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Corporate Manslaughter and Corporate Homicide Bill

My Lords, I do not know of a case that would point to the conclusion made by the Joint Committee. I fully accept that the argument is there to be made. However, my real concern is with the interaction between public policy and the duties of public authorities. I illustrate my concern by reference to a Scottish case, the case of Napier against Scottish Ministers. It dealt with slopping-out in Scottish prisons. In Scotland, we were somewhat behind England and Wales in providing sanitary facilities in cells. That resulted in prisoners being doubled up in cells with no sanitary facilities and, in effect, during times of lock-up, being forced either to ring for release from the cell or, more often, to urinate or defecate in front of their cellmate. The matter was raised by Mr Napier against Scottish Ministers based on alleged breaches of Articles 3 and 8 of the European Convention on Human Rights but also based on the common law of negligence—delict in Scotland, tort in England. In the course of that case in the Court of Session, the issue of £13 million, which it was said had been taken from the Prison Service budget, was raised. I should say that Mr Napier had been incarcerated in C Hall in Barlinnie in 2001. I do not think that he was a stranger to that establishment. In any event, in paragraph 88 of its opinion, the court stated: "““Two particular facts demonstrate that the respondents could easily have installed integral sanitation in the cells in C Hall before 2001. The first of these was the decision of the respondents, made in December 1999, to claw £13 million back from the Scottish Prison Service budget. There was a well-established practice in Government of allowing departments to carry budget surpluses forward into subsequent years. These surpluses might build up over a number of years. The discretion always existed for these funds to be redirected to other areas within the responsibilities of that Ministry, or indeed for them to be redirected to other Ministries. The Minister of Justice later explained””—" I think that this was in an affidavit— "““what had happened in relation to the £13 million in these terms: ‘That £13 million has been spent on other priorities in the Justice Department, such as a drug enforcement agency, tackling domestic violence, and establishing a witness support scheme for all of Scotland's sheriff courts. These are proper priorities. Government is about making choices; those other choices that we have made.’ The decision was made not to use those available funds to solve the slopping out problem””." It is true that £13 million was taken from the end-of-year flexibility of the Prison Service. The decision was taken by the then Minister for Justice, Jim Wallace. To be fair to him, he would say that he was not aware that the likely consequence would be a slowing-up of the refurbishment programme. I should also say that Mr Wallace is a decent, humane individual who feels strongly about conditions in prisons. He also feels strongly about drugs and the misery that they cause, domestic violence and the support that is given to witnesses. However, before we decide where we are going to apportion legal blame, where do we in the court of public opinion assign blame for what happened? We could blame the Minister, or we could blame the party—my own party, the Labour Party—that proposed a drugs enforcement agency. We could blame the electorate for having voted for it, or we could say simply that these were proper priorities that were being set by government. The point is that the decisions were being taken in the context of public resources and their assignment. Much was made in Grand Committee of the report on Zahid Mubarek. Although I had heard about him, I had not looked at the report. I went away and did so. I cannot claim to have read it all, or to be familiar with all its terms, but a couple of things struck me as I went through it. The first was that the Prison Service has co-operated very fully with the inquiry and was praised for doing so. In passing, I wonder whether it would have done so had it been facing prosecution, but there we go. Paragraph 40.11 of the report relates to Mr Clifford, the governor who came in in, I believe, March or April 1999, and says that, "““it would be wrong to judge Mr Clifford’s tenure at Feltham simply by results. The core problems – too few staff, too many prisoners, too little investment and a supposedly militant local branch of the POA – were problems which he inherited, and could not be changed overnight. So too was the forthcoming diversion of resources for the successful separation of Feltham A and Feltham B.””." In the report’s final conclusion, Mr Justice Keith said: "““There are many lessons to be learned from Feltham’s decline, but the most important is that population pressures and understaffing can combine to undermine the decency agenda and compromise the Prison Service’s ability to run prisons efficiently. ""When that happens, it is important for the Prison Service to tell ministers that, and they should listen very carefully to what the Prison Service has to say. The Prison Service will no doubt continue to strive to do the best it can with the resources it has. But if those resources are simply not enough, and the prison population continues to increase, ministers must find the extra money to enable the Prison Service to deliver a proper regime for the prisoners it is required to hold. If more resources are needed to ensure that our prisons are truly representative of the civilised society which we aspire to be, nothing less will do””." I listened with great care to what the noble Lord, Lord Ramsbotham, said about this being not about resources but all about management. On the basisof the above remarks, I simply cannot agree. The management of Feltham, and indeed of other institutions, is always made in the context of public obligations and the resources that are available. I would have a lot more sympathy with these amendments if, as a corollary to them, the Prison Service was entitled to charge the state a realistic price for keeping prisoners in custody, if it were to have a free hand to determine the level of security in which it kept individuals and could refuse to take a prisoner or a particular type of prisoner. That would put it on the same footing as the private sector, which is controlled by costs, while the public sector is controlled by a host of other factors including resources, investment, and the statutory and common law obligations that are imposed on the Prison Service and others. In considering these amendments, we also have to look to ourselves. The prison population in England and Wales, and in Scotland, is far too high. We do not have the number of places to accommodate all prisoners in the kind of conditions in which we, in a decent society, would like to see them. We have to look to the number of laws that we pass and the kind of custodial sentences passed by the courts and to consider the amendments in that context. However, it is simply unfair, in my respectful submission, to pass the buck to a management that does not have the resources, the investment and everything else that is required. The great distinction between the sectors is that while the only control in the private sector is one of cost, in the public sector, there are other obligations.