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5 pm

I felt particularly strongly about that case because I had inspected Feltham three times and had pointed out precisely the things that came out in the inquiry, yet the Prison Service claimed to know nothing about what was going on. To my mind, so that people can have faith in the system, the head of the Prison Service, in particular, should feel that the service’s activities are subject to action such as this. I venture to suggest that, if he had felt that his actions might lead to an appearance in court on a charge of corporate manslaughter, he might not have been so complacent about his retirement and about leaving the circumstances that led to the death of Zahid Mubarek.

We have an opportunity to put this matter right. I think that we owe a duty to the public to restore confidence in a system in which increasingly, day by day, they have less confidence as a result of the exposure of practices that, frankly, should not be allowed.

Another prison about which I raised a number of concerns during my time as chief inspector was Wormwood Scrubs. Although there was no case of manslaughter, there was extraordinarily bad behaviour by staff, brutality of prisoners and, over a number of years, management failure on a scale that I simply could not believe. When the Prison Service held inquiries into Wormwood Scrubs, to which I was able to give a volley of evidence, I discovered that, again, those inquiries were internal. Although I had given evidence to one myself, I was never notified of the result, and eventually I was forced to ask Questions in this House on 20 November to find out what had happened to the reports. I did not get an answer and so the other day I asked again. I received the Answer today, which I suppose is good timing. My Question was whether, during the period December 1992 to April 1998, any of the management team faced any form of disciplinary action arising out of the violence against inmates of the prison. I was told that one member of staff was investigated and appropriate action was taken, but that is not specified.

I mention that because, frankly, that is the quality of the results under the current system of dealing with these matters. It is a system of so-called independent inquiries, supervision by the non-statutory Prisons and Probation Ombudsman, and public inquiries, of which there has been only one, and that had to be forced out of the Government by your Lordships’ House. If the Government seriously pretend that the current position is adequate, they should reflect on what that says to people who are thinking seriously about what should happen now.

There is a vast number of suicides—well over 1,000 in the past 13 years—but I want to mention just one that gives me particular concern. I mentioned it at Second Reading, too—the suicide of Paul Day in Frankland in 2002. It took four years for the inquest to be held. During that time, the family was denied all access to information and the Prison Service did its best to obfuscate the dreadful situation in which this man’s life had been made a misery because prison staff had connived at other prisoners learning that he was a police informer. He was taken to places for his

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own protection but he did not receive protection. The day before he died, people from independent television went to Frankland prison and filmed what was going on. They filmed him on the day that he died, capturing illegal activities taking place in his own cell.

The coroner was extremely disturbed at what he discovered. The jury in the trial said that they believed that all sorts of failures had come to light, such as the lack of communication between prisons and the lack of procedures in place. They said that management should be more involved and that Paul Day was misled about the reason for his transfer to Frankland. The effect was that he felt abandoned, frustrated, depressed, helpless and defeated; he also lost trust in the system of care. The jury believed that systems in place to manage and care for Paul effectively were inadequate. There was a lack of staff on night shifts, the suicide awareness training was inefficient, and so on.

There have been frequent calls by Day’s parents for a public inquiry. They have been consistently denied, as they have been in the case of Joseph Scholes, a 16 year-old who committed suicide in Stoke Heath, and Sarah Campbell, who committed suicide in Styal. I seriously believe that if the threat of the Bill had been hanging over the staff of those prisons at that time, all those people would not have received the treatment that they did.

When in 1999 I wrote a paper about suicides called Suicide is Everyone’s Concern, I said that I felt that what was needed was a ringing declaration from the Secretary of State and the director-general down through the system that poor management of staff, in allowing these things to happen, was not to be tolerated. If management then did its job, many of these events would not take place and staff who are responsible for the brutality towards prisoners that so mars the good name of the Prison Service would not be allowed to get away with it. The existing sanctions simply are not enough to bring this about.

I hate the thought of coercion through a Bill, but this Bill, which is based on the duty of care and which should be shown to everyone in the charge of these authorities, is an appropriate weapon. I seriously believe that the Bill would energise the management system in a way that nothing else that I have come across in the past 10 years seems to have been able to.

Lord Lyell of Markyate: In the light of the powerful speeches by my noble friend Lord Hunt and the noble Lord, Lord Lee, and the immensely well informed and powerful observations of the noble Lord, Lord Ramsbotham, I shall be extremely brief.

We are now at the heart of the matter. What is the whole purpose of the Corporate Manslaughter and Corporate Homicide Bill? It is to enable responsibility to be established at the high level at which the failure has taken place—failure that has then caused failures at a lower level to lead to preventable deaths. That is plainly what happened in the Zahid Mubarek case. The report of the only independent inquiry—again, I am grateful to Liberty—stated:

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“Had there been effective management from the governor down, and within the wider prison system, the death could have been prevented”.

It went on:

“Stewart should have stood out from the crowd”,

and should not have been placed in the same cell as Mubarek.

There is a strong case for saying that there was a systemic failure that should at least have been brought before the courts. The whole object of the Bill is to put responsibility at the level where it should be; that should apply to public authorities as well as to all others, public or private. I shall listen with great care to what the Minister says about this because I am sure that there is strong feeling about it across the House.

Lord Lloyd of Berwick: Members of the Committee will have noticed that on Thursday, at our first sitting, I found it very difficult—indeed, impossible—to support any of the amendments that were put forward by them. I have no such difficulty with the amendment in the name of the noble Lord, Lord Hunt, supported by the noble Lords, Lord Lee, Lord Razzall and Lord Ramsbotham. As the noble Lord, Lord Hunt, said, it is all the more important that those in custody should be covered by the relevant duty of care, because they cannot for obvious reasons leave whatever premises they are on and do not have any choice in how they are treated.

I entirely support the arguments that have been put forward for this amendment. I can only add a lawyer’s point to the much more powerful points that have been made. Indeed, I am almost ashamed to put forward this point, following the arguments that we have heard, but I should be interested to hear the Minister’s answer. With regard to Clause 2(1), those in custody already seem to fall within the scope of the relevant duty of care. Clause 2(1)(b) refers to,

“a duty owed as occupier of premises”.

I do not know who, strictly speaking, would be the occupier of a prison, but let us suppose for a moment that it is the Prison Service. Clearly, as occupiers, the service owes a duty to people visiting the prisons; that being so, it must surely also owe a duty of care to those in custody in prison. The same also applies to the duty of care under Clause 2(1)(c)(iv), as the Prison Service uses plants and vehicles. If it is grossly negligent in relation to those matters or to the conditions of the premises, it is clearly already under a duty of care to those in custody. There is no exception in the Bill, as far as I can see, to prevent the prison authorities from being liable in those circumstances—so how should there be an exception in the far more serious instances to which the noble Lords, Lord Hunt and Lord Ramsbotham, referred?

Baroness Howe of Idlicote: I support all the amendments, especially having listened to the speeches made by all the noble Lords who have spoken, with their expertise and—to refer to my noble friend Lord Ramsbotham—actual experience in this area. Earlier, the noble and learned Lord, Lord Lyell, referred to the fact that gross negligence is required in these circumstances. That has made a particular

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impression in matters such as this. Of course, the safety of those outside must be borne in mind, along with the reasons why people are put into prison.

There is the human rights issue—and the point was made forcefully about the importance of this group being included, because of the encouragement that that would give to the culture of safety. We have been discussing what has happened in prisons and the effects of gross overcrowding, which is contributing even more than in the past to the concerns and the failure to address the problems and needs of those in prison, such as the totally inadequate mental health facilities. It is typical that we are discussing in parallel rooms a Bill such as this and a Mental Health Bill. Having read what was said in the Commons, I cannot believe that the Government will not include this group in the provisions of the Bill.

It is a brave Bill, but it will not be seen as such unless the whole range of amendments is included. Whether it is a private or public prison, the whole range is relevant. On that note, I hope that we shall hear something encouraging from the Minister. One accepts that this is not his area of expertise, and it is a pity that he has to cope with it—these things happen—but I hope that we will be encouraged by his remarks.

Lord Wedderburn of Charlton: It is impossible for me, sitting next to the noble Lord, Lord Ramsbotham, not to want to add my voice to what has just been said. I am rather more of a pessimist than the noble Baroness, Lady Howe. I have a horrible feeling that the Government will put up some ridiculous resistance to what is obviously a totally justified approach. I no longer suffer from the whips and scorpions of the Minister’s noble friends but, when I did, I counted the noble Lord as a friend in a real sense and still do. I ask him—and, through him, the noble Baroness, who is unfortunately not with us today—to put aside those parts of his script that are totally resistant to these amendments and to advance a reply to the arguments that have just been put. I have never heard a speech like that of the noble Lord, Lord Ramsbotham, which is so obviously right and based on primary experience. If the Government resist this, those who have not taken the step that I took a few weeks ago and who go on singing that great number of the 1960s,

“It’s my party, and I’ll cry if I want to”,

will have to cry even more. I shall not, because I am no longer bound by the Whip. I shall feel another little piece of justification for that. I beg the Minister to think carefully before any pre-existing script in his hand defies the logic of these amendments.

5.15 pm

Lord Bassam of Brighton: I am beginning to wish even more that the noble Baroness, Lady Scotland, was with us this afternoon, because it falls to me to advance the Government’s position. I do so having listened to what I happily confess has been a stimulating and interesting debate conducted with

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passion and not a degree of persuasion. Of course, one would expect that, given the personae in the Committee this afternoon.

I shall, of course, disappoint the noble Lord, Lord Wedderburn, but for good reason. I appreciate that the issue of safer custody is of high importance to all noble Lords, as it is to the Government. It goes without saying that we have made many efforts to make improvements. The noble Lord, Lord Ramsbotham, might disagree with that, but the Government have attempted to improve the safety of custody in many respects, because it is right that the Government should do so. No Government should be complacent about it, and we should always strive to do better.

I shall carefully set out the Government’s position. The drive behind the amendments is a quite proper desire to see fewer deaths in custody but, while I share this desire, it is not right to extend the offence to deaths relating to the exercise of custody functions. That is not because the Government fear adverse publicity from the offence applying to prison deaths. It will not have gone unnoticed by noble Lords that, in any event, adverse publicity attaches itself to cases of the sort described this afternoon, and that is not necessarily contingent on a criminal case. A damning public inquiry or report from the inspector of prisons—as I am sure that the noble Lord, Lord Ramsbotham, would aver—can attract much press interest, a high degree of criticism and a focus on the important issues relating to the tragedy of a death in custody.

The offence should not apply to deaths in custody because the unique set of factors contributing to the safe running of prisons involves too many matters of core government decision-making and public interest to render them appropriate for judicial, as opposed to parliamentary, scrutiny. There are already established mechanisms for investigating the causes of deaths in custody and for driving improvements across custody services. We all want further improvements in how the prison, police and immigration services look after detainees in their care and we all want fewer deaths in custody, but applying the offence to deaths in custody is not the way to go about achieving that.

I want to talk in more detail about why the circumstances of custody make scrutiny of how it is managed unsuitable for the criminal courts. Prisons face a uniquely difficult and complex environment. In seeking to reduce risks, prisons must act within the constraints of the resources available and balance the needs of all prisoners in making those decisions. What is so very difficult is that prisons are not in control of all the factors, in particular of the number of people sent to them by the courts and whether those people are at risk of suicide. Often prisoners bring a number of risk factors, such as substance misuse or mental health problems, into custody with them. The very fact of being in prison can make their risk of suicide significantly higher, but it is not within the gift of the Prison Service to determine which people are committed to prison custody.

The decisions of courts in individual cases are crucial, as they should be. The Prison Service cannot simply decide to stop accepting new prisoners or otherwise refuse to accept certain high-risk

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individuals because of the additional strain that they may place on the limited resources available to monitor such persons to a level required to prevent all suicides or other tragedies. Having to respond to those external pressures can mean that resources in a prison can shift quickly from being adequate to being inadequate. More widely, key decisions of government policy and legislation passed by Parliament impact on how many people are sent to prison. The resources available to prisons to cope with those people result from balancing priorities for the use of public money across the board.

Although with other public authorities—for example, local authority provision of certain services—resources can be balanced against provision of service, the Prison Service cannot withdraw or reduce its service. Only the Government can decide whether there is insufficient resource to house safely all prisoners and whether the public interest is better served by sentences being commuted or certain prisoners being released. That involves weighing up competing public interests, where the safety of the public and the safety of prisoners must be balanced against each other. How that is done, and whether the right balance is struck, is not a matter for the courts; it is a matter for the Government, subject, as ever, to appropriate parliamentary scrutiny.

The criminal law is a blunt instrument for looking at all these factors and considering the causes of a person’s death in prison. Furthermore, we must consider whether manslaughter is the appropriate label for those who fail to prevent people from taking their own lives or to prevent one person from killing another. If there were no other robust ways in which prisons could properly be held to account, we would need to ensure that they existed, but there are already a number of such accountability mechanisms firmly in place. They include the interrogation of Ministers in both Houses and in relevant committees, robust scrutiny by HM Inspectorate of Prisons and independent investigations of particular cases.

All deaths in prison custody are subject to an investigation by the Prisons and Probation Ombudsman and deaths in police custody are subject to an investigation by the Independent Police Complaints Commission; they are also subject to a coroner’s inquest, in public, with a jury. In rare circumstances, public inquiries may also be appropriate, such as in the tragic case of Zahid Mubarek, to which the noble Lord, Lord Ramsbotham, and other noble Lords referred.

To take that case as an example, the public inquiry allowed a full investigation, which looked not only at the immediate causes of Zahid’s death, to which a criminal court would be limited—that is an important point—but also at the wider context. Investigations by the ombudsman, the IPCC and public inquiries can fully investigate the causes of deaths in the widest context and make recommendations that drive improvement across the prison estate and in other detention services. They are the right way to examine deaths in custody.

The Government are fully aware that safety in custody must improve. We are working to achieve

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that, and the types of investigations into deaths about which I have been speaking can highlight particular areas for improvement. We are concerned that any criminal investigation as well as these other forms of investigation, which we would certainly not consider reducing, would divert limited public resources and encourage a culture of defensiveness. We all accept that prisons need to be imaginative and to spend their resources to meet a variety of competing demands, including the physical environment in which prisoners are kept and the programmes that are employed to turn around offending behaviour, increase employability and tackle long-term problems such as drug addiction. Imposing the offence on top of that complex matrix risks putting pressure on the way these decisions are taken. We do not believe that that would be in the public interest. There are more 200 deaths a year in prison. Prisons are under pressure to improve, but we do not think that adding to that pressure at this time by applying the offence of corporate manslaughter would achieve those improvements.

Before I close, it is worth reiterating the sort of cases that this offence was designed to tackle in the first place. While the Government are working to reduce the number of deaths in custody, whether these measures are in place or are enough are core government policy decisions, which are not what the Bill was intended to examine. The Bill has never been about creating a new avenue for judicial scrutiny of core government decisions. It is about the management of health and safety and the employment and workplace activities to which those provisions generally apply. That is highlighted by the nature of the incidents that have underlined the case for reform over the years. We have not shied away from applying the new offence to government. Indeed, we have gone to some lengths to lift Crown immunity, and I take issue with the noble Lord, Lord Ramsbotham, when he questions the braveness of that. We have gone further than any previous Government, with the result that we find ourselves having these important and difficult debates. The Prison Service will receive no special treatment in its position as employer or occupier, but it has unique public responsibilities. The way they are carried out involves complex questions of public policy.

It has never been the Government’s intention to bring forward legislation that would allow the courts to go to the heart of the Government’s decision-making in how they discharge fundamental public responsibilities. For this reason, the Government strongly oppose the Bill being diverted from its true purpose in this way. I hope that noble Lords will agree with me that Parliament is the right place for the rights and wrongs of decisions taken at the heart of government to be examined and that we should not franchise the job out to the courts to do it for us. While I understand the passion that has driven this debate, and I understand why that passion is there, the Government have to reject the amendment.

To answer the point made by the noble and learned Lord, Lord Lloyd of Berwick, it is best to say that the new offence will apply to the kind of fatal incident that the offence was originally intended to cover when we first conceived it in the context of the proper

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management of health and safety. Throughout the discussions of the Bill, we need to focus on that underlying objective to take the health and safety agenda one step further and to make improvements in the proper management of health and safety matters. Deaths in detention or of those working in detention services will be covered when the state of the workplace or the use of equipment in the building is the cause of death; for example, a death caused by the failure of fire-fighting equipment or of a fire door would not be excluded from the scope of the offence. Similarly, a death caused by faulty equipment in a workshop would not be excluded. Other deaths are also within the scope of the offence, such as deaths arising from gross failures in matters such as food hygiene. I hope that that answers the question of the noble and learned Lord, Lord Lloyd, and addresses the issue of occupier liability.

5.30 pm

Lord Lloyd of Berwick: On that last point, I understand that the Minister accepts that the prison authorities owe a duty under Clause 2(1)(b) as occupier to visitors at prisons. That being so, why on Earth should that same duty not be owed to somebody in custody? People who are in custody are already covered by the Bill. Therefore, the argument that people who have been sent to prison are not there at the wish of the prison authorities falls to the ground. Indeed, all the Minister’s arguments fall to the ground.

Lord Bassam of Brighton: In terms of prisons providing a duty as occupier, prisoners in custody are not included. That is the point and why we are having the debate. We draw a distinction, which we think is right. It goes to the heart of the way in which policy is conducted and decisions are made about the nature of resources and so on applying to the prison estate and other custody services.

Lord Razzall: Before the noble Lord sits down, I have listened with great interest to what he has said. I will read Hansard, but would not anything that he has said as a justification for excluding the Prison Service apply equally to BP, Glaxo Smith Kline or Accenture? All the Minister’s arguments are a justification for excluding any organisation. Why is the Prison Service being singled out?

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