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In the debate on the Corporate Manslaughter and Corporate Homicide Bill and the matter of deaths in custody, the noble Baroness, Lady Ashton, made a commitment, and agreed that the offence of corporate manslaughter,
and before that was to be done the Government would find an opportunity to put the ombudsman on a statutory footing, which would,
- “strengthen the investigation of deaths in custody in three ways. First, there will be a formal duty on the ombudsman to examine all deaths within his remit”.—[Official Report, 22/5/07; col. 575.]
She said that he would be empowered to decide the scope of investigations and procedures, and that investigations and recommendations would be expected to cover management and wider policies where he deemed it appropriate. Secondly, the noble Baroness promised that there would be new High Court powers to obtain evidence as well as a clear foundation for working with other ombudsmen where appropriate. Thirdly, she indicated that the statutory basis would strengthen the ombudsman’s independence from government.
The noble Baroness went on to say that the Government’s intention was to,
- “find a suitable Bill in this Session or, if necessary, the next”.—[Official Report, 22/5/07; col. 576.]
Since we are now in the next, I hope that the Minister can assure us that he has a real sense of urgency about this proposal.
The Earl of Onslow: I rise in—despair is not exactly the word I am looking for, but it is not a million miles away from it. An enormous chunk of this Bill has now been taken out, which had it been properly thought through in the beginning would not have to be taken out. Those of us on the Joint Committee on Human Rights see an enormous chunk of this Bill as being in urgent need of amendment, parts of which were not discussed in the House of Commons. Is this really how legislation should be presented to Parliament? It seems to fit exactly into the words of the general confession:
I note that the Bishops are listening—
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Lord Henley: I shall assist my noble friend, if I may, by assuring him that it is even more complicated than that. Of the 50 or so clauses that have been taken out, 25 were there at the beginning and 25 were among those brought in on Report in another place that were not discussed, and which are now being removed in this House without further discussion.
The Earl of Onslow: Perhaps despair is the right word.
The Lord Bishop of Chelmsford: I remind the House that Ash Wednesday is tomorrow if noble Lords wish to pursue the general confession.
I underline the sense of urgency on this matter and the importance of the statutory independent basis of this. The Minister will be aware that Bishops have rights of entry into prisons and often have close relations with their local prisons. In our part of the country we have been in the local press with regard to deaths in custody recently, and some important aspects of this issue need to be tackled, not least the fact that those who succeed in taking their own lives in prison are but the tip of the iceberg of the attempts made to do so. I am concerned about the morale of staff in prisons in relation to these matters. That is why the statutory basis should be independent. There needs to be clarity of structure and a proper sense of accountability, so that those who are managing our prisons in their present state of crisis have a sense that they are getting proper public support.
Lord Kingsland: I think that all your Lordships are agreed that a statutory basis for this post is crucial; but it has to be the right statutory basis. When Lord Gardiner, the then Lord Chancellor, spoke in 1967 to your Lordships’ House about the establishment of the Parliamentary Ombudsman, he stressed two matters. The first was the ability of the new post to enhance Parliament's capacity to scrutinise the Executive. The second was its capacity to secure remedies for citizens treated unjustly by a public body. More recently, the Council of Europe has emphasised the importance of ombudsmen to the promotion of the rule of law and the protection of human rights.
Crucial to those objectives is the independence of the office of ombudsman. The problem is that under the Bill’s provisions, which the Minister now seeks to withdraw, the office is not independent. That is exacerbated by the fact that the citizens over whom the ombudsman will have jurisdiction are incarcerated by the state.
There are a number of reasons why the position is not independent. The funding of this new office is to be determined by the Secretary of State, not by a levy on those investigated or by money supplied directly by Parliament. Indeed, the staffing arrangements are subject to the discretion of the Secretary of State. The office holder is to be accountable to the Secretary of State, not directly accountable to Parliament. The office holder will be under a duty to investigate any matter which is the subject of a request by the Secretary of State, who will be able to direct him as to the scope of that task. The annual report is not even being sent
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I am sure that the Minister will have received, as I have, a letter from Mr Brian Coulter, the Prisoner Ombudsman for Northern Ireland. Along with the measures for England and Wales, an additional part deals with Northern Ireland. I shall be most interested to hear from the Minister what he thinks the position will be there. The defects of the position for Northern Ireland are exactly the same as those for England and Wales, but there is an added complication for Northern Ireland, which is the issue of devolution. At some stage, the powers and the office with it will be devolved and consideration will have to be given in Northern Ireland to what kind of arrangements they want there. What can the Minister tell us about that? What forecasts about the timing, context and nature of the devolved arrangements has the Minister made in drafting that part? We are all agreed that it should be statutory, but that is only the beginning.
Lord Hunt of Kings Heath: I thank Members of the Committee and reiterate that I will take very careful account of them in taking this work forward. I am afraid that it is sackcloth and ashes. On scrutiny, I acknowledge that new clauses were added in the Commons; I have no doubt that your Lordships will want to give them particular attention when we come to debate them in due course.
Whatever comments have been made about the current processes and rules under which the ombudsman works, on behalf of the Government, I place on record my admiration for the work of the current ombudsman, who I believe has done an excellent job. As noble Lords said, the Government are as committed as ever to putting this on a statutory basis. I want to make it absolutely clear that we are committed to establishing this office by statute. The question then arises of when we will be able to do so. I cannot give a definite date. However, we regard this as an urgent piece of business to be undertaken. We expect the review outcome to be produced later in the year and then to have an early opportunity to introduce fresh legislation. I cannot go any further than that today.
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There have been questions about independence, the Secretary of State’s ability to ask the ombudsman to take on certain functions, and about direct accountability to Parliament. I have listened. We thought that we had got it right in the Bill. It is clear that many comments have been received, and we will consider those very carefully. The noble Baroness, Lady Stern, was right to mention the Corporate Manslaughter and Corporate Homicide Act 2007. I reassure her that we are committed to statutory provision.
The Earl of Onslow: I am sorry to interrupt the Minister. There is one thing that I did not say. It is refreshing when Ministers actually listen to Parliament,
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Lord Hunt of Kings Heath: There is always a “but”. But since it is very rare for the noble Earl to commend the Government, I will take that as a half-commendation at least. Something will come of it. I reiterate that we believe it should be put on a statutory basis. We want to get it right and we are determined to do so.
On Northern Ireland, I cannot give the noble Lord a definitive answer. We are considering how best to take this forward in the context of devolution. Our thinking currently is to continue work on it which, if appropriate, could then be transferred to the devolved department of justice. That seems the best way of doing it, in addition to consulting the relevant interests in Northern Ireland. It is a matter that my officials have considered. They are pondering how best to take it forward to most effect. The Northern Ireland ombudsman’s comments were one of the influences in making the decision and played an important role in our asking the House to withdraw the relevant clauses.
As for the proposed title, I know that the noble Lord, Lord Ramsbotham, has never liked it, and we will take note of that. “Commissioner” is a very honourable title. Although we all talk about the Parliamentary Ombudsman, in statute the title of that post holder is “commissioner”. The same applies to the Health Service Commissioner and a number of other ombudsmen. Although I understand what the noble Lord says about management of offending, that is perhaps—to take us back to the Oral Question earlier today—part of the integrated approach that we wish to see. However, regardless of whether it is in statute or is only generally recognised, we want a title in which people will have confidence. I will take that point away too.
I think that I have answered most of the points.
Lord Lloyd of Berwick:Has the Minister taken on board—I am sure that he has—the overriding importance of ensuring the independence of the ombudsman, commissioner or whatever one calls him?
Lord Hunt of Kings Heath: That is not in doubt; the question is how that would be best expressed in statute and operations. We considered that the provisions in the Bill would have assured that independence. However, we have received some comments suggesting that that is not the case. That is why we will reconsider. If the public, prisoners, their relatives and prison officers are to have confidence in the ombudsman, they must have confidence in that person’s independence.
Lord Trimble: Further to the point about the independence of the ombudsman/commissioner, it follows from what the Minister was saying that if devolution were to occur in May, as the Government hope, they would then transfer responsibility for this to the Administration in Northern Ireland. If that happens, what steps will the Government take to ensure that any commissioner subsequently created in Northern
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Lord Hunt of Kings Heath: I am going to duck that, to a certain extent. As I said, we are still considering the matter. It seems best, given that we are only in the early part of February, to continue the work. The other option is to put Northern Ireland to one side and await events. If we carry on with this work, the necessary discussions between ourselves and Northern Ireland can then take place to ensure that we produce something effective. However, I take the noble Lord’s point and will ensure that it is considered.
Lord Henley: If the Minister is going to duck that, why on earth did the Government introduce the Northern Ireland provisions in another place? They were part of the vast number of clauses that were introduced but not discussed in another place. The noble Lord is now removing them but also says that he wants to duck the issue.
Lord Hunt of Kings Heath: I said that I wanted to duck giving a precise answer because we have not reached a conclusion. There is complete consistency in what I have said. Given that we wish to seek the House’s approval for withdrawing those clauses from the Bill, it makes sense to take forward detailed work in the light of developments in Northern Ireland. That is all.
Lord Henley: I fully accept that and I fully accept that the noble Lord is in what he describes as sackcloth and ashes mode, which is very appropriate for Shrove Tuesday. I am simply saying that introducing all these provisions in another place, not discussing them there and then withdrawing them here seems a very funny way in which to legislate.
Lord Hunt of Kings Heath: The noble Lord will have his fun. I have explained why we are seeking the Committee’s approval for withdrawing these clauses. I think that this debate has been very helpful in identifying those matters which we need to consider further, including Northern Ireland. On that basis, I hope that we might be able to proceed.
Baroness Linklater of Butterstone: The Minister could do no better than look north of the border to Scotland, where there is a perfectly good model of an independent inspector of prisons.
Lord Hunt of Kings Heath: I agree that we should look at the experience of ombudsmen in other areas and we will do so.
Baroness Stern moved Amendment No. 1:
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(1) Section 37 of the Crime and Disorder Act 1998 (c. 37) (aim of the youth justice system) is amended as follows.
“(A1) The youth justice system shall ensure that it carries out its functions in accordance with the following principles—
The noble Baroness said: The amendment arises from a concern that in the part of the Bill dealing with youth justice we shall find ourselves dealing with technicalities and will not have an opportunity to ask the Government some basic questions which will help us later on. For example, where do these proposed changes fit in? What is their contribution to the Government’s vision of the system? Indeed, what is the Government’s vision of the system? How is it evolving as the joint unit between the Ministry of Justice and the Department for Children, Schools and Families develops?
This amendment sets out a statement of principles to go at the beginning of the Bill, which would make it clear to all those working in the system what they were supposed to be doing, and how the Government propose to hold them accountable for compliance with the UN Convention on the Rights of the Child, to which the Government are a signatory and which Ministers have, therefore, committed themselves to upholding. I am very grateful to the Standing Committee on Youth Justice for the excellent work that it has done on the Bill and for its support for noble Lords in preparing background material.
For various reasons, we have seen in the past few years a drift away from the basic principles that should govern a youth justice system and that are the reason why we have a distinctive system which is not the same as the system for adults. Children are not adults; they are still developing and still very vulnerable. It is undeniable that our youth justice system has gradually moved in a direction that takes it a very long way from the mainstream of systems in comparable countries. I hope that recent developments, such as the involvement of the Department for Children, Schools and Families, will start a countervailing movement back to the norm.
We have indeed gone a very long way from what is seen as normal in most countries. Our age of criminal responsibility is extraordinarily low. At a meeting chaired by the noble Baroness, Lady Massey, in this House on 24 January, we heard that in Denmark, Germany and Spain, the age of criminal responsibility is 15, 14 and 14, respectively. I must declare an interest as that meeting was arranged by the International Centre for Prison Studies at King’s College, where I have a position.
The consequence of the practice elsewhere is that, for all children under those ages in those countries, the measures taken are covered not by criminal jurisdiction
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We in England and Wales are also remarkably out of line in using custody for children, and particularly in using it as punitive custody rather than as custody for care and protection. We were all saddened last year to read the inquest verdicts on two boys who died in custody, one aged 14 and one aged 15. We know that in most similar jurisdictions they would not have been in a place of punitive custody, if they had been locked up at all. They would have been in a place akin to local authority secure accommodation that is part of the system of caring for children and they would not have died. We are out of line in using the criminal process to deal with myriad types of behaviour that are quite common among children and young people, behaviour which they grow out of or which can be dealt with more effectively in other ways. We are way out of line with other jurisdictions.
We are also way out of line with our international human rights obligations. The basis of these obligations, and particularly of the UN Convention on the Rights of the Child, is that children should be protected from harm and given the chance to grow up into healthy adults who contribute to society. The Minister will be aware that last April the Committee on the Rights of the Child issued a general comment—a form of detailed guidance setting out what is expected of countries that have ratified the convention in their juvenile justice systems. The committee sets out its view that,
- “a minimum age of criminal responsibility below the age of 12 years is considered ... not to be internationally acceptable”.
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The committee also sets out part of what it means to make the best interests of the child the guiding principle. It says:
“The protection of the best interests of the child means, for instance, that the traditional objectives of criminal justice (repression/retribution) must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety”.
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