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Although this sort of case would now be covered by a category of relevant duty, the test would still be whether a duty of care was owed in the law of negligence. So unless, exceptionally, that were the case, the offence would therefore still not apply—even if, when taken with other amendments, which appears to be the intention, specific exemptions were also removed.

4.30 pm

On the other hand, in reaching a decision on the application of the offence, rather than being able to rely on the categories of relevant duty, investigators and prosecutors would have to rely in greater detail on the law of negligence. That would not assist swift decisions or necessarily foster transparency. Such an approach would also encourage strong pressure on investigators, and potentially speculative prosecutions, on the basis that the courts might be persuaded to move duties of care into what we could describe as novel areas. That would not be helpful.

Clearly, as I have indicated, there is an extent to which this proposal is designed to complement other amendments to the Bill—in particular, those to amend specific exemptions. In some cases, removing an exemption may not be enough because, even where a duty of care is owed, the particular circumstances may not be covered by a relevant category of duty of care. However, until we have considered particular exemptions, that is perhaps to put the cart before the horse. Even as a means of filling in a lacuna of this sort, the proposals appear to represent an unsatisfactory solution in respect of the wider effects that I have identified where it still remains the case that no duty of care is allowed.

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That was a lengthy explanation. I hope that I have persuaded noble Lords that the proposals would not add practical value to the Bill, but would rather introduce a degree of uncertainty. For that reason, I hope that the noble Lord will withdraw the amendment.

Lord Lyell of Markyate: Before my noble friend considers withdrawing the amendment, I am getting worried. Can the Minister indicate clearly when he will tackle the substance of the issues that we are discussing? I thought that we were going to get to it this time. I am worried that we shall slip down through a few more amendments and the Minister will say that he has already covered it. We would all have to go back to read what had been going on to find out whether he had or not; we would almost certainly find that he had not.

The Minister will be familiar with Liberty’s brief, and will no doubt be well briefed on it. I will not read it all, but I remind him of the quotation therein from the Home Affairs Committee and the Work and Pensions Committee in another place, which concluded:

“We are very concerned by the exemption for exclusively public functions and are not convinced by the Government’s arguments for including in the Bill a blanket exemption for deaths resulting from the exercise of public functions. We do not consider that there should be a general exception under this heading since bodies exercising such public functions will still have to satisfy the high threshold of gross breach before a prosecution can take place, namely that the failure must be one that ‘falls far below what could be reasonably expected’”.

Liberty goes on to point out that we should trust the jury, who will recognise that you cannot ask for the entire budget to be spent on an absolute plethora of precautions; there must be balance and proportionality in all these matters. That is of concern to us. One does not want to put public bodies under undue pressure—again, it must be a matter of balance—but the reason for the complete exclusion has not been explained; rather, it has been wriggled around. I hope that the Minister will not regard that as unduly offensive; I am sure that he can clarify this better.

Lord Bassam of Brighton: Of course, I do not think that it was unduly offensive—it was a proper question. In responding to the debate, I was simply suggesting that the exemptions are not as narrowing as noble Lords have assumed them to be. The whole question of the position of public authorities is at the heart and core of the debates on this issue. They are not exclusively Clause 3 issues, although they will come up under Clause 3, and I shall leave it to my noble and learned friend Lord Davidson to respond more fully to that part of the story of the position of public authorities.

Lord Hunt of Wirral: I share my noble and learned friend’s disquiet about the present situation, but we will consider carefully what the Minister has said. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

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Lord Hunt of Wirral moved Amendment No. 26:

Clause 2, page 2, line 29, at end insert—

“(d) a duty owed to anyone held in custody”

The noble Lord said: This group of amendments addresses the issue of deaths in custody caused by gross negligence. In the midst of the other very serious points that we will consider during this Committee, this is without doubt one of the most important. The amendments would ensure that, where an individual died in custody as a result of a gross breach of a duty of care, that individual’s family or loved ones would be entitled to bring a case of corporate manslaughter against the responsible organisation. We have already heard some powerful arguments in this Committee for the simple and noble principle of even-handedness in the application of this legislation. That is a fundamental and important principle, but there is much more to these amendments than that.

The power lawfully to deprive an individual of his or her liberty must be one of the most serious responsibilities there can be. The duty of care owed to an individual in detention, where he cannot act freely in his own interests, is onerous and profound, yet the way in which the Bill is currently ordered suggests that that responsibility is not so regarded by the Government.

We must not forget that the term “custody” does not refer only to people who are in forced detention; it also refers to individuals who have wilfully submitted to custody—for example, in order to receive rehabilitation. In that context, it is appropriate that the Mental Health Bill is being discussed in the Chamber, as I want to refer to the Mental Health Act 1983. In its third report on deaths in custody, the Joint Committee on Human Rights stated at point 48 that the prison population is susceptible to suicide through high rates of mental disorder, younger age and lower socio-economic status. Suicide accounts for a great number of deaths in prison, and it is right that it should come under scrutiny. It is worth noting that Section 127 of the Mental Health Act 1983 makes it a criminal offence to,

“ill-treat or wilfully to neglect”,

a patient receiving treatment for a mental disorder. I should like the Minister to say whether that provision applies to prison hospitals as well. Of course, the parallel with those held in prison or police custody is obvious.

Perhaps I may briefly describe how I expect the package of amendments to work. Amendment No. 26 would extend the duty of care to “anyone held in custody” within the definition of “relevant duty of care” in Clause 2(1)(c). Amendment No. 31 would provide a definition of “custody” for the purposes of interpretation. It includes the lawful detention of any individual within secure mental healthcare facilities, secure children’s homes, secure training centres, immigration removal centres, court cells and police cells, and while under the supervision of court and prisoner and detainee escort services. There may be some scope for extending that list at a later stage to include all rehabilitation care centres and hospitals, where individuals are not detained against their will

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but willingly submit themselves to the care of such an institution. Amendment No. 55 would tie in the extension of the duty of care in Clause 2 with the definition of policing or law enforcement activities in Clause 5(4).

At this juncture, we must ask ourselves why the Government have so far refused to extend the application of the offence—in effect, refused to expose a significant and very critical part of their own responsibilities to the same level of scrutiny as they seek to apply to the private sector. There appear to be three reasons. First, there is the excuse that the current levels of accountability through public inquiry and the electoral process are adequate methods for exposing failings in the system and helping it to improve. On that point, I return to the Minister’s laudable praise of this Bill; he said that it is intended to act as a deterrent that will entrench and improve a culture of safety and go some way towards preventing avoidable death.

As I understand it, the Government say that they hope that there will never be any prosecutions for corporate manslaughter, because the whole Bill will improve the safety culture. I wholeheartedly agree with that, as do many other noble Lords, because we believe that the threat of a conviction, a financial penalty or even, as I have suggested, a negative publicity drive would act as a far greater deterrent than a public inquiry. Furthermore, as every Opposition note to their chagrin, the Government have the power to resist calls for independent public inquiries and have resisted them, in the cases of Zahid Mubarek and Christopher Edwards, all the way up to the Court of Appeal.

It might be appropriate, if members of the Committee will allow me, to refer to the statement of Mr Justice Keith, chairman of the Zahid Mubarek inquiry, on publication of the final report on 29 June 2006. He said:

“Robert Stewart was convicted in November 2000 of the murder of Zahid Mubarek at Feltham Young Offender Institution ... As things unfolded, it became clear to me that while the Prison Service has made many important and well thought out changes to operational policy, there is still much that could be done to reduce the likelihood of prisoners being attacked in their cells, both in young offender institutions and in adult prisons ... Stewart was a prolific offender. He was in custody awaiting trial on harassment charges, having just completed serving his 8th custodial sentence ... He had been diagnosed as suffering from a long-standing deep-seated personality disorder which had deprived him of all sense of conscience. He was regarded as dangerous. His correspondence revealed him to have been an out-and-out racist. And he had a history of disruptive and sometimes bizarre behaviour while in detention. Yet because of a pernicious and dangerous cocktail of poor communications and shoddy work practices, prison staff never got to grips with him ... Understandably, many people have asked how Zahid came to share a cell with someone like Stewart. A core finding of the report is that malevolence was not involved. Stewart arrived on Swallow wing after the prisoners had been locked up for the night. There was one inexperienced officer on duty at the time. The wing already had 59 prisoners. The maximum it could usually hold was 60. The one space available was in the double cell which at that time Zahid was in on his own. That was the obvious place for Stewart to go ... The report spells out the bewildering catalogue of shortcomings, both individual and systemic, at Feltham at the time. I was shocked

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and dismayed by them. I name those members of staff who were in some way to blame for what happened to Zahid. But all this has to be seen in the context of the establishment as a whole. Feltham was identified in the mid-1990s as a prison which was failing on many fronts ... The 6 years which have elapsed since Zahid’s murder have given the Prison Service a real opportunity to address the systemic shortcomings which the attack on him has exposed. Much of what would have been recommended is now in place—or at any rate plans are well advanced for their introduction ... But it is all very well having the proper systems in place. They need to be working properly on the ground. And at present there is a disconnection between aspiration and reality, because insufficient attention has been paid to ‘outcomes rather than processes’. The challenge for the Prison Service is to ensure that its policies and procedures are matched by good practice on the landings and the wings”.

What a terrible story that is.

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The second reason that the Government have cited is that criminal investigations are costly and impose a resource burden on the Crown. I refer the Minister to my amendments, which would enable the court to issue a negative advertising order on a body as punishment for conviction. In the case of public prisons, it might well be appropriate to convict an organisation of corporate manslaughter without recourse to taxpayers’ money. Of course, there is a danger that Ministers would have to take their share of opprobrium in such an instance, but they already do in any case, as one or two of the Minister’s colleagues in another place would be able to confirm. Let us also not forget that many institutions lawfully holding detainees are privately owned and/or run. They are corporations in every sense other than the fact that they act under a government remit.

The third and final defence that Ministers have mustered is that, in the words of the Minister in the other place, the custodial environment deals with difficult people. What with that searing analysis and the Minister’s comment that holding companies should remain exempt by virtue of their odd legal status, I confess that my confidence in the judgment of those on the ministerial Benches is not what it might be.

It seems to me that the Government implicitly believe that some activities should never be questioned by courts, even where a person is killed who would still be alive had an activity not been performed in a grossly negligent manner. Obviously we understand the arguments about theatres of war, emergencies, police training and so on, and there are varying degrees of exemption that we consider to be acceptable. We will come to these when we debate detailed amendments on the armed services and the police force.

I am surprised that the Government are not confident enough to open themselves far more extensively to the judgment of the courts. The Minister in another place made much of the fact that £26 million has been invested in their safe custody programme, which is an admirable initiative. I wonder that they do not feel secure enough about the success of their schemes to allow the courts to do what, in effect, should be done—to approve the system formally. Indeed, the Minister in the other place went much further. In response to the point raised by my honourable friend Mr Dominic Grieve, that there can

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be no philosophical or rational justification for exempting government departments from the possibility of culpability, Gerry Sutcliffe said:

“I understand and agree with what he says about the duty of care”.—[Official Report, Commons, 4/12/06; col. 99.]

Finally, like my noble and learned friend, I remind the Minister where public bodies would stand if we did not accept these amendments. The amendments would provide that where there had been a gross breach of a duty of care and where the management of a body had fallen so far below what can reasonably be expected of an organisation in the circumstances that a death occurred, then—and only then—would that organisation be susceptible to prosecution. I cannot imagine why Ministers would not wish to take the opportunity to demonstrate how confident they are that their organisations would never be guilty of falling far below what can reasonably be expected of them.

My amendments, and those tabled by the noble Lords, Lord Razzall and Lord Lee, address two essential points of first principle underlying the Bill. First, the amendments—including that also in the name of the noble Lord, Lord Ramsbotham—would put all public bodies on an even footing with private bodies. That is important in these circumstances, because there is no reason why the death of an individual in one situation should be considered less of a death, or less deserving of justice, merely because that situation was presided over by government officials as opposed to privately employed foremen. Indeed, it is all the more of a tragedy and contravention of the natural principle of justice where the state itself acts with such gross negligence that the very lives of its own citizens are forfeit.

Let us not be mistaken. It is not just I and my colleagues who recognise the challenges and difficulties that are faced in these services. The courts also would recognise those challenges. I am sure that they would read with great care the provision that a corporate manslaughter conviction could or should be made only where gross negligence resulting in death had occurred.

Where that occurs, it is surely right that anybody should face the shame of a criminal conviction. That is the driving principle of the Bill. Government bodies and even Ministers cannot be an exception to that rule. I await with interest the Government’s response to this debate for I believe that it will provide the Committee with an essential insight into not only the way in which Ministers approach the first principles of this legislation but also the value that they place on their responsibilities in their direct or indirect role as custodians of those who have been deprived of their liberty. I beg to move.

Lord Lee of Trafford: My noble friend Lord Razzall suggested earlier that those who speak in this Committee should declare themselves as professionals or amateurs. If that be the Committee’s wish, I am happy to declare myself as an amateur.

Amendments Nos. 27, 39 and 41, tabled in my name and that of my noble friend Lord Razzall, would remedy what is arguably one of the most unsatisfactory features of the Bill; namely, the

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exemption from any corporate manslaughter charge of deaths in police custody. I concur entirely with the noble Lord, Lord Hunt, on that.

I think that it would be fair to say that virtually all noble Lords who spoke at Second Reading expressed their deep unhappiness with this exemption. Similarly, all the lobbying groups that have written to us share this concern. It is absurd to suggest that the police do not have a duty of care to those whom they take into custody and that they should be exempt from the provisions of the Bill.

As INQUEST has noted, since 1990, 10 unlawful killing verdicts have been returned by inquest juries, but none has led to a successful prosecution. Repeatedly, inquests highlight the failure to implement existing guidelines on the care of at-risk detainees. The deaths of six women at Styal prison in Manchester, which is not far from my home, between August 2002 and August 2003, despite repeated warnings to the authorities, demonstrate institutional neglect and systemic failures. We are encouraged in our arguments by the fact that both the Independent Police Complaints Commission and the joint report from the Home Affairs and Work and Pensions Committees believe that the option of a corporate manslaughter prosecution is important to maintain public confidence.

The Government are not doing any favours for the police by adopting this stance. Historically, the British public gave 100 per cent backing to the police and accepted their word as gospel. Sadly, we then saw a number of examples of police corruption and dishonesty which severely damaged that faith and confidence. We should all do everything possible to rebuild and develop the covenant between the police and the public, yet here we have a Government who, through this exemption, are damaging this relationship by providing this unacceptable and unnecessary protection. To allow our police force to take a citizen into custody and to deny them their freedom is to give a great responsibility and almost a unique privilege, as the noble Lord, Lord Hunt, said, but with that power goes a major obligation. That is why an ability to bring a charge of corporate manslaughter in today’s society is right and necessary.

Lord Ramsbotham: I am extremely grateful to the noble Lord, Lord Hunt of Wirral, for introducing the amendments and explaining his reasoning so clearly. I am sure that we are all very sorry that circumstances mean that the noble Baroness, Lady Scotland, cannot be with us, because, frankly, I should have liked to challenge her personally on one or two issues—and it is perhaps unfair to challenge her through the noble Lord, Lord Bassam. However, I shall do so nevertheless.

Last week, the noble Baroness held a briefing on this subject in which she said that the Government had been extremely brave and courageous in breaching the principle of Crown immunity in this Bill. What I wanted to say to her is that it is bravery of the kind displayed by the grand old Duke of York. If you read the Bill as written, you would say that we were all marched up to the top of the hill and shown

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the promised land below, but that all the exemptions with which the public sector and, in particular, custody were hedged around meant that we were all marched down to the bottom again. Frankly, I felt the courage and bravery ebbing out of the proposal.

I also say that because, during my time as chief inspector, I had a number of meetings with members of the present Government when they were in opposition, in which they appeared to take a strong line about what should happen about disciplining staff who had not behaved properly. I had high hopes when they came in that they would move on this matter, because it had concerned me that that was not happening. All too often, whenever there was a death in custody of any kind, it was subject only to an internal investigation by the Prison Service. One knew that the death could have been possible only if rules or duties of care or management had been breached, yet nobody was ever disciplined. My argument about this was that, if the Government and senior management allow gross breaches to go unchallenged, the whole structure of discipline is undermined, quite apart from the trust that people will have in an organisation.

I am sure that the Minister will himself be concerned that probably no subject has caused more grief or concern among affected people than deaths in custody. The number of occasions when it has taken years for families to get some form of information about what happened to their loved one in prison does no credit to anyone in the system. I was interested that, in the case of Zahid Mubarek, in addition to the words that the noble Lord, Lord Hunt, quoted from the admirable report of Mr Justice Keith, a strong statement was made right at the beginning, before the case came up, when the family fought for nearly four years to have a public inquiry. It was only the action of your Lordships’ House that brought the inquiry about.

The noble and learned Lord, Lord Bingham, in talking about this matter, said:

“The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others”.

That resulted in the Keith inquiry, from whose report the noble Lord, Lord Hunt, quoted. I was going to quote from it myself, but I shall not do so except to refer to one sentence. There was a considerable amount on record of named officers failing to do their duty, and one line particularly worried me. The report said that the governor with line responsibility had very little operational experience and did not get the help from the manager of the department,

“who had become complacent as his retirement beckoned”.

The named governor of Feltham could have,

“realised that and done something about it”.

If ever there were a description of systemic management failure, it was that.

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