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In considering these amendments, we also have to look to ourselves. The prison population in England and Wales, and in Scotland, is far too high. We do not have the number of places to accommodate all prisoners in the kind of conditions in which we, in a decent society, would like to see them. We have to look to the number of laws that we pass and the kind of custodial sentences passed by the courts and to consider the amendments in that context. However, it is simply unfair, in my respectful submission, to pass the buck to a management that does not have the resources, the investment and everything else that is required. The great distinction between the sectors is that while the only control in the private sector is one of cost, in the public sector, there are other obligations.

Lord Dholakia: My Lords, the noble Lord, Lord Ramsbotham, has set out a very powerful case. The amendment to bring deaths in police and prison custody within the ambit of the Corporate Manslaughter and Corporate Homicide Bill deserves strong support from your Lordships’ House. The amendments would not, of course, mean that all or most deaths in custody would result in a prosecution for corporate manslaughter. We are not talking about a blanket provision. That would apply only when, exceptionally, there had been a gross breach of a relevant duty of care. However, if that was the case, in those circumstances, a prosecution for corporate manslaughter should enable the courts to hold that serious management failures, a point rightly stressed by the noble Lord, Lord Ramsbotham, had occurred resulting in an individual’s death.

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In their 2005 consultation paper, Corporate Manslaughter: The Government’s Draft Bill for Reform, the Government argued that deaths in custody should be exempted from the scope of the Bill on the grounds that,

“organisational failings in these areas are more appropriately matters for wider forms of public and democratic accountability”.

They argued that deaths in prisons are,

“subject to rigorous independent investigations through public inquests before juries and through independent reports capable of ranging widely over management issues and publishable post inquest”.

This is nonsense. There are still grieving parents who have no answer to how many vulnerable youngsters have died. I have taken up case after case in your Lordships’ House. I would simply recommend that people look at the case studies that have been produced by inquests to back up this statement.

However, the Independent Police Complaints Commission effectively answered that argument in its comments on the consultation paper. It stated:

“The consultation paper suggests that the reason for not applying corporate manslaughter to public functions is that this would conflict with existing accountability mechanisms”.

That point was repeatedly stressed by the noble and learned Lord, Lord Boyd. The IPCC continued:

“In fact, it would complement them. All deaths following police contact have to be referred to the IPCC, and some of these will be independently investigated. If the evidence from such an investigation showed the most appropriate way forward was a corporate manslaughter prosecution, it would cause serious public concerns about the effectiveness of public accountability if this was not an option”.

The commission pointed out that at present, in a case of serious systematic failure resulting in death,

“there could be a disproportionality whereby a death occurs and the only sanctions available are minor disciplinary sanctions against individual officers”.

This is a wholly unsatisfactory position, which the amendments would remedy.

Unless these amendments are passed, a private company running a business could be liable to a charge of corporate manslaughter, but a public service charged with the care of particularly vulnerable people behind locked doors and high walls would not. This is an indefensible situation—indeed, because of the particularly vulnerable position of prisoners, we should take special care to protect their lives. Even more indefensibly, a private company running a prison would not be liable to prosecution for corporate manslaughter, although a private company running any other kind of business would be liable to such a charge.

The House of Commons Home Affairs Committee and the Work and Pensions Committee concluded in their joint report on the draft corporate manslaughter Bill that,

“there is no principled justification for excluding deaths in prisons or policy custody from the ambit of the offence ... where deaths in prisons and policy custody occur, they should be properly investigated and the relevant bodies held accountable before the courts where appropriate for an offence of corporate manslaughter”.

Perhaps I may remind the Minister of the analogy with previous race relations legislation whereby

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functions of criminal justice agencies, and police and immigration officers, were excluded. It took the death of Stephen Lawrence and a proper inquiry to make the Government pass the Race Relations (Amendment) Act, which brought these agencies within the jurisdiction of that legislation. Let us not make a similar mistake.

Lord Dear: My Lords, I support the amendment. I shall be brief because all the points that I would have wished to make have already been made. It is said that one litmus test of any society is the way in which it treats those which it holds in custody. As I understand it, in any civilised society, “custody” applies to anyone who is detained by any servant of the Crown. I speak as a police officer for more than 30 years. I see no reason whatever to exclude the police from the effects of this Bill. We can be proud of the police service in this country, but that is not to say that mistakes do not happen from time to time or that at times; rare though it may be, things go wrong.

So why create doubt in the minds of those within the services and among those who look inwards at it? I believe that if we were to support this amendment it would send all the right signals internally and externally. Indeed, to exclude it would send, quite obviously, all the wrong signals. I said that I would be brief, but the point needs to be made that I support the amendment that has been so fully and expertly put to this House by the noble Lord, Lord Ramsbotham.

Lord Imbert: My Lords, I regret that I was unable to be in your Lordships’ House at Second Reading, for which I apologise. The death of the wife of a close friend had to take precedence over my attendance. However, I wish briefly to make a couple of points about deaths in custody. On reading the Official Report of the Second Reading and the Committee stage, if one did not know better, one could be forgiven for thinking that a death in police custody would not be investigated thoroughly, nor would there be any recommendations for action to be taken either in the criminal court or under police discipline regulations. That is not so.

In Committee, the noble Lord, Lord Bassam, rightly pointed out that police are not and must not be above the law. I certainly agree, and I would wager that every police officer in the country would agree that the police are not above the law. Indeed, that reflects a comment of the late Lord Denning. I cannot remember the exact words and I do not attempt to imitate his lovely Hampshire accent, but he said something like:

“Be they ever so great, they are not above the law”.

I am sure that the noble and learned Lord will correct me if I am wrong in that, but Lord Denning said it and we believe it.

Should there be a death in police custody, it is immediately reported not only to the coroner but also to the Independent Police Complaints Commission. The commission ensures that a thorough and independent investigation is carried out and may well recommend that someone it deems responsible for the

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death should stand before a court of law. If there are side issues of discipline, not infrequently it will recommend that a disciplinary charge be brought. Having been the president of a number of disciplinary hearings, I can assure noble Lords that they do not hand out minor punishments. Dismissal from the service or a requirement to resign immediately is not uncommon if there have been grave breaches of discipline. My fear is that this amendment may well make the police risk-averse and that the Act will have the opposite effect to that intended. If the amendment is passed, more deaths will be caused rather than fewer.

I understand fully the sentiments behind the amendment and I can see how they must apply, certainly in the testimony of the noble Lord, Lord Ramsbotham, on the case of Mubarek, the young detainee in Feltham young offenders’ institution. That would have persuaded me that the Bill should go through with this amendment, but there are so many risks attendant on it. Any death in police custody is properly investigated, and officers may stand before a criminal court. I do not think that the amendment is necessary, and I fear that it will make the police risk-averse.

Let me give a brief example of risk-averseness. On 22 December 1974, a long time ago now, a bomb was thrown through the window of 17 Wilton Street here in Westminster. It was then the home of Edward Heath. A marked police car was patrolling nearby, but the officers in that car did not know about the bomb. They saw a Ford Cortina motor car with a driver and two passengers acting suspiciously by driving through red traffic lights and the passengers looking about them. When they apparently noticed the police car, the Cortina picked up speed. The police car did the same because the officers suspected that the car had been stolen or was being used in a crime. However, because a force order had been issued to the effect that high-speed chases were not to be indulged in without permission of the then chief inspector in the police control room, the officers did not want to cause any danger to other people or to themselves, or to lose their jobs if they disobeyed that order, so they abandoned the chase.

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A year later, when three suspects who had given themselves up in the Balcombe Street siege were being interrogated, one of them, when asked what happened that day, said to me—I was on the investigation at the time—“We were chased”. The question was put to him, “What did you do?”. He said, “We went round the corner and abandoned the car”. One year later, five other people had died. The suspects were charged with the deaths of Ross McWhirter, Allan Quartermaine and a Dutch female travel courier, and with the maiming of many hundreds of other people. They were found guilty and sentenced. If only those officers had not been risk-averse, they may well have prevented a number of deaths and serious injuries. We should consider that.

During the previous stages of the Bill, the words “common sense” and “balanced” have been used. I

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ask us all to think carefully about a balanced approach to this issue. As it stands, the Bill will serve a very useful purpose, and will fill a lacuna in the law. I lost a valued colleague on the “Herald of Free Enterprise”. Having previously been a passenger on that ship myself, I can imagine the absolute horror and terror of those men, women and children as the boat turned over simply because the doors had not been closed. The “Piper Alpha” disaster, the death of Mubarek, the death of Sergeant Roberts in Iraq—one can see that this Bill might well cover all those cases, and indeed should. I fear that with the amendment, as I have already said, police will become too risk-averse. However, your Lordships could resolve another pressing problem by voting for the amendment; it would help reduce prison overcrowding. I think the clause should stand as it is.

Lord Maclennan of Rogart: My Lords, I had not intended to intervene in this debate, and so far have not done so in the course of the Bill, but the speech of my compatriot, the noble and learned Lord, Lord Boyd of Duncansby, prompts me to reflect briefly on some of the things he said, which certainly rang no bells with me. First, he said he had a conceptual difficulty with understanding how the public service could prosecute itself. He was answered inferentially by the noble Lord, Lord Imbert, who pointed out that in the event of a death being caused, it being apprehended that there was blame and an inquiry being held, it was perfectly possible to prosecute the police. The only question is whether that can be done by other, more ordered means than a prosecution that follows the exercise of executive discretion by the Home Secretary, or someone who has a clear political interest in the body for which he is nominally responsible.

The consideration that flows from that, however, is that, in my experience of more than 40 years in two Houses of Parliament, the wider remedy of a parliamentary inquiry into the circumstances of a particular case of death in custody will not give anyone a secure sense that the victims of gross mismanagement are in safe hands, so long as what is popularly called the “High Court” of Parliament exists. That has not been our experience as the years have gone by.

The second question arising from the noble and learned Lord’s speech—which I was surprised to hear, because I greatly admire him—was his reflection on the issue of Article 2 of the European Convention on Human Rights. He appeared to be casting doubt on the judgment of the Joint Committee of the two Houses of Parliament that Article 2 was at risk of being offended. He appeared also to be saying that he would prefer to wait until there was a judgment in the European Court of Human Rights making it clear beyond peradventure that this was the case. I am bound to say that I would prefer to rest my judgment on the apprehensions of our eminent committee.

Finally, when the noble and learned Lord went into his account of the Napier case in Scotland and talked about “slopping out”, it seemed to me that he had lost the plot. We are not talking here about

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mismanagement resulting in indignity to individual prisoners; we are talking about the loss of life, the right to life and standards that ought to be held in high regard by our public servants. Thank goodness that in this debate we have heard from policemen and others that those considerations can be sustained by the application to the public services, as to others, of the rule of law.

Lord Hunt of Wirral: My Lords, I declare an interest as a partner in a national commercial firm of solicitors, Beachcroft LLP, and as president of the All-Party Group on Occupation Health and Safety.

I thank the noble Lord, Lord Ramsbotham, for his introduction. The clarity and passion with which he opened this debate were of the highest order. He has set an entirely appropriate tone, according the debate the gravitas it merits. I believe we are debating the most important possible set of amendments to the Bill; they cut right to the heart of the Bill’s appropriateness and viability, both as a functional piece of legislation and as a historic legal landmark, the end result of many years of preparation, debate and redrafting. As many of the speakers have pointed out, the essential question before us is whether or not the Prison Service and other public bodies detaining individuals in custody owe a clearly defined, legally enforceable corporate duty of care to those individuals. My response is: of course they do. They must; it is a duty of the highest order. Rather like the noble Lord, Lord Judd, I find it incredible that this Government could or would say otherwise.

Those are the fundamental principles at the core of this debate about extending the Bill to deaths in custody. I do not think I need go into the arguments the Government have adduced, as they have already been prefaced by a number of speakers. I await with great interest to see whether the noble and learned Lord the Attorney-General will go back to those old arguments or accede to what is clearly an overwhelming majority, in all parts of the House, that would like to see a more positive response from the Government.

The noble Lord, Lord Dholakia, pointed out some case studies. Ten unlawful-killing verdicts have been returned by inquest juries. The Government say that that is an appropriate means of accountability; rather, they add a formidable impetus to the creation of a corporate offence of manslaughter.

The Government have pointed to public inquiries as a method of accountability. Yet as the noble Lord, Lord Ramsbotham, said, they have consistently and resolutely refused to hold inquiries into the deaths in custody of Zahid Mubarek and Joseph Scholes and have resisted the attempts of both families to have a public inquiry held in the civil courts. I have been around long enough to know that there is a pattern to this. Parties in opposition tend to call for public inquiries, while parties in government regard them as an expensive and unnecessary nuisance—and so the wheel turns. But I hope that noble Lords appreciate that this debate has not been about partisan politics. As the noble Lord, Lord Clinton-Davis, reminded us, it is really about justice. The poverty of the

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substantive argument against extending the offence is again obvious when one hears reference to cost. As the noble Lord, Lord Dholakia, pointed out, we are dealing with a gross breach. The families of those who die in custody as a result of the grossly negligent behaviour of a public service do not seek financial compensation but want a legal acknowledgement of injustice and a well-founded hope that responsibility has been accepted and lessons learnt. The refusal of Ministers to countenance applying these principles to deaths in custody will, I am afraid, reinforce perceptions of a Government fearful of exposing their own activities to the same level of scrutiny they seek to apply to others. Where is the substance of the Government’s commitment to the rule of law? Physician, heal thyself.

I also hope that Ministers will not respond frivolously by quibbling about the amendment’s wording. They now have to face up to the essential, fundamental point of principle which is at stake. Third Reading still lies ahead, with all the attendant possibilities of getting the details right. I want the Government to be brave and look the big questions of life, death and justice fully in the eye. There can be no greater responsibility than the power to deprive an individual of his or her liberty. If that power is exercised by the state so negligently that it deprives its own citizens of life, then accountability should be clear, transparent and clearly effective on a case-by-case basis. For deaths in custody, this law is an obvious vehicle.

I have one more example. A case where inappropriate restraint techniques, principally those intended for restraining adults, are used in the restraint of juveniles in custody, with fatal consequences, would be a perfect illustration of a corporate offence. The idea that it would be adequately dealt with by voters at the next election is at once laughable and tragic, truly an insult to our intelligence. I should add, in view of the speeches of the noble Lords, Lord Imbert and Lord Dear, that the amendments are in no way inimical towards the police or the Prison Service, and they should not be perceived in that way—on the contrary. I do not agree with the noble and learned Lord, Lord Boyd of Duncansby, who until very recently had been Lord Advocate for six years. I understand where he is coming from, but it is not just a question of the state prosecuting the state. The noble Lord, Lord Maclennan of Rogart, has already answered that point.

I simply say this, particularly to the noble Lord, Lord Imbert: if the amendment is accepted by this House today, as I fervently hope it will be, staff in all those services will be able to hold their head up high. They will be able to demonstrate that they do not need any special treatment, they have nothing to hide, they are willing to be judged by the highest standards and are subject to the same disciplines as the rest of us. They are not above the law, as the noble Lord said.

If the message goes out from this place that the services need special dispensation and protection, it would do a great deal of damage to their reputation. We are talking about highly trained and professional

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people, and it is patronising and indefensible to suggest that they, of all people, must be clad in immunity, particularly when the Bill sets the bar for prosecutions so very high.

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The choice before us today is clear: the noble Lord, Lord Ramsbotham, has outlined with great and devastating clarity the reasons for applying this offence to deaths in custody. As the noble Lord, Lord Judd, and my noble friend Lord Campbell of Alloway have said, failure to do so poses a potential contravention of Article 2. We must listen to our colleagues in that respect.

I urge other noble Lords to support the amendments. I do not want to tempt fate, but there has been a remarkable lack of support for the Government from their own Benches, apart from the noble and learned Lord, Lord Boyd of Duncansby. I detect the emergence, across the House and beyond it, of a consensus in support of the amendments. I would call it a consensus of the fair-minded that I encourage Ministers to join, even at this 11th hour. I hope that the noble and learned Lord the Attorney-General will be able to take some lessons from this debate and give the legislation the teeth it needs, opening up the Government to the application of this new offence, which is of their own making. Only by demonstrating that the Government fully accept their own responsibility, as custodian of those who have been deprived of their liberty, will Ministers create legislation of lasting value and credibility.

Lord Goldsmith: My Lords, I recognise the strength of feeling that has been expressed with complete sincerity by all those who have spoken, and I thank them. There was a lengthy debate on this in Committee and there has been a lengthy debate today on Report. I do not want to detain the House too long from doing what it plainly wants to do, if I detect its mood correctly, and expressing its view.

I agree with the noble Lord, Lord Hunt, that there is an issue of principle here. I should like to summarise the Government’s position. Ultimately, the issue of principle will come down to what position the other place—it has significantly supported the Bill and has not taken the view that the extension that the amendment of the noble Lord, Lord Ramsbotham, seeks should be included—will take. We will not know that unless and until it has another opportunity to consider this.

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