that the Prison Service’s duty of care covers not only the period during which those people are in custody, but must foreseeably extend to a situation in which it releases unsuitable people who are affected by drugs on to the streets from within its care?

Mr. Grieve: My hon. and learned Friend makes an interesting point, although it pushes the bounds of what can be foreseen a little. I am not sure that I wish to encourage his line of reasoning because it might make it even less likely that the Government will extend the corporate manslaughter offence to the Prison Service.

In the context of prisons, I have always thought that the main scope of the offence was the care delivered in the prison system. However, my hon. and learned Friend makes a perfectly fair point. Someone who was known to be a serious suicide risk might suddenly be thrown out of the prison hospital wing one morning. If no provision had been made for their care after release and the first thing that they did was to throw themselves under a railway train at the nearest station, that could give rise to interesting legal and factual arguments about the possible extension of the duty of care. I accept what my hon. and learned Friend says. From his experience of visiting prisons in his capacity as our prisons and criminal justice spokesman, he
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knows only too well the worrying fact that an overcrowded Prison Service is poor at delivering care to the most vulnerable.

That live issue is one of the reasons why we believe that the corporate manslaughter offence should be extended to protect people in custody. The Government appear to have accepted that principle, albeit not without considerable argument, and that was the major concession made by the Minister in one of our ping-pong sessions. However, rather than following the logic of his argument of saying that the Prison Service will need time to prepare for the change, the Minister hides behind the statement that the system will be introduced by statutory instrument as and when the Government think that everything is ready.

The Government pride themselves on target setting. The old Government—I suspect that the same will be true of the new Government because the new Prime Minister seems to be as wedded to this as anyone—said that they liked targets because they enforced discipline. Ministers have proudly said at the Dispatch Box that the Government will be able to match targets for the implementation of measures. Why, therefore, will not the Minister pick a reasonable target for changing the culture in the Prison Service and elsewhere so that a full assessment can be made of the response to the measure, which, as the Minister concedes, is entirely justified?

I realise that we are in times of change. The new Prime Minister has a reputation in the press—perhaps it is grossly unfair—of being a little curmudgeonly. Here is his opportunity, with his new vision for Britain, to take a grip of government and take a different stand. I mean that seriously. Conservative Members are looking to him to show leadership on a matter on which there is much cross-party consensus. When the Minister has the opportunity to see the new Prime Minister, I hope that he will point out to him the extent of the disquiet in the House and what we are seeking.

I am not sure whether we have a new Home Secretary yet, or whether he is moving from ministerial substance into ministerial ectoplasm. However, it appeared that he was a serious impediment to the implementation of the proposals. As he is vanishing into thin air as I speak, this must be a tremendous opportunity—I had rather hoped that the Minister would have been in a position to grasp it with both hands today—for the Government to shift by saying that they accept that such a timetable would be possible. If that happened, we could all congratulate ourselves mutually and go away, which is what I want to happen.

This might be a little premature. I am conscious that doors are swinging as people go in and out of No. 10 Downing street. There has not been time to present new Ministers with their briefs. The Minister is probably not quite sure what his post will be in 24 hours. All that makes life very difficult, but it is all the more reason why we should ensure that this issue is kept live so that we can come back to it next week and the week after. I am confident that the other place, on a cross-party basis, is resolute on this matter and will not let it drop, given that the Government’s explanations for their position on the implementation of the amendments have been really incoherent.

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My children are now growing up, but when they were little, they used to engage in distraction when one wished to scold them for doing something wrong. They would introduce a new argument, or something would happen, to distract one from the main issue. The Minister has been doing such a thing rather well. We have been told about systems and given promises of reform in the future, even though there are absolutely no assurances that we will get it. I even detected that it was vaguely suggested in the other place that the Lords amendments might not work quite as intended. If that is the case, the ball is firmly in the Minister’s court because the Government would have not the slightest difficulty curing that problem, if they wished to do so.

I am sorry that we are again not succeeding in making progress. The Bill will continue to go backwards and forwards. It has been pointed out that unless the time period is extended, the Bill has until 19 July. If the Government wish to continue the argument, they can extend the time allowed until the end of the parliamentary Session. If they do so, I will be only too happy to come back to the Dispatch Box to debate the matter further with the Minister because as long as it is alive, there is some hope that we will reach the outcome that everyone in the Chamber—including, I strongly suspect, the Minister—would like to see.

I hope that reasonableness will prevail. The Minister will not be surprised to hear that we cannot support the Government’s motion. However, whatever happens in the Division, I hope, if the Minister is not promoted, that he will give us his benevolent presence again in the Chamber and that we can reach the happy moment when we agree that we have a sensible timetable and target so that protection for some of the most vulnerable members of our society will finally be provided in a completely reasonable fashion.

Mr. Winnick: The Bill is an excellent measure and the sort of legislation that one would expect from a Labour Government. I congratulate my hon. Friend the Minister on the progress and concessions that have been made as a result of debates here and in the other place. However, through no fault of his own—presumably, he does not make the decisions on these matters—the principle of addressing death in custody has not been put into effect. If the death of prisoners was relatively unknown and a minor matter, one could understand the Government’s position. However, some pretty tragic cases have been cited by Lord Ramsbotham, the former chief inspector of prisons who tabled the Lords amendments. I find it difficult to understand for the life of me why the Government will not go a step further. As we have heard, there is no doubt that the principle has been accepted. Why should the Bill become an Act without covering those who die in custody? Even at this very late stage, I hope that the matter will be given further consideration.

I have no doubt that the Government will not have a problem getting a majority at the conclusion of this debate. There will be no rebellion. I will probably vote with the Government, albeit with much hesitation. Government Members often ration the number of times that they vote against the Government or abstain. I certainly do so, although I am not sure whether it is appreciated by the Whips. I am very conscious of my responsibilities as a Member. As I said
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in an intervention, I read with considerable care the arguments put forward on Monday in the House of Lords, and they seem to be compelling arguments to which it would be difficult to object. I have not the slightest doubt that if we were on the Opposition Benches, we would make precisely the sort of speech that the hon. Member for Beaconsfield (Mr. Grieve) made, but of course it is quite likely that if we had a Conservative Government, the Bill that we are debating would not have been introduced.

As I have said, I am saddened and disappointed. I believe that the Government should go further, and that the Lords were right. I would not be surprised if they insisted on their amendments and the Bill came back before us once again.

1 pm

Mr. Davey: The hon. Member for Walsall, North (Mr. Winnick) joins the long line of distinguished Labour Back Benchers who are contributing to the cross-party support for our argument with the Government. In a way, he has done so in order to try to push the Minister to where the hon. Gentleman and I believe the Minister wants to go. Debate on the Bill and on the issue that we are discussing has been of high quality. The arguments have been put forward clearly, but today the Minister has yet again not come forward with a strong argument for his position. We have heard a number of arguments about the process, and they have all been destroyed, both in this place and the other place. They really do not stand analysis.

One particular argument, which is out of tenor with the other arguments that have been made, has been heard outside this place, and Members of the Commons and the other place have been lobbied on it. It is the idea that those of us who support including provisions on deaths in custody in the legislation are somehow trying to kill the Bill. That is absurd and completely wrong, and anyone who has seen the way in which Conservative, Liberal Democrat and Labour Members have supported the Government’s overall thrust throughout the Bill’s progress knows it to be wrong. Only one group of people can kill the Bill, and that is the Government. They need to listen to Parliament, and to arguments by Members of all parties, in this place and the other place. If they refuse to do that, they will kill the Bill.

I find it quite shameful that there has been pressure from outside bodies that rightly want the Bill, and which know that all parties in the House want the Bill, but are trying to suggest that we are behaving poorly by pushing the Government on the issue. We are behaving in exactly the right way. We are behaving as a democratic, open Parliament should behave, and we are flexing our muscles in the only way we can. I believe that this House, and Parliament in general, is not strong enough. It is only on rare occasions such as this that we can show the Government that they really need to move and listen. As the hon. Member for Beaconsfield (Mr. Grieve) made clear, if we do not include the measure in the Bill now, the chances of having another occasion on which to do it are remote, so we need to win this battle, and the Minister needs to listen.

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