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11 July 2007 : Column 1568

Maria Eagle: The hon. Gentleman is doing his best to provoke Government Front Benchers to engage in tittle-tattle about what he has heard might have gone on last week, following the postponement of a debate. The Government were prepared to consider further the serious issues raised during the course of these debates, which was a sensible course that shows a certain degree of flexibility. There was no agreement of the kind that the hon. Gentleman has speculated upon, and our conclusion was that the movement that had already been made was movement enough. The hon. Gentleman knows that he will not draw me into saying anything further than that.

Mr. Grieve: I would have thought that I could legitimately draw the hon. Lady into indicating where, among those who have custodial charge of individuals, the greatest objections to these proposals lay. That must be a legitimate question of debate, and it seems to me that it does not touch on collective responsibility at all. The Minister can answer that question, and I very much hope that she will do so at the end of the debate, or in response to my interventions or those of other hon. Members.

What I can say to the Minister is this: without the inclusion of deaths in custody, the Bill is seriously flawed. The other place has made its position crystal clear and it is, I believe, going to continue to send the Bill back to this House until reason prevails. The Government’s position is unreasonable. I believe that many loyal Government supporters also believe it to be unreasonable. The Minister’s current position worries me much more than when we first started this ping-pong process, because I am left with the uncomfortable sense that the promise made was an entirely hollow one. I urge the House to support the Lords amendments and to put the Bill on the statute book with deaths in custody included.

Mr. Dismore: I welcome my hon. Friend the Under-Secretary to her place on the Front Bench for this debate. I am afraid that it is rather a difficult job to pick up after such a long gestation.

It is important to recognise the concessions that the Government have made, the most important of which was to extend the Bill to include Crown immunity. I recall our debates over the issue of deaths in custody and I believe that the Government made some significant concessions, which we should acknowledge. The question is whether they go far enough.

The statutory powers of the prisons and probation service ombudsman are now in a Bill before the House, there is the review of the preventing deaths in custody forum, and the Government’s proposals the Bill. Those are all very positive measures and are sufficient, from my point of view, to represent a compromise. Unfortunately, however, we are left with the question of the date. I am afraid that I have to agree with the House of Lords on that—and, indeed, with what the hon. Member for Beaconsfield (Mr. Grieve) had to say about it. I shall support the Government tonight, but with reluctance, because there is strong merit in the argument that we have heard.

To develop my earlier intervention, I would be very surprised if it was the police who raised the objections, as this issue has been floating about for some time. My
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understanding all along was that the police were quite laid back about the extension of the Bill to them. I would be very surprised if their position had changed. The difficulty always was the Prison Service, and I recall that several years ago—long before this Bill came before the House—I had a meeting with the present Attorney-General, in her former guise as a Home Office Minister, to discuss plans for previous legislation. I later learned that everything had fallen apart because of the objections of the Prison Service even then—before we got into the sort of debates that we are conducting now.

I suspect that the problems still emanate from the Prison Service. If so, it is the wrong position for the service to adopt. A well-run prison has nothing to fear from the extension of the provisions covering deaths in custody to the Prison Service. A well-run Prison Service has nothing to fear from that either. The Bill is not about prosecuting people, but about acting as a deterrent to make sure that things are run properly in the first place. We know that the Bill would apply to only a very small number of cases and we hope to see a lever to improve standards, rather than prison managers being prosecuted, which is not the intention.

7.45 pm

If there has been a change, it may be because some people have misunderstood the Bill. It is about not individual liability, but management liability. There is no question of an individual prison officer or police constable facing prosecution under the Bill; the senior management would be held to account. Maybe some of the opposition stems from a misunderstanding of the Bill.

Mr. Bone: I have had representations from a senior manager in the health service who tells me that prison hospitals will be the responsibility of the health service and not the Prison Service, yet she cannot get changes made in prisons and keeps warning the service about that. If death in custody extends to the health service, those involved could be charged when the fault lies with the Prison Service, which has responsibility.

Mr. Dismore: The hon. Gentleman is right and highlights an important anomaly in the Bill. People in custody in a mental institution may not be prisoners—they probably will not have been convicted—but he makes an important point. The examples, while not identical, are similar.

We come now to the question of the date and there are lots of different ways in which this problem could be dealt with. We could change the wording of the Government amendment from “may” to “shall”, which indicates an intention to legislate rather than a permissive power. That would make a significant difference. I would not even press for a date to be in the Bill. We are looking for a target date to which the Government will work to bring the Prison Service up to scratch. It would then know the date by which it has to be sure that it is dealing with the issues properly. A measure tabled along those lines would go a long way towards satisfying the other place. I know that Lord Ramsbotham suggested 1 January 2009, less than 18
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months away. That is a rather ambitious timetable, but Ministers naming the day is more important than the specific date.

My hon. Friend should also resist the suggestion from the other place to extend the deadline for the Bill from 19 or 20 July. Frankly, I cannot see any point in that; either we resolve the issue or we do not, and extending the date will make no difference to the forceful arguments that have been made. We are getting to the constitutional limits of the debate and perhaps if the House finds the Government’s case persuasive—sadly, I do not, but I will support the Government because of the reasonable concessions that have been made—the Lords will accept that the elected Chamber should prevail. The Government may win the vote but I do not think they have won the debate. I hope that even at this late stage, my hon. Friends will seek the sort of compromise that appeared to be on offer before.

Will my hon. Friend the Minister explain what Lord Ramsbotham meant when he said that an offer had been made and then withdrawn? What was that offer and why was it withdrawn? That is a serious point.

Mr. David Heath (Somerton and Frome) (LD): The hon. Member for Hendon (Mr. Dismore) has left us with a constitutional conundrum. He says that the will of this House must prevail and that that requires the confidence of this House in the Government’s arguments. However, he has no confidence in their arguments and yet he will support them to demonstrate the will of the House. That suggests to me that the other place should pay more attention to the arguments in this House than to how it votes.

I should start by welcoming the Minister to her post. I regret that in her first outing she has to put such a tawdry argument to Members. I regret even more the Government’s obstinacy in maintaining a position that has no logical credibility in terms of what they say they want to achieve. It betrays an unfortunate dog-in-the-manger attitude in the face of what has clearly been demonstrated to be broad support for both the Bill’s general principles and the measure under discussion. Many Members felt when the right hon. Member for Airdrie and Shotts (John Reid) set down his heavy burden that there might be an opportunity for progress; we are disappointed that that is not the case.

The Government’s position is to accept the arguments made in all parts of the House that death in custody should be part of the remit of the Bill—and they trumpet that as being a great concession—but then to say that they are not prepared to give any indication of when or if the part of the Bill applying to death in custody will ever be implemented. Therefore, the Government are in the same position as St. Augustine of Hippo—they want to be chaste, but not yet. What is the reason for that delay? What is the conceivable purpose in saying, “We think it is wrong to allow gross negligence of a corporate nature in the management of the prison or police services that results in death in custody when a duty of care should apply, but we will let a few people die in the meantime while we think about whether we will implement this measure?” That is, in stark terms, what the Government are saying. They are saying that they will accept a position where such corporate negligence
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is okay and they will not put a date on the implementation of the death in custody measures.

The point made by the hon. Member for Hendon is important. This is a corporate manslaughter Bill. It is not individuals who will be found wanting in the execution of their duty; it is management, policies and the structures that are in place. For how long must we expect to wait before an adjustment is made so that we have Prison Service policies that do not allow deaths in custody when they can be avoided by better management? What is the obstacle to the Government going ahead at the fastest speed possible to achieve that?

The Government say that they want to send a clear signal to the other place, but a clear signal is being sent to them. They should listen to what Back-Bench Labour Members have had to say, not only tonight but on every occasion. Has a single word been uttered from their Benches in support of their position? No, they have been roundly condemned by every contributor to the debate because their position is absurd.

The statutory basis for a prison ombudsman is welcome, but that measure is in a Bill that is yet to receive its Second Reading and which will be carried over into the next Session, when I am sure that there will be many other issues that will take a long time to discuss. Therefore, that is not an immediate mitigating factor.

We have offered a number of ways in which the Government could discharge their responsibilities in this respect. We have not said that this must be implemented tomorrow, or even next year. We said to the Government to name their date—any date. If they cannot put it in the Bill, they could just name a date in debate. They could say that they intend to ensure that our Prison Service and police service are in a state in which they are no longer grossly negligent in the execution of their duties by whatever date they choose—2009, 2010 or even 2020. If the Government named a date, the House would be satisfied. The obstinate refusal to name a date is what makes people so very irritated with the Government’s position.

I wish to raise one specific issue about the amendment in lieu. I hope that the Minister will explain how we should construe the two parts of amendment (c). It is important that we have a clear statement in subsection (1) of the proposed new clause of the power to extend the meaning of “relevant duty of care”. If that takes precedence over subsection (2), I have no problem. But if subsection (2) is a “however” section, so that even if subsection (1) were to be implemented, it could still be reduced in its effect by the exceptions and exemptions in subsection (2), we are no further forward. Can the Minister confirm that the power to extend is the first principle and that anything within subsection (2) is subordinate to subsection (1)? That is an important point, because it will tell us whether there is doublespeak even within the concessions that the Government propose today. I hope that the Minister will reply to that point.

The Government should have resolved this issue a long time ago. This is an absurd argument and a waste of everybody’s time and effort. The concession has been made, so let us get on with it and get it
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implemented. If the Government cannot do it tonight, surely they will do it at the other end. If we reach 19 July and we still have not resolved the matter, the Government should come back with an extension. That would be absurd and unnecessary, but if it would achieve a resolution of this matter, please let us do it. The best thing we can do is ensure that this Bill, in its entirety, including the duty of care for those in custody, passes through both Houses of Parliament. It could do so tomorrow if the Minister would simply say the right words in responding to this debate.

Mr. Hogg: The Lords are entirely right. Perhaps the House will forgive me if I say that I have a little personal experience of such matters. Many years ago I was a police Minister, and for about 18 months to two years I was Minister for prisons. I have also been a special constable, and for the last 40 years off and on I have practised at the criminal Bar. As I said in an intervention on my hon. Friend the Member for Beaconsfield (Mr. Grieve), on at least two occasions when I was in the cells—once in my capacity as a special constable and again as a criminal barrister—I saw police officers using force of a wholly unacceptable kind. We know that it happens, and I have also dealt in chambers with cases in which unreasonable force was unquestionably used by police officers. When I was prisons Minister, I was very concerned by some of the standards of behaviour and systems that I saw. I am much reinforced in my view by the fact that Lord Ramsbotham, the former inspector of prisons, is such a strong advocate of this provision.

I shall not speak for long, as I know other hon. Members wish to speak, but I wish to make some general points. The first is that prisoners, whether in prisons or police cells, are in an extremely vulnerable position. There is very little outside monitoring and, often, very little outside concern. The truth is that, but for a small community of people, our fellow citizens do not care very much about what happens in prisons or police cells. They put it out of their minds. It is a terrible thing that that should be so, but it is so.

Death or injury in prison or police cells can happen for a variety of reasons. For example, it can happen because of a breakdown in systems. There is the person who is suicidal but not properly watched. There is the person suffering from drug withdrawal whose condition is not properly managed. That constitutes a serious breakdown in the system. Deaths can occur because of dangerous premises—for example, because the authorities, be they the police or the prison authorities, simply have not addressed properly the condition of the premises. Death or injury can occur by reason of the action of fellow prisoners against the deceased person, in cases where the police or the prison authorities should have guarded against that, but did not. Of course, deaths can also occur because police or prison officers act in an irresponsible and gross manner. In that latter category, it is certainly true that the individual officers concerned can be liable under the ordinary principles of common law, but if there has been insufficient supervision, the managers should be responsible as well.

8 pm

Given all that, I ask myself whether there is any reason of principle why public authorities should be
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placed in a different situation from that of private authorities, and I say that there is no difference of principle of any kind. Indeed, this House has a particular duty to ensure that those in custody, and thus in the care of the state, are properly protected.

The Government say that they have come up with a compromise. The truth is that it is no proper compromise. I shall respond briefly to the point made by the hon. Member for Somerton and Frome (Mr. Heath) in that regard, and then I will sit down. There is no indication whatsoever of when the provision will be introduced. I agree with my hon. Friend the Member for Beaconsfield, in that I suspect that it will be a very long time in coming, if it comes at all. Secondly and differently, the hon. Member for Somerton and Frome is right in thinking that subsection (2) enables the Minister to “restrict or disapply” the exceptions. My own belief is that it is an additional and overarching measure that is not subordinate to subsection (1).

The effect of the “compromise”, as it is described, is as follows. First, it does not have to be introduced at all. Secondly, through the application of proposed new subsection (2), the safeguard can be so restricted as to be no proper safeguard. That is no compromise. I have spoken for long enough, and I shall sit down as other Members want to speak.

Mr. Chris Mullin (Sunderland, South) (Lab): I welcome the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston (Maria Eagle), to her place this evening, even though she appears to have drawn the short straw. This is an otherwise thoroughly worthwhile Bill, and although I acknowledge that some progress has been made on this issue, I express disappointment at our being unable to resolve it. There is a great deal of good will in all parts of the House, and no one is making unreasonable demands.

It is hard to think of any good reason why the Prison Service and the police should be indefinitely exempt from the Bill’s provisions. We all understand that there might be transitional difficulties and that some sort of timetable might therefore have to be set. However, we do not understand why it is not possible, as was said earlier, even to refer in debate to the kind of timetable that the Government have in mind, in order to put people’s minds at rest. There is a suspicion that we have reached deadlock and that this is never going to happen unless it happens now. There is no better time than now to set out a timetable.

The problem in a nutshell is that we face a mighty vested interested—certainly in the case of the Prison Service. That mighty vested interest is going to be against its inclusion in the Bill’s provisions now, next year, in five years’ time, in 10 years’ time or whenever the Government get round to trying to include it. Things will change for the better only when we have the political will to face it down. That is what Ministers are for, and what many of us on the Labour Benches are looking to Ministers for. I foresee that this will go on for a very long time, with no satisfactory resolution. I tell Ministers that there is no better time than the present to resolve the issue, at least in terms of setting some sort of timetable.

I shall support the Government in the Lobby tonight, because I want the Bill to go through.
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However, I want to place on record my disappointment that we have not been able to make more progress on the issue.

Mr. Garnier: I agree with what the hon. Members for Sunderland, South (Mr. Mullin) and for Hendon (Mr. Dismore) had to say about the arguments involved, although I am disappointed by their decision as to how they will vote. I think that Ministers would listen all the harder to what they have said, given their separate experience and reputations in this area, if they were to translate their arguments into votes against the Government this evening. I appreciate that that is a difficult thing for them to do, but the risk is worth while on occasions such as this.

I take this opportunity to welcome the Minister to her new post, and the Secretary of State for Justice and Lord Chancellor to his. I have met the Minister of State, Ministry of Justice, the right hon. Member for Delyn (Mr. Hanson), on a previous occasion and, although he may not want my welcome, I shall give it to him nonetheless.

The Minister of State, Ministry of Justice (Mr. David Hanson): We get on fine.

Mr. Garnier: We get on fine, but we would get on better if the Government would pay attention to what is said in the other place.

If the Government have accepted the principle that deaths in custody should come under corporate manslaughter, they should take another look at the Bill. Clause 1(1) describes the offence of corporate manslaughter, stating:


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