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Corporate Manslaughter and Corporate Homicide Bill

moved Amendment No. 3: 3: Clause 2 , page 2, line 34, at end insert— ““(d) a duty owed to anyone held in custody.”” The noble Lord said: My Lords, the purpose of the amendment is very simple; it is to rectify a glaring deficiency in what otherwise has been a generally welcome Bill, by including, "““a duty owed to anyone held in custody””." I do not intend to repeat all that was said on Second Reading or in Grand Committee. I rest my case on the stark difference that there is between the rule of law and the provisions of the Bill as they stand on the one hand, and on the other hand the two sets of perverse reasoning put forward by the Government on why neither the rule of law nor the provisions of their own Bill should be applicable to those responsible for the duty owed to anyone in custody. I am not a lawyer; but two elements of the rule of law seem to me to apply here. First, there is equality before the law, which means that every official, from the Prime Minister down to a constable or a prison officer, is under the same responsibility for every act done without legal justification. Secondly, there is equal protection under the law. The protection that you receive from the criminal law should not depend on whose carelessness puts your life at risk—a public body or a private company—or what they were doing at the time. Also, there is the provision of Article 2 in Section 1 of the European Convention on Human Rights, which states that everyone’s life should be protected by law. Before Committee, the noble Baroness, Lady Scotland, who sadly is still not with us, in briefing a number of us said that the Government had been very brave and courageous in breaching Crown immunity in this Bill. Anyone reading it for the first time could be forgiven for presuming that this breach applied to the duty of custody, because the Home Office, and therefore its constituent parts, is included in the government departments listed in Schedule 1.Clause 1(1) states: "““An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised … causes a person’s death, and … amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased””." Subsection (3) expands on that, saying: "““An organisation is guilty of an offence … only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to””." Paragraph 47 of the regulatory impact assessment states: "““The new offence will also apply to a range of government departments and other Crown bodies ... However, the Government recognises the importance of such bodies being clearly accountable for senior management failures that lead to death. The Bill therefore applies the offence to the Crown, and sets out a mechanism for bringing prosecutions against Crown bodies””." Paragraph 51 of the RIA states that, "““the offence creates no new regulatory requirements, being based on the common law duty of care, and is closely linked to health and safety duties with which Crown bodies must already comply””." Taken at face value, it seems to me that my amendments are entirely in line with the purpose and content of the Bill, which, as the Government have stated, applies to failures of management and the duty of care when it is owed by government departments and other Crown bodies, both of which are subject to the rule of law that applies to everyone in the country without exception. However, it would appear that that is not to be. In her briefing, the Minister said that the Government’s bravery and courage did not extend to the inclusion of custody, which was a step too far for government, for reasons that were spelt out in the debates in another place, the Explanatory Notes and the words of the noble and learned Lord the Advocate-General for Scotland and the noble Lord, Lord Bassam, at Second Reading and in Grand Committee. But neither of those reasons seems to stand up to scrutiny. In Committee, the noble Lord, Lord Bassam, said that the offence of corporate manslaughter, "““should not apply to deaths in custody because the unique set of factors contributing to the safe running of prisons involves too many matters of core government decision-making and public interest to render them appropriate for judicial, as opposed to parliamentary, scrutiny. There are already established mechanisms for investigating the causes of deaths in custody … prisons must act within the constraints of the resources available and balance the needs of all prisoners in making … decisions. The Bill … is about the management of health and safety””.—[Official Report, 15/1/07; cols. GC 196-98.]" But my amendments, then and now, are nothing to do with either core government decision-making or resources. They are entirely to do with the clauses of the Bill that I have already quoted; namely, the performance of management and the duty of care. We live in a pretty curious world where public sector management has to be good or where the owed duty of care applied is subject to core government decision-making based on resource constraints. Responding to that reasoning, the noble and learned Lord, Lord Lyell of Markyate, said in Grand Committee that the Minister, "““has confused or obfuscated the position. It was not a decision of public policy that there should be an incompetent system in Feltham””—" leading to the death of one Zahid Mubarek— "““or that senior officials … should run a young offender institution in a way that put young offenders at risk of their lives. That is not a matter of public policy, but a matter of bad management and of bad supervision by the Home Office ... The Minister has evaded the real issue that is causing concern to the Committee””.—[Official Report, 15/1/07; cols. GC 199-200.]" The other reasons put forward are that deaths in custody are already subject to public inquiry, inquests, internal inquiries and those conducted by the Prisons and Probation Ombudsman, but those do not stand up to detailed scrutiny either. In view of their track record on this matter, I am surprised that the Government dare to mention public inquiries in their support, because throughout their life successive Home Secretaries and senior officials, such as directors-general of the Prison Service, have resolutely and consistently opposed every application for a public inquiry into a death in custody. The only inquiry that has taken place, into the murder of Zahid Mubarek at Feltham in 2000, followed the determination of the family over four years, despite many rebuffs, and finally the direction of this House. The Government make frequent reference to their wish to rebalance the criminal justice system—whatever that means—in favour of the victim. To whom do the Government owe more responsibility and explanation than a victim who has lost a loved one who was in their care? I have always taken the line that someone with nothing to hide has nothing to fear from disclosure and everything to gain from having events such as deaths in custody opened up to public scrutiny. Therefore, one can conclude only that someone who opposes a public inquiry does so because he has something to hide. When that person is the Home Secretary, who is responsible for the safety and well-being of all those in his custody and care, one is entitled to wonder at his motivation. That is why I am concerned at his reported attitude to this Bill: that he will pull it if this House decides to vote for my amendment. I was going to quote at length, but I shall not do so in every detail. Last week’s issue of the newspaper Inside Time—the national monthly newspaper for prisoners—contains an article by Mr Peter Quinn, a former prison governor and co-author of an official report to identify those members of staff at Wormwood Scrubs prison who are responsible for assaulting prisoners and to determine whether disciplinary action can be taken against any of them. He writes: "““We could not recommend this, since the Prison Service's own rules require such action to be taken as soon as possible after the misbehaviour comes to light. On each occasion this had been many years previously. By the time of the review some40 potential witnesses had resigned, retired, emigrated or died. Some were in prison as a result of assaults””." So to suggest that these things should follow years after an event does not seem to be very sensible.Mr Quinn also said: "““It was also evident that there were staff who were totally opposed to the corrupt elements of the regime, but that they were vulnerable to vilification by colleagues and experienced lack of support from their superiors. We were invited to make further recommendations and this is why we proposed a public or official inquiry, under a person of standing, to discover how parts of the prison had degenerated into the sadistic mess it became””." That is not a disgruntled prisoner or a penal reformer speaking but a former prison governor talking about his own service. The Government claim that internal inquiries, such as he was commenting on, that never see the light of day or never result in any disciplinary action in cases where both failure of management or duty of care are proven justify exclusion from the Bill. The third justification—inquest—does not apply either because inquests only go into the causes of death. It should not be necessary in a civilised society for decency and humanity to have to be imposed by threat, but I venture to suggest that had there been a risk that a charge of corporate manslaughter would have been brought against them, managers at all levels would have taken a great deal more care over the detailed exercise of their responsibilities in the cases of Christopher Edwards, Zahid Mubarek, Sarah Campbell, Joseph Scholes, Paul Day, Gareth Myatt and, I dare say, many others who might still be alive if that care had been properly exercised. Two distinguished members of the Labour Party in another place, Mr Andrew Dismore, chairman of the Joint Committee on Human Rights, and Mr John Denham, chairman of the Home Affairs Select Committee, have expressed their dissatisfaction that the Government have not cancelled their desire to exclude deaths in custody from the Bill and, separately, have expressed the hope that this House will vote against that exclusion. Nothing I have seen or heard from the Government so far has convinced me that there is any justification in the exclusion. I look forward to hearing whether Ministers have anything further to offer than the unconvincing reasoning put forward so far. This House has both a duty and an opportunity to prevent something which would not make me proud were I part of it. The Prison Service’s statement of purpose says that it has a duty to treat those committed to its care with humanity. I hope that, in agreeing with these amendments, the House will uphold that purpose and the rule of law, demonstrating that we deserve to be called a civilised nation. I beg to move.