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The noble Lord said: My Lords, I am conscious that this is the fifth time that I have tabled an amendment that is concerned with trying to ensure that custody, and those held in custody, are subject to the same purposes of the Bill as victims of gross management failure, for which private companies are to be held responsible. I am conscious, too, that many noble Lords feel that the Government have gone as far as they can in giving way on the principle, and their other concessions over investigation and prevention of deaths in custody. These are enormously welcome in themselves, given the current situation in our prisons. However, they are not strictly relevant to the purpose of the Bill. Pressing for a date could therefore be felt to be somewhat ungracious, but we owe a duty to the victims, whose cause the Government so support. That duty requires us to press, as far as we can, for this one last phase.

I am conscious that time is running out; only two days before the rolling-out procedure are available to the Government. Once again, I am enormously grateful for the willingness of the Ministry of Justice, mentioned already by the Leader of the House. I had a very frank and friendly meeting last night with the Secretary of State, Jack Straw. It showed a new, fresh approach to these matters since the Ministry of Justice took them over. This is entirely to be welcomed, given the complexity, relevance and urgency of these issues. He explained to me that he had only been in his current post for two weeks and was not responsible for the earlier passage of the Bill. I then reminded him that we had had discussions about Prison Service management, particularly in the context of suicides, when he was Home Secretary. I explained that in now formally proposing a date some time ahead, I was allowing time for what the Minister, Maria Eagle, had said in the other place were significant changes to the management of the duty of care that would be required.

Personally, and from experience, I do not believe that any changes to managerial responsibilities are required, only to the way in which those responsibilities are exercised. As I have said previously, it is inexcusable that there should be deficiencies in the duty of care that those currently responsible for running our prisons owe to those committed to their care by the courts. Those responsibilities apply whatever the problems imposed by overcrowding or lack of resources. They are incumbent on all managers at all times wherever

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they are. I also repeated to the Secretary of State that the last thing that any of those of us who voted against my amendments wanted was to kill the Bill, which was why I was now suggesting a staged rather than a simultaneous implementation of the Bill to the private sector and custody to satisfy all parties.

From these Benches it is easy for me to say that in making one last effort to obtain acceptance of the need for a more definite commitment than the word “may” to the application of the Bill to the managers of those held in custody, I am not playing party politics. I say that because I was intrigued to read in the latest debate in the other place that, with the exception of the Minister, not a single Member spoke against the amendment.

Let me quote Mr Andrew Dismore, chairman of the Joint Committee on Human Rights, in particular. He said that if the Prison Service is against the introduction of the Bill, it is the wrong position for it to adopt. He continued:

He went on to say that he did not find the Government’s arguments persuasive and that:

Mr David Winnick asked the Minister whether she was,

The Minister did not answer the direct question of the shadow Attorney-General, Mr Dominic Grieve, as to whether the problem about agreeing a finite date for implementation lay with the Prison Service, the police, some other organisation or the bureaucrats in the departments. I found that interesting because in an earlier debate in the other place, Mr John Denham said that a date would help the Prison Service because it would have a clear timetable for putting in order whatever was needed to be put in order.

When we debated this issue last week, because of time I deliberately did not mention the police, although I realise that their views must have influenced the new Home Secretary in her reported reaction to the Bill. Fortunately, my noble friend Lord Dear is well aware of what these are and I will leave him to explain them to the House.

I suspect that like many Members of the House I have been inundated with messages from those who are understandably very concerned about the outcome of our debate on this welcome and important Bill. I have made it clear to all of them that in pursuing my amendments as far as I am constitutionally allowed, I am doing so in the interests of victims of gross management failure for which the Government are ultimately responsible, trying to ensure that they are not treated any differently from the victims of a similar failure of private sector management.

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The Government appear to have something of a blind spot over disciplining those guilty of management failure while responsible for people held in the custody of the state. Frankly, I do not believe that to be an honourable position for any Government of any civilised nation to maintain. Therefore, one final time, I beg to move.

Moved, as an amendment to Motion A, Motion A1, leave out from “House” to the end and insert “do insist on its Amendments 2, 3, 5, 6 and 10, do disagree with the Commons in their Amendments 10K to 10N in lieu and do propose Amendments 10P and 10Q in lieu thereof”.—(Lord Ramsbotham.)

Lord Dholakia: My Lords, I support the Motion proposed by the noble Lord, Lord Ramsbotham. I shall be brief because I have to go to the Grand Committee shortly for three orders. I simply want to inform the House about the lunch earlier today arranged by the noble Baroness, Lady Gibson, at which the first question put was about the corporate manslaughter Bill. It was obvious from those who spoke at that meeting, particularly those from the Prison Officers’ Association, that they saw no objection to implementing this aspect of legislation, and the sooner, the better. That came from the Prison Officers’ Association. That now leaves only the police, and I look forward to reading tomorrow what the noble Lord, Lord Dear, has to say on this matter. I have spoken to a number of senior police officers and their reaction was more or less the same as that of the Prison Officers’ Association. I therefore support the amendment proposed by the noble Lord, Lord Ramsbotham.

Lord Lea of Crondall: My Lords, I, too, have just been to the meeting with the Prison Officers’ Association. As the noble Lord, Lord Dholakia, will confirm—and this rather surprised me—it said that this was the first meeting it had ever had with parliamentarians. That is astonishing considering its members are in the front line of all these problems. They are very open-minded about the Bill’s provisions and the extension to prisons, as the noble Lord, Lord Dholakia, has said, but that is in the Bill with the order-making power so let us not talk at cross- purposes. They said—and the noble Lord, Lord Waddington, may confirm this—that they needed to judge the extension to prisons in the light of the manifold problems they have to face, not least the radicalisation of some classes of prisoners, which has been debated in this House, and the lack of work and educational facilities. The balance of all these problems is a factor for consideration.

If we want to change the culture of prisons—and that is prima facie what this Bill is in part about—it is obviously not just a question of adopting a clause or not. It is a hugely more complicated matter. The Government have themselves made the point that the talks which need to take place and be a precondition for triggering the order are not yet taking place. I would like to put the emphasis on those talks.

Let me put it another way for those people who have rather fixed ideas about what a trade union is, what it is for and what it does. The representatives of the prison officers are in the firing line. The

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responsibility they have for the day-to-day handling of many difficult problems is not just a question for the prison governors—and we may hear from a former prison governor—but there is the significant matter of the morale and involvement of the Prison Service if that culture is to change. I hope that my noble friend will be able to say that full and, I trust, positive consideration can be given to the request that the Prison Officers’ Association should be involved in any talks—not hypothetical talks but talks which we will be assured will take place in the not-too-distant future, sooner rather than later. But defining our terms is not for today; in the light of all those considerations, putting a date in the Bill is not the right way to proceed.

Lord Lee of Trafford: My Lords, the Bill represents a commitment made in the Labour Party’s 1997 election manifesto. Is the noble Lord seriously suggesting that there has not been time for the Labour Government to bring about any talks that were necessary?

3.30 pm

Lord Lea of Crondall: My Lords, I should point out to the noble Lord that we in the TUC have been campaigning for this Bill for years. It just happens to be a fact of life that we were largely talking about something different. How the relationships between prison governors, prison staff and prisoners should be handled in this context is rather different from the manslaughter liabilities of an employer when someone falls off the top of a building. It is much more complicated. I abstained last time, and I gave my reasons. The trio or perhaps now the quartet of ping-pong sessions back and forth has been quite productive, because it has shed light on some of these issues. Given that, rather than making this a yes or no proposition, I say that this is now a matter of interpretation and a consideration of how we move on from here.

In conclusion, therefore, I am not asking my noble friend to respond to my broad remarks about the ideas that talks are about to start. However, the discussion I had with the Prison Officers’ Association is one I would like him to respond to. How are these people to become involved? The genie is now out of the bottle and there is no going back. The Bill is quite radical, and, wearing my TUC hat, I must say that there can be no question of this Bill falling. In the light of the conversations that have taken place, I consider that the Bill should pass, not least because rejection now would somehow not be proportionate to all the considerations that have already taken place. The process is now going forward and I hope that my Labour colleagues who like me abstained last time or voted against will now vote on the basis that I have outlined—for the recommendation made by the Leader of the House.

Lord Campbell of Alloway: My Lords, I support much, but not all, of what the noble Lord has just said. I agree that this amendment brings into relief the question of management. Management here is dependent on the relationship between prison governors, the prisoners and the POA. I will not go into the details, but that is the effect of legislation passed long ago and interpreted by the High Court. It has broken the

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manner in which those considerations can advance, and it is because of that that we find ourselves having to devise working rules of crucial importance by way of amendments instead of by the ordinary process of negotiation. But we are here, and certainly that requires attention.

We are now presented with a situation which has to be dealt with. The Government say, “Oh, give it to a Minister”. We have had enough government by Ministers. This is a matter for Parliament, and I shall support the noble Lord.

Lord Dear: My Lords, I have spoken before on this issue, always in support of my noble friend Lord Ramsbotham, and I support him again in Motion A1. Like him and others, I am acutely aware of the constitutional importance and significance of the game of ping-pong that we play, and the ramifications of what might happen if we return this Bill to another place once again.

Not to have this clause in the Bill would indicate a lack of care and concern for those who are in a place where they are almost more vulnerable than in any other place within our constitution, and in a place where duty of care is absolutely paramount. As I have asked before, and ask again, what message would be sent within this country, within the organisation and outside, and within our borders if we do not include this matter? In particular, what message would it send to those countries which we seek to influence at a particularly sensitive time in the world’s history when we are trying to demonstrate that the western democracies of this world have more to offer than they do? I wonder how they would see this exclusion.

As a young student reading law at university, and later as a young police officer beginning to grapple with the requirements of that job, it was emphasised to me that arrest and detention of a citizen is absolutely fundamental within the constitutional framework. We are talking about people detained in prisons and in police cells, although more are detained in prisons. I have said before and say again in preamble that a prime test in any civilised country is how you deal with those who are locked up by the state. We should keep that at the forefront of our minds. We know that it is rare in this country for things to go wrong, but things can and do go wrong, and when they do one must ask what recourse those people or their relatives have.

We believe that police objections have borne on the Home Office’s decision. From memory, I think that was mentioned about three months ago during our debate. The Association of Chief Police Officers provided me with a letter which it sent to the Home Office. It is undated but I understand that it was sent very shortly before 11 May this year on behalf of ACPO. It is a short letter. If you take away the heading and the spare space on the back of the second page, it would come to exactly—I have measured it—one side of close-typed A4. That is the weight and the length of the police response on this matter. It pains me to say that it is a poorly constructed letter. It is more a statement of position than anything else. It comprises seven paragraphs, four of which state the obvious. I refer to statements such as one that says that the police have to,

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It goes on to say that they have to take,

We know that. The letter states that they are responsible for,


It goes on to say:

I suspect that we would quarrel with none of that. The letter concludes with the rather strange three lines:

Only one paragraph in this very short letter could reasonably be called an argument and that, as I said, is more a statement of a position. The police case appears to be that they are trying to distinguish their position vis- -vis custody from the position vis- -vis operational policing. Noble Lords may remember that, under Clauses 4 and 5, operational policing and indeed operations by the Armed Forces, which are very similar in some respects, are specifically excluded from the Bill. I spoke in support of that, as did other noble Lords, and it is not now a matter of dispute or debate. However, the police are concerned about the point at which operational policing ends and custody begins. That is what appears to be inserted in one short paragraph of the letter. My own guess—not tritely—is that custody could begin when the cell door shuts or slightly before, when the charge is accepted. I would be happy to leave that to judicial decision. Your Lordships might wish to insert such a description into the Bill, even at a late stage, but I do not think it needs to go in.

On reflection and after a long history with the Home Office, I am confused—others may well be too—how on so many times the Home Office has rejected well argued, heavily argued and lengthily argued submissions by the police on a range of issues, but it is prepared to stand its ground on this one, which I have already sadly described as a poorly argued paper. I can understand where the police are coming from. They must have fears on that division between operational and custody. I understand the position, but I regret that I do not support the ACPO line. I support everything that has been said—although I will not repeat it—by the noble Lord, Lord Ramsbotham, most of which applies to prisons, but some of which can also apply to those in police cells. I urge your Lordships’ support for the Motion.

Lord Rosser: My Lords, I have spoken previously on the issue, when I declared my interests, as set out in the register. I am conscious that the noble Lord, Lord Ramsbotham, commented that when the matter was last discussed in the other place no one, in effect, stood up or spoke against his amendment. I certainly wish to speak against his amendment.

We need to be sure that the application of the Bill does not have the opposite effect to what many appear to have assumed. The assumption for the Prison Service

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appears to be that it will reduce deaths in custody. There is no hard evidence that this would be the result. It would be easier for the Prison Service to avoid corporate manslaughter charges being laid for gross negligence where the death is self-inflicted—by a prisoner in a cell on their own, but being regularly checked. It only takes a few minutes for someone to take their own life. With a death in a shared cell, the Prison Service might find it more difficult to resist charges being laid—even where the decision not to leave a recently arrived prisoner in a cell on their own was taken for the best of motives, such as being of help to the prisoner concerned in the light of their state when they arrived at the prison. It is thus possible—possible, not certain—that we would put the Prison Service in a position where it decides to play safe from its point of view, but minimising the risk of corporate manslaughter charges could increase, not decrease, the number of self-inflicted deaths.

The desire to hold those who are grossly negligent to account for a death is understandable and right. However, I suggest that we do not start fixing dates until we have evidence—which we do not have at the moment—that the consequence of so doing in the Prison Service will not be to change the operational culture in such a way that it increases, not decreases, the number of self-inflicted deaths.

Viscount Bledisloe: My Lords, I would like to ask the noble Baroness the Leader of the House two questions. First, if she accepts that it is perfectly open to her to table a Motion to extend the carryover date, would she stop waving around the paper tiger of the Bill lapsing, when it is entirely in her hands to prevent it doing so? Secondly, does she accept that, if no date is inserted, it is perfectly open to the Government never to bring forward an order putting into effect the clause relating to manslaughter and custody? Even if the Government bring forward some form of order, they could do so containing any form of exceptions, restrictions or limitations that they like that rendered the duty virtually irrelevant. The House would have no choice but to either reject the order in its entirety or pass it with all those exclusions and limitations. If she accepts that, does she not accept that it is necessary for her, the noble Lord, Lord Ramsbotham, and others to get together and devise something—if she does not like the amendment—that means that, within a reasonable time, the Government must bring this clause into effect, subject only to any genuine restrictions that they really need to impose?

3.45 pm

Lord Elton: My Lords, I hope that your Lordships will forgive a very brief intervention. I have not taken part before because of other priorities. However, as a former Minister for police for a year, I have always thought that the police were properly responsible for the lives of any prisoners that they had in their custody. As Minister for the Prison Service for three years, it was clear to me that the Prison Service was responsible for the lives of the people who were entirely in its control. As an ex-Minister in a number of other departments, I am equally aware that if you do not put a date in a Bill you do not get it. The

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Government are always subject to the inertia imposed by the necessity to do other things on which there is a date, and the result is that those things on which there is not a date get put to the back of the queue indefinitely until the next election.

The noble Baroness the Leader of the House shakes her head sadly at me. I can only say that I was in the job—I cannot interpret her mood, she is now wreathed in smiles. I hope that bodes well. If this House were to be content with something that could be interpreted worldwide as saying that the actual rights to life of our citizens are at their least when they are in the care of the state, it would say something about the state too horrible to contemplate.

Baroness Masham of Ilton: My Lords, I will ask the noble Baroness the Leader of the House a short question. Has there not been a rise in suicides this year of people in custody? Surely something must be done about that. I think I read it in the press this week.

Lord Elystan-Morgan: My Lords, for a very few years in the late 1960s, I, too, had the pleasure of being a junior Minister in the Home Office, and I wholeheartedly endorse the remarks of the noble Lord, Lord Elton. I have not taken part in the earlier discussions on the Bill, having been absent for unavoidable reasons. With great respect, I do not think that this is in any way a choice between one set of alternatives and another set of statutory alternatives, one being superior to the other.

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