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It should not be necessary in a civilised society for decency and humanity to have to be imposed by threat, but I venture to suggest that had there been a risk that a charge of corporate manslaughter would have been brought against them, managers at all levels would have taken a great deal more care over the detailed exercise of their responsibilities in the cases of Christopher Edwards, Zahid Mubarek, Sarah Campbell, Joseph Scholes, Paul Day, Gareth Myatt and, I dare say, many others who might still be alive if that care had been properly exercised.

Two distinguished members of the Labour Party in another place, Mr Andrew Dismore, chairman of the Joint Committee on Human Rights, and Mr John Denham, chairman of the Home Affairs Select Committee, have expressed their dissatisfaction that the Government have not cancelled their desire to exclude deaths in custody from the Bill and, separately, have expressed the hope that this House will vote against that exclusion. Nothing I have seen or heard from the Government so far has convinced me that there is any justification in the exclusion. I look forward to hearing whether Ministers have anything further to offer than the unconvincing reasoning put forward so far. This House has both a duty and an opportunity to prevent something which would not make me proud were I part of it. The

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Prison Service’s statement of purpose says that it has a duty to treat those committed to its care with humanity. I hope that, in agreeing with these amendments, the House will uphold that purpose and the rule of law, demonstrating that we deserve to be called a civilised nation. I beg to move.

4.45 pm

Lord Judd: My Lords, I warmly support this amendment, moved so comprehensively and convincingly by the noble Lord, Lord Ramsbotham. The state has particular responsibility to those for whom it is immediately and directly responsible. If one is introducing legislation with far-reaching ramifications, one carries the nation behind that legislation much more convincingly if the Government and those in authority say that they will lead by example, making themselves second to none in their commitment to those principles. To say that everybody else must apply this law but they want exemption in their own sphere of responsibility is not a convincing position from which to win the positive support of the nation as a whole.

In moving his amendment, the noble Lord referred to the statement by Andrew Dismore, the chairman of the Joint Committee on Human Rights in the other place. I am a member of that committee; indeed, it is meeting at this very moment, taking evidence from Ministers on asylum policy. With the encouragement of my colleagues, I absented myself to be here for this debate. If the House will forgive me, rather than trying to regurgitate the committee’s sentiments in my own inadequate language, I shall draw the House’s attention to what the Joint Committee on Human Rights has said on this matter.

In our original report on the Bill, we said, starting at paragraph 1.38:

We gave our conclusions in heavy type:

We put forward more supporting arguments, but I draw the attention of the House to paragraph 1.47:

That was our first report. We wrote to the Minister about our concerns—we always try to take a reasonable approach if we can—and we were given the courtesy of a very full reply. It would be an abuse of time to quote all the correspondence, but in Legislative Scrutiny: First Progress Report, Second Report of Session 2006-07 we referred to what had happened. We drew attention to the fact that in their response the Government offered three justifications for excluding deaths in custody and in other public sector contexts from the scope of the Bill.

First, we noted that the Government,

Our comment on that was unequivocal:

Secondly, we noted that:

Our conclusion, which was also printed in heavy print, was that:

The Government put forward a third explanation. We noted that,

I hope we will not be taken as having been dismissive, but we wrote, again in heavy type:

The Joint Committee is representative of both Houses and all parties, and it gave a lot of time to this matter. The strength of the chairman’s comments in the other place is an indication of how the committee felt. Paragraph 2.13 of the report stated:

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The whole House should be extremely grateful to the noble Lord, Lord Ramsbotham, for bringing all his experience, commitment and professionalism to bear on this matter. Having moved the amendment so clearly, I hope that he will receive full support from all parts of the House.

Lord Campbell of Alloway: My Lords, as a signatory to those reports, I want to say a few words. I wholly support the amendment. I do so very largely on the evidence of Anne Owers, which, if any of your Lordships have read it, would be wholly conclusive of itself.

Lord Clinton-Davis: My Lords, this issue should not be a test of one’s political beliefs. A powerful and convincing case has been put forward by the noble Lord, Lord Ramsbotham, supported by my noble friend Lord Judd. The rule of law should be at the heart of what we think about, rather than being directly confronted by this Bill.

This morning I read in the newspaper of the Government’s determination to oppose this amendment. I hope sincerely that that is wrong. I hope also that my noble and learned friend will agree to consider the amendment again and return later with an amendment which embraces what this one seeks to achieve. It gives me no pleasure to oppose the Government, whom I invariably support. But on this occasion why quarrel with an opinion voiced by members of another place and members here of all parties who are deeply troubled by what the Government hope to achieve? I hope that the Government will be frustrated on this occasion.

The noble Lord has put forward a compelling and convincing argument. I hope therefore that my noble and learned friend will understand that this issue deeply troubles many of us, and will agree to the proposition I have advanced. It does not, as I have said, give me any pleasure to do this, but on this occasion I think that I am compelled to do so.

Lord Lee of Trafford: My Lords, I speak to Amendments Nos. 3, 5, 11, 13 and 21 with which I am linked. These Benches very much support the sentiments expressed by the noble Lords, Lord Ramsbotham and Lord Judd.

In our free society, any organisation which effectively has near total control over an individual—be it the police, the Prison Service or a local authority—has a great responsibility to that individual and should be responsible under law for their behaviour. Where deaths occur they have to be thoroughly investigated and, if appropriate, charges brought. This corporate manslaughter Bill should apply to deaths in custody. It does the police no favours to exclude them from the provisions of this Bill.

Currently, relations between the police and many in our society are tender. In today’s media the most reverend Primate the Archbishop of York is quoted as warning that Britain is in danger of

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While I believe that statement is much exaggerated, the fact that it has been made at all is evidence of the extreme sensitivity of police/public relationships. It is our contention that protecting the police from action under the Bill can only add to mistrust, cynicism and suspicion.

I am surprised that the light, sensitive touch that the Home Secretary normally displays seems to have deserted him on this occasion. We have not taken kindly to the hints that if we continue to press the amendment we risk the whole Bill. Deaths during custodial sentences have not only united the principal opposition parties but also many Cross-Benchers, so ably led by the noble Lord, Lord Ramsbotham. In addition, organisations such as Inquest, Justice, Liberty and the Prison Reform Trust stand four-square with us.

So far, I have heard no speech from the government Benches—excluding those from Ministers—either at Second Reading or in Committee which support the Government’s position. Indeed, we have heard a speech indicating very much the opposite from the noble Lord, Lord Clinton-Davis. As the Bill stands, without the amendment it is not fit for purpose.

5 pm

Lord Boyd of Duncansby: My Lords, I am sorry to disappoint the noble Lord, Lord Lee of Trafford, but I support the Government and the proposition they are putting forward. I have been undecided about whether or not it is right to lift Crown immunity in any case and, once one accepts its lifting, where the line is to be drawn. In Grand Committee, we heard powerful speeches from the noble Lords, Lord Hunt of Wirral and Lord Ramsbotham, in support of amendments which have now been brought forward in a slightly different form.

Perhaps I may share some of my concerns with the House. First—I suspect some people may think this is an old-fashioned and quaint view—I have a conceptual difficulty with the idea of the state prosecuting itself, or, at least, one arm of the state prosecuting another arm of the state. I appreciate that we get over that by dividing lines drawn in the sand, as it were, but it does lead to some absurdities. For example, if the amendments were accepted, in Scotland, assuming the evidence supported it, a death in a prison would be prosecuted against the Scottish Executive. In English terms, they would be the defendant; in our terms, the accused organisation. The Lord Advocate is constitutionally responsible for the investigation of all deaths in Scotland; the Lord Advocate is also a member of the Scottish Executive. So, in effect, the Lord Advocate would be taking a decision to prosecute an organisation of which she is a leading member.

In Scotland, the Crown Office and Procurator Fiscal Service is listed in Schedule 1, and yet that body, essentially, would be responsible not only for the prosecution but for the investigation of the offence. I dare say similar issues would arise in England. I notice that the Attorney-General’s Office and the CPS are also listed in Schedule 1.

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Before I come on to my real concerns, perhaps I may mention the report of the Joint Committee, to which my noble friend Lord Judd referred. There is a difference between making an argument and making a judgment. The committee makes the argument under reference to Article 2 very well indeed. I accept fully that an argument can be made under reference to Article 2 that we ought to extend the Bill to include deaths in custody. Nor, of course, can one rule out the possibility that as the case law of the European Court of Human Rights develops and as the European convention, which is a living instrument, develops, we might at some stage have to consider extending the Act. But I do not accept the judgment stated at paragraph 2.13 of the first progress report of the committee that,

With the greatest respect to the committee, that overstates the position. I believe that what the European Court of Human Rights would expect from the United Kingdom is a full and thorough investigation, possibly an independent inquiry held in public, and the prosecution of any individual found to have committed criminal offences. I do not accept that the European Court of Human Rights would expect the prosecution of one arm of the member state.

Lord Judd: My Lords, I wonder how far my noble and learned friend’s conclusions have been informed by the case law examples of the European court.

Lord Boyd of Duncansby: My Lords, I do not know of a case that would point to the conclusion made by the Joint Committee. I fully accept that the argument is there to be made.

However, my real concern is with the interaction between public policy and the duties of public authorities. I illustrate my concern by reference to a Scottish case, the case of Napier against Scottish Ministers. It dealt with slopping-out in Scottish prisons. In Scotland, we were somewhat behind England and Wales in providing sanitary facilities in cells. That resulted in prisoners being doubled up in cells with no sanitary facilities and, in effect, during times of lock-up, being forced either to ring for release from the cell or, more often, to urinate or defecate in front of their cellmate.

The matter was raised by Mr Napier against Scottish Ministers based on alleged breaches of Articles 3 and 8 of the European Convention on Human Rights but also based on the common law of negligence—delict in Scotland, tort in England. In the course of that case in the Court of Session, the issue of £13 million, which it was said had been taken from the Prison Service budget, was raised. I should say that Mr Napier had been incarcerated in C Hall in Barlinnie in 2001. I do not think that he was a stranger to that establishment.

In any event, in paragraph 88 of its opinion, the court stated:

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I think that this was in an affidavit—

It is true that £13 million was taken from the end-of-year flexibility of the Prison Service. The decision was taken by the then Minister for Justice, Jim Wallace. To be fair to him, he would say that he was not aware that the likely consequence would be a slowing-up of the refurbishment programme. I should also say that Mr Wallace is a decent, humane individual who feels strongly about conditions in prisons. He also feels strongly about drugs and the misery that they cause, domestic violence and the support that is given to witnesses. However, before we decide where we are going to apportion legal blame, where do we in the court of public opinion assign blame for what happened? We could blame the Minister, or we could blame the party—my own party, the Labour Party—that proposed a drugs enforcement agency. We could blame the electorate for having voted for it, or we could say simply that these were proper priorities that were being set by government. The point is that the decisions were being taken in the context of public resources and their assignment.

Much was made in Grand Committee of the report on Zahid Mubarek. Although I had heard about him, I had not looked at the report. I went away and did so. I cannot claim to have read it all, or to be familiar with all its terms, but a couple of things struck me as I went through it. The first was that the Prison Service has co-operated very fully with the inquiry and was praised for doing so. In passing, I wonder whether it would have done so had it been facing prosecution, but there we go.

Paragraph 40.11 of the report relates to Mr Clifford, the governor who came in in, I believe, March or April 1999, and says that,

In the report’s final conclusion, Mr Justice Keith said:

I listened with great care to what the noble Lord, Lord Ramsbotham, said about this being not about resources but all about management. On the basis of the above remarks, I simply cannot agree. The management of Feltham, and indeed of other institutions, is always made in the context of public obligations and the resources that are available.

5.15 pm

I would have a lot more sympathy with these amendments if, as a corollary to them, the Prison Service was entitled to charge the state a realistic price for keeping prisoners in custody, if it were to have a free hand to determine the level of security in which it kept individuals and could refuse to take a prisoner or a particular type of prisoner. That would put it on the same footing as the private sector, which is controlled by costs, while the public sector is controlled by a host of other factors including resources, investment, and the statutory and common law obligations that are imposed on the Prison Service and others.

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