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When we consider whether there have been serious faults in the way in which a particular activity has been managed, it is not apparent that questions of management and the line-management chain can be easily separated from wider questions about how a particular activity was organised in the first place. Those questions can involve wider issues of public policy, including, inevitably, resource issues.

Applying the new offence risks bringing the criminal courts into an examination of those issues. We are not satisfied that that would be appropriate and we are concerned that the application of the criminal law might lead to risk aversion—not the sensible management of risk, which is what noble Lords would wish, but the adoption of an unduly defensive approach that is not ultimately in the overall public interest. While we are prepared to take the step that I have indicated, we are concerned that the uncertainties of extending the offence to an area that can involve very significant questions of public policy have to be recognised in the way in which we bring this forward.

It is important to allow time for the new offence to bed in with regard to its application to government departments and the wider public sector in the core areas of employer and occupier responsibilities. That will enable the courts and departments to become familiar with the process of investigation and prosecution in areas where public policy is less to the fore, before considering how we take forward wider applications of the offence. It will also provide time for the changes to the ombudsman’s powers to become established and for the forum for preventing deaths to be further developed, and it will give us time to consider how the wider application of the offence will operate alongside those changes. We also need to engage with the Prison Service—to which I pay tribute for the work that it does, not only in England and Wales but also in Scotland and Northern Ireland, which are covered by the Bill—and to discuss the application of the offence to it to try to tackle the issues of public policy that I have indicated need to be at the fore.

Because the Government think that it is right to keep this issue under review in order to consider when exactly the right time would be to extend the offence, we consider that the right way of proceeding is by way of a power in the Bill. That will enable both your Lordships’ House and another place to debate what the Government propose at the right time and to bring that forward, and ensure that noble Lords and those in another place have the opportunity to debate and consider the proposals in detail. We believe that that is an appropriate way to deal with this important issue.

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I appreciate that some noble Lords may be worried that the initiative for the use of this power will remain with the Government, but there will be considerable opportunity to question the Government on the matter through, for example, Select Committees. The Home Affairs Committee and the Joint Committee on Human Rights have both demonstrated their interest in this matter so far, and indeed are enabled to bring forward Ministers to be held to account. There are many opportunities in your Lordships’ House to question the Government on progress, to ask for more detail as the work is undertaken and to bring the timetable to fruition. In addition, our proposals for putting the Prisons and Probation Ombudsman on a statutory footing will include provisions for publishing and laying before Parliament various reports. That will provide a new source of information on the management of custody.

Before I conclude, I want to offer a brief explanation of the difference between the amendment before us today and that offered on the previous occasion. Two changes have been made. First, this amendment would insert a new clause into the Bill enabling Clause 2, which deals with relevant duties of care, to be amended to include duties owed to those in custody. Previously, the amendment would have amended Clause 2 itself.

The second change is to the words in subsection (2)(a) of the new clause. It is in slightly different terms from that which we considered previously. On reflection, we considered that the drafting called for some improvement to make it clear beyond doubt that the order-making power is sufficient to disapply exceptions to the Bill, such as the exclusively public functions exemption. That will be necessary to give proper effect to extending the relevant duties of care to those in custody.

When I began, I paid tribute to all those who have engaged with me in this process. I believe that it is time to put the Bill on the statute book. I beg to move.

Moved, That this House do not insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do agree with the Commons in their Amendments Nos. 10C and 10D in lieu thereof.—(Baroness Ashton of Upholland.)

Lord Ramsbotham rose to move, as an amendment to the Motion, 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 Amendments Nos. 10C and 10D in lieu”.

The noble Lord said: My Lords, when we last debated these amendments, on 22 May, I argued, as I had done at Third Reading on 28 February, that my purpose in tabling them was to rectify a glaring deficiency in what was otherwise a generally welcome Bill by including a duty owed to anyone held in custody. As the Minister has told the House—and I am enormously grateful to her for the care that she has shown in explaining what has happened since we last debated this—the amendments were then debated again in another place and had been returned to us in the form of two new amendments, Amendments Nos. 10C and 10D, which starts the whole ping-pong process over again. I make that point now because I am aware that some noble Lords are understandably—but, on this

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occasion, unnecessarily—cautious that in proposing them again I am entering into dangerous constitutional waters. In taking this opportunity to propose them, I do not intend to repeat all that I have said on previous occasions, including my concern that public policy, exposure and expense should still be used as reasons when we are talking about management and the duty of care. Instead, I intend to rely on the words used by the Minister, Mr Gerry Sutcliffe, and other members of the other place during their most recent debate to make my case for me.

In separate interventions, the Minister said that deaths in custody were a “crucial” issue, a “key” issue, a “serious” issue and that the Government took them seriously. He said that the Government’s feeling was that the “existing routes” for examination of deaths in custody, including through the coroners’ courts or the Prisons and Probation Ombudsman, were,

I find this statement interesting, to say the least. It confirms what I suggested to your Lordships on 22 May—that the concessions that the Government announced that they had made, following our first vote, were cosmetic and had nothing to do with the purpose of the Bill.

The Minister went on to say, as the noble Baroness has also done, that the Government now accepted the order-making power in the Bill and recognised that it was right in principle for the offence of corporate manslaughter to go,

He explained that the Government were very clear that there was no reason why, as employers and occupiers, government departments and public authorities should not also be open to prosecution for the new offence. He said:

If the Minister had come to your Lordships’ House and used that logic to argue why the duty owed to anyone held in custody should be included in the Bill, he would not have needed to test its opinion, because few would have disagreed with him. Furthermore, by including those who are in effect their victims—the bereaved relatives of those who die while in their custody because of gross bad management or failure in the duty of care—the Government would be true to their frequently announced intention to rebalance the criminal justice system in favour of victims.

If the Minister had done that, he could have quoted support from Mr John Denham, chair of the Home Affairs Select Committee in the other place, who said that his committee, the Work and Pensions Committee and the Joint Committee on Human Rights had explicitly made recommendations on the issue and saw no reason in principle why custody should be excluded from the Bill. Mr Denham went on to say that, intellectually, it was hard to oppose the Lords amendments, which were entirely consistent with the line that he had taken throughout the Bill’s progress.

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So what is the sticking point? Why are we arguing that the Government should seize an opportunity that they have created to enable them to better manage a duty of care for which they are responsible and accountable? Once again, it is a question of when and not if—a question that is not answered by the use of the word “may” in Amendment No. 10D. Here again, I must pay tribute to the noble Baroness, Lady Ashton, who has met once more the noble Lords, Lord Hunt of Wirral, Lord Dholakia and Lord Lee of Trafford, and me to listen to our case, which is based on arguments used by her colleague, Mr Sutcliffe. Our case is very simple: now that the Government have agreed to the concept in detail, all that remains to ensure the passage of the Bill is that they should name a date for custody to be included on its face.

We realise that the Minister is limited in how much she can agree with us because she is in effect only the messenger for the Home Secretary and the Prime Minister, neither of whom will be in office in two days’ time. But because of the reputation that she enjoys in this House for always being at pains to listen and to respond to arguments, we are confident that she will present our case to and impress it on her political masters. I am at a loss to understand why the Government continue to refuse to name a day after which those of their employees whose management or duty of care results in the unnecessary death of someone whose health and safety—not to say right to life—is their responsibility should be liable to prosecution under a Bill that they themselves have designed to allow that course of action to be taken.

What is more, each time we have discussed these amendments, we have done so under the shadow of further incidents that qualify for consideration. On 5 February, I listed a number of cases, such as the murder of Christopher Edwards and Zahid Mubarek and the deaths of Sarah Campbell and Paul Day. On 22 May, I had to add the names of Shahid Aziz, murdered in Leeds in depressingly similar circumstances to Zahid Mubarek, and the suicide of Michael Bailey in Rye Hill, both of which had come in for detailed criticism by the coroner. Today, I have to add the attention drawn recently to the appalling circumstances leading to the suicide of 14 year-old Adam Rickwood in Hassockfield, and this week the coroner will give his verdict on the death of 16 year-old Gareth Myatt under restraint at Rainsbrook secure training centre.

How can any responsible Government continue to prevaricate over the obvious and pressing need, reinforced weekly if not daily by yet more examples, to take advantage of the means that they have created to take action against those whose gross bad management leads to unnecessary deaths for which they are ultimately responsible?

5.30 pm

On 5 February, I also said that I found it extraordinary that the Government should include public inquiries in the list of activities that made the application of the Bill to custody unnecessary. I mentioned that the only such inquiry that had taken place—that into the murder of Zahid Mubarek, which resulted in the naming of a number of culpable Prison Service staff—was the result

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of direction from your Lordships’ House, because every other recommendation, by coroners in particular, has been rejected. I wonder whether now that it has assumed responsibility for the administration of custody the Ministry of Justice will review those official recommendations, such as that made very strongly at the inquest into the death of Paul Day in Frankland in 2002, emphasising that it is no longer prepared to tolerate or condone such clearly identified failures in its owed duty of care.

I am particularly concerned that, during the last debate in the other place, Mr John Denham should have speculated that the Government’s real aim in refusing to name a date might be,

He added that having a sense of a timetable,

My concern about that is that if the Government feel that the management of the Prison Service needs time to introduce proper management of those in custody based on the duty of care, that amounts to a tacit admission that they know that the Prison Service is currently deficient in the way in which it carries out its duties. If that is so, I submit that it is disgracefully irresponsible to continue knowingly to allow something for which the Government are accountable to the public to be of a lower standard than that laid down and expected and that the swiftest possible action should be taken to put it right.

I suspect that many noble Lords will, like me, have been put under pressure by a number of organisations representing bereaved victims of corporate manslaughter elsewhere than in custody, suggesting that to press the case for custody to be included is to risk the killing of the Bill. To all of them I have said that nothing is further from my mind. It should not be either private-company or government-custody bereaved victims being served by what is so obviously a welcome and needed Bill, but both. Only the Government can kill the Bill.

I was also concerned to see the misleading suggestion in yesterday’s Observer that the Bill would fall if not passed before 17 July. I do not know how the newspaper came by that information, but it is mischievous nonsense. We have until the end of the Session to complete its passage and during that time I would be more than happy to discuss a possible date, accepting that that cannot be tomorrow.

When I was Chief Inspector of Prisons, I had on my desk words spoken in the other place by the then Home Secretary, shortly before 10 o’clock on the evening of 20 July 1910:

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That was, of course, the 36 year-old Winston Churchill.

We like to think of this country as still being civilised. When these amendments were last debated in this House, I quoted the Delegated Powers and Regulatory Reform Committee, which in its 10th report during our current Session said:

I also quoted Mr Dominic Grieve, who urged Members of the other House,

Confident that the House will once again show sign and proof of its stored-up strength and living virtue, I beg to move the amendment, which is designed to enable us to seize this opportunity to do a particular good that has been too long in coming.

Moved, as an amendment to the Motion, 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 Amendments Nos. 10C and 10D in lieu”.—(Lord Ramsbotham.)

Lord Lee of Trafford: My Lords, today’s debate is about unfinished business and the stubbornness of government. As the noble Lord, Lord Ramsbotham, just said, we want this Bill. All that remains in dispute is a definite date for implementation of deaths in custody, the Government having accepted the principle of it.

Throughout the course of this Bill there has been virtually no support from the Government’s own Benches in either House for the exclusion of deaths in custody. Indeed, many prominent Labour politicians have urged the Government to go firm on an implementation date. In the other place on 5 June, Chris Mullin said:

John Denham said:

Andrew Dismore said:

Those are the words of three prominent Labour Members of Parliament. Indeed, I suspect that, had she got her private way, the Minister would probably have wished to be associated with them. However, we have all had experience of defending unpopular positions from the Dispatch Box.

With the obvious pressure from the Government’s own side, support from Liberty and Justice, and two heavy defeats in your Lordships' House, one would have thought that the department would have reflected long and hard and treated the issue as a major concern.

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But the Lord Chancellor and Ministry of Justice officials were apparently focused on weightier matters. Last Friday’s Times carried the headline:

A submission from one of the Lord Chancellor’s private secretaries, dated 7 June—two days after the corporate manslaughter debate in the other place—requested permission for the departmental team of morris dancers to name themselves the Lord Chancellor’s Men. The private secretary, himself a member of the dancers, tells the Lord Chancellor that they dance in the Cotswolds tradition and in the Bampton style, which involves the use of handkerchiefs and sticks. Clearly the private secretary had done his homework as the submission went on:

and added,

With such submissions clearly dominating the Lord Chancellor’s Red Box, we can understand why little further progress has been made on the deaths in custody issue. But tonight we are debating a very serious issue. The Government’s reluctance is due, apparently, to the situation in prisons, particularly overcrowding, and their tender relationship with governors and the Prison Officers Association. But our contention is that the overcrowding issue is not a reason for non-inclusion of deaths in custody. Indeed, we believe that that very overcrowding is precisely the reason why they should be included in this Bill now.

Tonight the Government face a third heavy defeat. Let us hope that they use the opportunity of a new Prime Minister and new Administration to see sense and put this Bill on the statute book as soon as possible, which we all want, and to include within it deaths in custody.

Lord Lea of Crondall: My Lords, I certainly share the view that we cannot afford to kill the Bill, and think that we have more or less got as far as we are going to. Let me summarise where we are and its logic. I ask my noble friend not to contradict my interpretation; she might prefer to nod silently.

My noble friend has spoken on the need to engage the Prison Service. Side by side with the acceptance by Ministers in both Houses of the principle of the Bill covering prisons and police stations is that it is a matter of “when” rather than “whether”, to quote the noble Lord. We are talking about the timescale within which discussions can come to some fruition with the prison authorities and the police service. As the Minister has explained, on this territory it is not possible to accept the suggestion made in this place last time by the noble and learned Lord, Lord Mackay of Clashfern, because one cannot put a timescale on these indispensable discussions with the two services. One picks up the point already made that this is at a time of unprecedented stress in both services.

I shall hazard a scenario about the timescales for these discussions. Will they take 20 years? I do not think so. Will they take 10 years? I should not think

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that that is what is meant. Will they take five years? Surely not—that is longer than the lifetime of a Parliament. I assume that we are talking about a maximum of three to four years, if one leans over backwards to be reasonable about it. I know that my noble friend cannot change her brief one millimetre on this, but the interpretation that is reasonable for a reasonable person to put on where we are is that she does not need to say anything along the lines of how many years. We should be able to accept the logic of the situation.

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