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The second concession is to review and strengthen the role of the forum on deaths in custody, as has been fully described by the Minister. The forum’s current remit is to identify and draw ministerial attention to good practice and issues relating to changes and improvements to safety in custody that require further attention. When discussing this House’s amendments in the other place, the Minister, Mr Gerry Sutcliffe, to whom I also pay tribute for his movement on these amendments, announced that the forum would report on its review within six months. I welcome that in the context of safety in custody but, important though that is in its own right, it is not the principal subject of this Bill.

Thirdly, the Government propose to give the Secretary of State the power to amend the Bill by affirmative resolution to increase the categories of duty of care. Mr Sutcliffe said in another place:

He also said:

Immediately, that movement was recognised by Mr Chris Mullin, who asked:

I submit that that is and remains the crucial question. In accepting the principle underlying the new offence—namely, that everyone is equal before and entitled to equal protection under the law—the Government are accepting that its purpose and content apply to failures of management in the duty of care when it is owed by government departments and other Crown bodies. I cannot for the life of me see why, having accepted that in the context of a Bill that is subject to carryover procedures, they cannot go further and draw up a clear timetable, as they have done for the review of the forum.

Since 5 February, I and, I suspect, many other noble Lords have been put under considerable pressure by relatives and other pressure groups representing those who have died as a result of corporate negligence outside custody. This pressure includes the suggestion that, by representing the case of relatives who have died as a result of corporate negligence inside custody, we are putting the Bill at risk. I am sure that none of those who voted for these amendments wishes the Bill to be killed; we wish only that the Bill that is passed is better than the one that was originally brought before this House. Mr Dominic Grieve urged Members in the other place,

Noble Lords will remember that, when we discussed these amendments on 5 February, the noble Lord, Lord Dholakia, and others made the point that we are not suggesting that every death in custody should automatically be followed by a charge under this Bill; we are talking only about those that involve gross breaches of management and the duty of care. Since that date, there have been at least two further cases of avoidable and gross breaches of management: the murder of Shahid Aziz in Leeds prison, in depressingly similar circumstances to the murder of Zahid Mubarek in Feltham, and the suicide of Michael Bailey in Rye Hill, which attracted scathing remarks from the coroner about management failure. The depressing continuance of avoidable deaths in circumstances for which the Government are responsible is surely a very strong reason for bringing the now accepted principles behind the Bill into effect as soon as possible. I was therefore very concerned to read a report in the Observer on 29 April, referring to our vote on 5 February, which stated:

That fury implies that proper management is not currently being carried out by the Prison Service regarding the duty of care that it owes to all those in its custody. If that is true, I am sure that it will be of considerable concern to the Minister.

As I said on 5 February, these amendments are not about examining government policy or the allocation of resources; they are, in line with the remainder of the Bill, about good management. Improved management supervision was one of the recommendations that I made to the Government in1999 in a thematic review of the prevention of suicide in prisons, Suicide is Everyone’s Concern, conducted at the request of the then Minister, Joyce Quin—now the noble Baroness, Lady Quin—and accepted by the then Home Secretary, Mr Jack Straw. Good management does not depend on resources but, rather, on the whole ethos, structure and direction of management. That is what the Bill and the vote of this House are all about.

Moved, as an amendment to Motion A, Motion A1, leave out from “House” to the end and insert “do insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do disagree with the Commons in their Amendment No. 10A in lieu”.—(Lord Ramsbotham.)

Lord Lee of Trafford: My Lords, when we last debated this Bill in your Lordships’ House in early February, we saw the House at its best. Opposition parties rallied behind the noble Lord, Lord Ramsbotham, whose knowledge and experience on the deaths in custody issue is recognised by all sides in the Palace of Westminster and beyond, and inflicted a heavy defeat on the Government. There was virtually no support for the Government’s stance from their own Benches, and even Ministers were hard pushed to find serious, sustainable arguments to justify their position.

We had hoped that, on reflection, given the scale of the defeat, the Government would accept our amendments but, with John Reid in overall charge of the Home Office, we were not optimistic. However, the creation of the new Ministry of Justice offered fresh hope. I categorise politicians into two broad groups: warriors and healers. John Reid, as the Cabinet bull terrier, was unquestionably a warrior, while I suggest that the noble and learned Lord the Lord Chancellor and new Secretary of State at the Ministry of Justice is more of a healer. He has an avuncular presence, beautifully described, I remind the House, by the Leader of the Official Opposition in this Chamber some time ago as delivering more ho-hos than a Father Christmas in a department store.

How fitting it would have been if the first act of the new Ministry of Justice had been to grant justice to those who die in custody and bring them within the scope of this important corporate manslaughter Bill. Sadly, it was not to be. The new Ministers and their civil servants searched for a way out of their dilemma and came up with a package of modest improvements to the Bill, clearly buying off doubters on their own Benches in the other place. However, that should not have been particularly difficult, given that those Back-Benchers were obviously focused elsewhere. Half the Parliamentary Labour Party was engaged on active service north of the border fighting the SNP, while the other half was back at Westminster fighting each other for the deputy leadership of the Labour Party.

But this is a serious issue. Putting the Prisons and Probation Ombudsman on a statutory footing is to be welcomed, as, I suppose, is a strengthening of the Forum for Preventing Deaths in Custody, although few seem to have heard of this body and I can find no reference to it in earlier ministerial contributions on the Bill. The affirmative resolution merely puts off, possibly till tomorrow, what should be done today.

Having participated in debates in this House and having studied in Hansard what was said in the other place last Wednesday, I have to say that no substantial arguments have been put forward for the non-inclusion of deaths in custody in the Bill. Yes, there are hints of the police becoming risk-averse, of prison overcrowding and perhaps of problems with the Prison Officers’ Association but nothing substantial.

For the near 12 months that I have had the privilege to be a Member of this House, I have seen and heard the Minister at the Dispatch Box on many occasions. I genuinely believe that she is a sincere and caring Minister who, if it were up to her, would wish to include deaths in custody in this Bill. It is our wish too.

3.30 pm

Lord Hunt of Wirral: My Lords, I start by declaring my interest in the register as a practising solicitor. I, too, join the noble Lords, Lord Ramsbotham and Lord Lee of Trafford, in paying tribute to the Minister. She has, as the noble Lord, Lord Ramsbotham, said, been courteous, frank and open. I thank her for that and for her willingness to find a way through the problems that have arisen. I welcome her to the Dispatch Box in her ministerial role in the new Ministry.

I hope that the Minister understands that this is a hugely significant debate for many of us. Matters of constitutional importance are at stake. The first point that I want to make is that the amendments passed by this House by a substantial majority earlier this year were serious, positive and constructive. As the noble Lord, Lord Lee of Trafford, put it, it showed the House at its best. Those amendments greatly enhanced the Bill and restored balance to it. They were entirely consonant with the primary purpose of this important legislation, and in no way conflicted with or undermined it. They did not emasculate, vitiate or weaken it. Indeed, the amendments unambiguously extended the remit of the Bill to protect some of the most vulnerable people in any country—those who are incarcerated, whom the state has deprived, legitimately, of their liberty.

This is what the Minister described as the single issue, but we on all sides would stress that this single issue is a serious and profound one, because holding individuals in custody is a massive responsibility for any Government in any country in any era. Exemption from the full extent of that responsibility is unacceptable. In seeking to reject these amendments, Ministers are effectively refusing to concede that they and other agents of the state owe a full, total and transparent duty of care to those they hold in custody. They have never explained why. I would venture that they have not made the argument because there is none. There is certainly a case for arguing that, by exempting themselves in this way, the Government are running the risk of ending up in breach of Article 2 of the European Convention on Human Rights. There was an interesting if inconclusive debate on this at Report. Far more importantly, this is an argument about natural justice. Is it not now time for Ministers to accept and acknowledge that the existing systems of accountability for death in custody are regarded by many people as pretty useless?

Reference has been made to a report in the Guardian last Friday, in which an inquest jury was described by Vikram Dodd and Eric Allison as having delivered a “devastating verdict” when it criticised the Prison Service for allowing a violent white prisoner to remain in a cell with an Asian man whom he later beat and stabbed to death. That report was only last Friday. The statistics are worrying. The families in that case and in the Mubarek and Scholes cases had to endure the most difficult processes in addition to the grief of losing a loved one. Can Ministers really be arguing that bereaved people in search of justice and answers should have no easier recourse than to take the Government to the Court of Appeal just to get an inquiry? The Bill should be even-handed; there should be one rule for all. In an outstanding speech in another place, my colleague Dominic Grieve, the shadow Attorney-General, said that if this House were to prevail—and he were to take on that responsibility in government—he would accept that this was the right way forward.

Of course the suggested compromise deserves our scrutiny and careful thought, but it is unsatisfactory for a number of reasons. First, the inadequate function of the amendment itself just provides an order-making power to add deaths in custody to the public functions that the legislation will cover, but there is no guarantee that that power would ever be used. The Minister has virtually indicated that it would, but the Minister in another place stated unequivocally that there was no guarantee that the order would be used. He said:

—that is, the affirmative procedure for bringing forward this order. To my mind, that renders this proposal, well intentioned as it may be, little more than a smokescreen.

There is, of course, another reason to be clear and unambiguous in the Bill. I know that the Minister is in rude health, but she is a member of a Government in transition. I have no wish to use the phrase “somewhat undead”, but we are now in between Governments. We have an outgoing Prime Minister and an outgoing Home Secretary. Any oral commitment, however well intentioned and sincere, will not bind anyone with a new Administration that is mere weeks away.

The noble Lord, Lord Ramsbotham, has provided a comprehensive critique of the ombudsman and forum proposals. Following that, suffice it for me to say that those proposals look flimsy, insufficient and inappropriate in the light of his analysis. They are no substitute for a full and fair extension of this legislation to protect a group of people, those held in custody, who are entirely and uniquely at the mercy and under the protection ofthe state and its agents. As the noble Lord, Lord Ramsbotham, said, this is a glaring deficiency.That is why I urge my colleagues and the House wholeheartedly to support the Motion standing in the name of the noble Lord.

Lord Dear: My Lords, I welcome the concessions which the Minister has already set out. I join others in congratulating her on how that has happened and how those views have been put forward today. I reflect upon what I said to your Lordships’ House when this was debated at length on 5 February, and I repeat: in any developed country which believes in itself and its tradition, a litmus test of that society is how it treats prisoners held within the official places of incarceration. They are listed, and need no further comment from me; police cells are one and prisons are another, as the noble Lord, Lord Ramsbotham, has indicated.

It seems that we hold up our hands in horror time and time again at what we see taking place in banana republics, in central African republics and, on occasions, in Middle Eastern republics. We look at how prisoners are frequently treated in those places and congratulate ourselves on how we do things differently in this country. Of course, by and large, we do, and, by and large, we have something which we can be proud of in this country. If that is the case, why are we pursuing this debate today? What have we got to hide? Why raise questions in the minds of those who seek to criticise about our seeking officially to exclude ourselves from something which seems patently clear? As a civilised country, we should be prepared to offer ourselves up for examination on the way in which we conduct prisons, police cells and so forth.

The noble Lord, Lord Ramsbotham, has already commented upon prisons, and I, declaring an interest, of course wish to comment about those held in police custody. When, in February, I checked the official ACPO view, it was that it was rather surprised that there were moves to exclude the police from the Bill. Now, I understand that a letter is in circulation in which the official ACPO view is expressed, which is that it is quite happy to be excluded from the Bill and to enjoy the exclusions that apply to prisons and elsewhere. This morning, I checked with the ACPO spokesman, and he told me that, in coming to that view, ACPO found it a borderline decision, but was still happy to find itself outside the compass of the Bill. I have to tell noble Lords what I told him; that I was extremely disappointed to hear that. I would have thought that a mature service that believed in itself would have nothing to fear and nothing to hide. I do not speak with any remit—nor would I speak with a remit on behalf of ACPO—when I say that I believe that the police should be included along with prisons and the other organisations and places that we are aware of. I think that ACPO is wrong and that we in this country should be prepared to be transparent and to expose the circumstances of what happens in our prisons, our cells and elsewhere to court examination. For that reason, I support Motion A1.

Lord Lea of Crondall: My Lords, many of us on this side of the House who support the Government are concerned that we get an answer on this so that the Bill gets on to the statute book. I remind the House that the Corporate Manslaughter and Corporate Homicide Bill, which has enormous support in the trades union movement, has a much wider footprint than simply police and prisons. I shall come to them in a moment, but we ought not to lose sight of the tremendous advance that the Bill will make in the protection of millions of workers. That is a question that the noble Lord, Lord Hunt of Wirral, is professionally very seized of. We are very anxious to see the Bill get on the statute book.

When it comes to the progress made by the Government in ensuring that the police and the prisons will be covered by the legislation, the noble Lords, Lord Hunt and Lord Lee of Trafford, failed to draw attention to the quite narrow point now at issue. The noble Lord, Lord Hunt, referred to obiter dicta by Mr Gerry Sutcliffe—I think I am quoting him accurately in distinguishing the issue of whether the order would be used rather than when it would be used. I shall ask him a question in return. If it were possible to say that the issue was when the order would be used rather than whether it would be used, would that make a difference to his attitude? We cannot go on for ever playing with words, but that is a substantial point. My understanding is that there will now be progress. To make this happen in the prisons and police stations overnight, as it were, is an issue, and I am not surprised to hear the careful discussions that are taking place. For those of us on this side who are voting for the Government on the basis that this will happen, it is a question of when and not whether. The noble Lord, Lord Hunt, can give further consideration to the matter if that point worries him. I also put the same point to the Minister.

3.45 pm

Lord Dholakia: My Lords, we, from this side of the House, support the powerful case made by the noble Lord, Lord Ramsbotham. We went into the Lobby with him on the previous occasion, and we would join him again if he were to call for a Division. I have no problem with the implication of the noble Lord, Lord Lea, that the Bill is much wider than simply the two aspects—police cells and prison cells—we are talking about. If so, why exclude these two very important areas from the Bill? If the Government were to include them, the Bill could become an Act and there is no problem.

It is important to remember what the noble Lord, Lord Hunt, rightly said a little while ago; that the original amendment to bring deaths in police custody and prison custody within the ambit of the Corporate Manslaughter and Corporate Homicide Bill received very strong backing when it was before your Lordships’ House: it had a substantial majority.

Today’s debate on the Commons amendment does not help to rectify the anomaly that many noble Lords pointed out last time. I do not underestimate in any way the work of the prison ombudsman, but this matter is far too important simply to be left to investigation. We would like to ensure that no one is excluded from this legislation.

I say straight away—and a number of people have complimented the noble Baroness on her performance on other Bills—that she is a listening Minister. I hope that she will listen very carefully to the arguments advanced and that there will be a way to move forward on this issue. We cannot deny that there is a slight movement in our discussions with the Minister on the Government’s part, but it is not sufficient to allay our fears about lack of action on deaths in a custodial situation. We need to bring to task those who fail in their duty of care when persons are placed in police or prison cells.

I do not see why the Government should be worried. It would not of course mean that all or most deaths in custody would result in prosecution for corporate manslaughter, as pointed out by the noble Lord, Lord Ramsbotham. That would apply only when, exceptionally, there had been a gross breach of the relevant duty of care. In those circumstances a prosecution for corporate manslaughter should enable the courts to hold that a serious management failure had occurred resulting in an individual’s death.

I note that it is no longer the Government’s case that deaths in custody should be exempted from the scope of the Bill. I hope that is the case because I can well understand that there is a need for discussions with the Prison Service, as the Minister mentioned earlier, and the police. I do not dispute that. That is right and how it should happen.

Let me advance some of the arguments mentioned by the noble Lord, Lord Dear, about the police. I have looked at the response from ACPO, the Association of Chief Police Officers. It argues that mechanisms are already established to ensure that all such incidents are robustly and independently investigated. However, the IPCC, the Independent Police Complaints Commission, the one body with an independent oversight on policing matters said on the Government’s draft Bill for reform:

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

This is wholly unsatisfactory, and the Commons amendment goes nowhere near the original amendment to rectify it.

I am aware that the Ministry of Justice is in consultation with the governors of prison establishments on this subject and requires more time to conclude that discussion. That is unacceptable. There are still grieving parents, who have no answers to the question of how many vulnerable youngsters have died. I have secured a number of debates in your Lordships’ House on deaths in custody, but I have never succeeded in getting the Home Office to set up an independent inquiry. We cannot allow this situation to continue for the next year or two. 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. That cannot be right. Indeed, it is indefensible; 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.

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