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Lord Lyell of Markyate: Before the noble Lord sits down, I am afraid to say that what I feared would happen has happened. The Minister has skilfully sought to focus in a rather narrow way on the question of custody and has not really met the major issue of principle. He has confused or obfuscated the position under Clause 3(1), which relates to decisions on matters of public policy, with Clause 3(2), which is the subsection that excludes, to our chagrin, the relevant duty of care except in cases of occupiers’ liability or employers’ liability. The amendments give a stark illustration of the kind of injustice or thoroughly unsatisfactory public management that
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The Minister has again sought to wriggle out of this. He says, “No, you cannot have decisions on matters of public policy being questioned in the courts. These are matters for Parliament”. But what went wrong in Feltham was not a decision on a matter of public policy. It was not a decision of public policy that there should be an incompetent system in Feltham, or that senior officials in Feltham should run a young offender institution in a way that put young offenders at risk of their lives. That is not a matter of public policy, but a matter of bad management and of bad supervision by the Home Office.
It is not a question of public policy. I am sure that there is no public policy to that effect in the Home Office—even under this Government. I withdraw those remarks. It has never been public policy in the Home Office to mismanage prisons. Indeed, quite the reverse. The object of the Home Office is to manage prisons well, but it just does not happen. The object of most major corporations is to manage their affairs well. Occasionally that does not happen. The Bill will hold them responsible for corporate manslaughter in sufficiently serious cases, although I, like other members of the Committee, hope that that will never arise.
We have an example of a sufficiently serious case where it might have arisen, and where it might happen in future. But it was not a matter of public policy that caused it to happen and—this is the key point—if it had been a true issue of public policy, these amendments would not remove the defence of the Home Office or the Prison Service in the face of such a charge. They would still have that defence under Clause 3(1), and it would be a legitimate defence. It might often be said, “You didn’t spend enough money on this”. If it could be shown that there were just not the resources or that it was a matter of difficult judgment, that would be a defence. The Minister has evaded the real issue that is causing concern to the Committee, so I hope that he will think again.
Lord Ramsbotham: I am glad that the noble and learned Lord, Lord Lyell, has introduced the subject of money. I was disappointed in the Minister’s reply, particularly because he started by mentioning resources, as if hurling money at this is the solution. It is not. The solution is all about management. If the Minister had read every report—annual or whatever—that I wrote, he would have seen that the issue came down to management every time. Poor management, poor oversight of management and failure to oversee management are the cause of ills in the Prison Service. I am extremely disappointed that, despite the Minister’s experience in the Home Office and a briefing from the prisons inspectorate, that point does not seem to have gone home.
I am not a lawyer but I want to repeat a paragraph that the Prison Reform Trust has put to us about the law on this matter. It states:
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“A corporate failure, which results in the death of a prisoner, is by definition a failure of duty of care of colossal proportions, ending the life of a citizen held in an almost powerless situation. This is recognised in international law and guidance. In the case of Keenan v UK, judgment 3/4/2001, the European Court of Human Rights stated that ‘in the context of prisoners ... persons in custody are in a vulnerable position and ... the authorities are under a duty to protect them’. In the case of Barbato v Uruguay, 1983, the UN Human Rights Committee considering a death in custody, was of the view that a state party to the International Covenant on Civil and Political Rights was ‘under an obligation to take effective steps ... to bring to justice any persons found to be responsible for his death’”.
This is by no means a new situation, which is why I am extremely disappointed that the chance of putting it right has not been taken. On the subject of human rights, I should say that, when we were looking at the implications of incorporating the European convention into British law, I asked a lawyer to compare the conditions with prison rules. The lawyer said that there was absolutely nothing in prison rules that was not in line with the European convention. Therefore, a breach of prison rules is also a breach of human rights. The worry about management breaching its own rules, quite apart from anything else, makes the case even more strongly than before.
Lord Hunt of Wirral: Before the Minister responds to that important point, may I add in support of the noble Lord, Lord Ramsbotham, the report of the Joint Committee on Human Rights of this House, which concluded that the effect of the various exemptions means that the Government will be at serious risk of violating Article 2 of the European Convention on Human Rights—the right to life? Paragraph 1.43 of the Joint Committee report states:
“In our view the effect of these provisions is to give rise to a serious risk that the UK will be found to be in breach of Article 2 ECHR in the particular circumstances of a future case where the case-law of the Court requires that there be recourse to the criminal law. In particular, the effect of these provisions in the Bill is to preclude the possibility of prosecution for corporate manslaughter in precisely those contexts in which the positive obligation in Article 2 is at its strongest, and may require, in a particular case, that criminal prosecutions be brought”.
Will the Minister respond to the point of the noble Lord, Lord Ramsbotham, over and above what the Government say in the Explanatory Notes? They seek to justify the restricted application of the new offence to public bodies, or bodies exercising public functions, by relying on the availability of other avenues of accountability. Yet it is in precisely these sorts of cases that the case law of the European Court of Human Rights, quoted by the noble Lord, stresses the inadequacy of other mechanisms of accountability, the importance of the deterrent effect of the judicial system and the significance of the role that it is required to play in preventing violations of the right to life.
Lord Clinton-Davis: Would it not be right, following a debate that has not been party political at all, for the Minister to say that he will cogitate profoundly on everything that has been said? It would not bind the Minister at all but, if he did so, the whole Committee would be impressed.
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Lord Bassam of Brighton: It is tempting to be mightily impressive, but I cannot oblige the noble Lord. The Government have gone a long way on Crown immunity.
Lord Bassam of Brighton: I am sorry, I disagree. We have moved a long way on Crown immunity; the Bill makes a fundamental shift. However, we have a responsibility to be clear about our public policy position, and have made those points clear.
I shall respond to the secondary issues raised by noble Lords. The noble Lord, Lord Razzall, made the BP point. BP can withdraw services; prison services cannot. The management of BP’s business does not include questions of government policy in the same way. I take issue with the assertion that management and public policy are somehow in a different orbit. When the noble Lord, Lord Ramsbotham, made his initial, powerful contribution, he was in effect saying that management issues were of course relevant and related to matters of public policy. It is ultimately for politicians, who are accountable for how the Prison Service conducts itself, to make key decisions about the way in which prisons are managed.
This ultimately comes back to matters of policy. The Government have a responsibility for commissioning the way in which prisons are run. We put the money in place. We adjust the programmes to ensure, for instance, compliance with checks on the health of prisoners so that proper provisions are in place to prevent suicides, deaths in custody and the like. It is not so easy to draw a line between issues relating to deaths in custody, in policy terms, and issues relating to management. It is more difficult than has been asserted thus far.
The Bill is compliant with the ECHR. Criminal law provides a wide range of sanctions for those deliberately, recklessly or negligently causing death. There is no consistent practice on corporate liability across the European states. We do not agree with the Joint Committee on Human Rights that there is an obligation to have a corporate homicide offence under the convention. We think that the Strasbourg court would be slow to find an obligation in that respect. Perhaps that is, in essence, a challenge for others to consider. We do not agree that the discrimination provisions in the convention would apply. Those prohibit discrimination on the basis of personal characteristics. The differences in the Bill relate to the different characteristics of organisations and the functions that they carry out.
We have a disagreement here. It is an honest disagreement, which has been met with argumentative passion, and I certainly respect that. However, in the end, we take a different view.
5.45 pm
Lord Hunt of Wirral: This has been a very disappointing response from the Minister, and we should take a moment to explore why. We are talking about someone who is killed who would be alive had an activity not
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I tried to work out why the Minister was being so firm, given that all the arguments that we have heard are so persuasive. I believe that the answer may lie in a rumour that has not been aired in this Committee—that the Home Secretary has made it clear that if the amendment were passed, the Bill would not be brought into effect. I challenge the Minister to tell us whether that is or is not true, because it is an important point and an important question to ask.
The Bill forms part of what is said to be the Warwick agreement—and I am still waiting for the noble and learned Lord, Lord Davidson, to give me a copy. I asked for a copy at Second Reading but I am still waiting for one—and perhaps one day I will get one. I understand that it contains a commitment that the corporate manslaughter offence will be introduced as a criminal offence. If it is the case that that is a key part of the invisible but apparently already written Warwick agreement, are the Government seriously contemplating withdrawing a Bill that they have promised under that agreement because the majority in the Houses of Parliament might oppose them on this matter? It would need a majority in both Houses to press this on the Government. I believe that these threats are being issued because the Government are not confident that they would succeed in persuading the Members of the other place to reject any such amendment if we passed it in this Chamber.
Perhaps the rumour should be aired a little more clearly so we know exactly where we are. At the moment my colleagues and I are determined to press the issue—and when we come to Report, which I understand may be on 5 February, this is a very important amendment on which we would want to test the opinion of the House. That is some days away, and there is still time for the Government to seek to meet this point and to recognise that very strong feelings are being expressed.
Lord Clinton-Davis: That is exactly what I wanted to emphasise. My suggestion has been ruled out by my noble friend. Am I not right in saying that we are not considering any party advantage with regard to this matter? Would it not therefore be sensible to consider the debate and what has been said, rather than rule out the opinions that have been aired?
Lord Hunt of Wirral: I completely agree. Some years ago, I was one of the senior Whips, and I know that the most effective way to change a Government’s mind is for their own Back-Benchers and Members to argue the case. When I was a Minister, I hope that I was always available to hear from my own side and from all sides when they felt strongly on a particular issue. I am not advocating mutiny or rebellion but, on
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We have had a lengthy debate, because this is a key issue. We have had briefings from Justice and Liberty. The noble Lord, Lord Ramsbotham, made a memorable speech that drew on his considerable experience and expertise. He referred to the briefing from the Prison Reform Trust, which pointed out that the other mechanisms to which the Minister referred, such as the role of the Prisons and Probation Ombudsman, are not on a statutory footing. It is also recognised that inquests can provide a verdict and the coroner can suggest remedial measures under Rule 43 of the Coroners’ Rules 1984, but those recommendations have no binding effect. Issues such as that make us feel that there is a gap in the law. It is equally persuasive that a number of other bodies, such as private companies running prisons or custody suites, including those that have been mentioned to us, would be exempt. The whole question of custody becomes an overarching issue that applies not only to the public but the private sector.
I hope that I made a persuasive case, and I will seek to do so again. I thank noble Lords who spoke in this debate. I anticipate that my noble and learned friend Lord Lyell will be returning to this issue on each amendment where we have this area of uncertainty between the public and private sectors. I want to think about some of the points made by the noble and learned Lord, Lord Lloyd, about whether there would already be application under Clause 2. The noble Lords, Lord Lee and Lord Razzall, also made a persuasive case, and the noble Lord, Lord Ramsbotham, made an outstanding speech. The noble Baroness, Lady Howe, added to the persuasive nature, as did the noble Lord, Lord Wedderburn. I hope that the intervention from the Back Benches of my good friend and solicitor colleague, the noble Lord, Lord Clinton-Davis, who has great experience of being a Minister, will add to the persuasive nature of this debate so far as the Government are concerned.
Lord Lee of Trafford: Would the noble Lord acknowledge and place on record that at Second Reading, in Committee and outside this House there has been zero support for the Government’s position?
Lord Hunt of Wirral: I would not like to designate the Minister as zero, but he will recognise that he has not had many friends and colleagues supporting his case, which is the point being made by the noble Lord, Lord Lee. There is still time. We urge the Government to focus on this issue which is at the heart of the debate. We want to see a clear and effective law making it a vital part of the criminal law that organisations cannot cause someone to die through their gross negligence, falling far below the duty of care that would reasonably be expected in those circumstances. I believe the case has been made. We have not yet made the progress we would wish, but I believe we will
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Amendment, by leave, withdrawn.
[Amendments Nos. 27 to 33 not moved.]
Baroness Turner of Camden moved Amendment No. 34:
(1) A senior manager of an organisation is guilty of an offence if by his acts or omissions which amount to a gross breach of his duty he contributes to a breach under section 1.
(2) For the purposes of this section, a person is a “senior manager” of an organisation if he plays a significant role in the making of decisions about how the activities of the organisation are managed or organised, and includes the chairman, managing director, chief executive, secretary or other director of the organisation.
The noble Baroness said: In moving the amendment, I shall speak also to the other amendments in the group, with the exception of Amendment No. 92, which will be dealt with by my noble friend Lord Wedderburn.
As I have already indicated in discussion on the Bill, my interest is that of a former trade union official. I have consulted colleagues in my union and in the TUC. As I said earlier, the unions are generally in favour of the Bill, but believe that it should be tightened up to make sure that it is really effective.
Concern is felt that the Bill does not address the role of individual directors. It is not organisations that kill people, but the actions of the people in those organisations. Directors and senior managers should be held to account for their actions. There is nothing in the Bill that would lead to directors who make the decisions that result in a death being held liable. That could mean that, while the Bill may make it easier to bring corporations to justice after a fatality, it will not lead to those who run the organisations taking preventive measures to ensure that such deaths do not occur in the first place. That will happen only when those who make the decisions that lead to workers or the public being killed are held responsible for their actions or their inaction. Unless there are individual sanctions against directors or senior managers, there is little chance of the Bill changing the health and safety behaviour of directors and improving the management of health and safety at work.
It has always seemed strange to me that severe penalties can be imposed on directors for financial malpractice, but that there is no specific duty of care for the health and welfare of the workforce. There may be a case for making an addition to the Health and Safety at Work etc. Act to ensure that that happens.
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Amendment No. 35 establishes secondary liability, as recommended by the Joint Committee, for those who connive, conspire or collude in an act that results in death. It is believed that that would have a significant deterrent effect. I understand that the Government have previously declined to accept the recommendations of the Joint Committee, but I hope that they will be prepared to reconsider. Perhaps they will accept the principle behind the amendment even if they prefer a different form of wording; it is the principle involved which is important. What the amendments seek cannot not be obtained while Clause 16 exists. For that reason, we have given notice of our intention to oppose the Question that Clause 16 stand part of the Bill.
Amendments Nos. 90 and 91 seem to be along similar lines, but seek to reverse the meaning of the clause rather than do away with it all together. Clearly, if our main amendment is to be accepted, something has to be done about Clause 16. It cannot stand as it is. As I said earlier, the noble Lord, Lord Wedderburn, will speak to Amendment No. 92. I beg to move.
6 pm
Lord Razzall: I shall speak to Amendments Nos. 90 and 91 in my name and that of my noble friend Lord Lee. The noble Baroness, Lady Turner, is correct that our amendments’ purposes are entirely in line with hers. I claim no credit for the drafting; I am perfectly happy for the Committee to deal with these issues as it thinks fit.
These are probing amendments. The issue raised by the noble Baroness, Lady Turner, was not properly discussed in another place. We must explore why individual liability for directors should not be encompassed by the Bill. I understand—the noble and learned Lord, Lord Lloyd, will correct me on this if I am wrong, as he does on so many other matters—that individual directors can be prosecuted for the common law offence of gross negligence manslaughter and under Section 37 of the Health and Safety at Work etc. Act 1974. However, if we look back, first, at prosecution for the common law offence and, secondly, at prosecution under Section 37, the practice has been that only a small number of directors has been prosecuted. Obviously, once the Bill is passed, corporate manslaughter will be a serious offence. I want the Government to justify how excluding individuals who have been grossly negligent would facilitate justice for bereaved families under those circumstances.
This is a probing amendment. I support the principle that the noble Baroness, Lady Turner is putting forward. I claim no credit for the drafting, because her amendments have exactly the same effect, and look forward to hearing the Government’s response.
Lord Hoyle: The amendment is in my name as well as that of my noble friend Lady Turner. I declare an interest; not only am I member of a trade union, Amicus, I am a past president of two of the founder unions, the ASTMS and MSF.
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I rise because you cannot imprison a corporation—you can fine it. It has been proved in the past—as referred to by the noble Lord, Lord Razzall—that, under the Health and Safety at Work etc. Act 1974, it has always been difficult to find a controlling mind. It is easy to find a controlling mind in small companies, and they and their directors have been successfully prosecuted, but not large ones. It is right to refer to some recent events: the “Herald of Free Enterprise”, the Kings Cross fire, the rail disasters at Southall and Hatfield, the “Marchioness” pleasure boat and the oil rig. Over a long period, it has been difficult to prosecute if individuals are not at fault.
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