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Corporate Manslaughter and Corporate Homicide Bill

rose to move, 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. The noble Baroness said: My Lords, we are now called upon to consider the Corporate Manslaughter and Corporate Homicide Bill for a third time and amendments to extend the new offence to deaths in custody in all circumstances. I again express my gratitude to noble Lords who have taken the time and care to spend some time with me to discuss the issues that remain of concern in your Lordships’ House. I am extremely grateful to all those who have done so and I hope that they will agree that I have reflected on their concerns with great care. The other place has sent to us again an amendment tabled by the Government that proposes instead a power to extend the new offence to deaths in custody in due course. The difference between the two proposals represents the nub of the issue for this House: whether the Bill should be amended now, at this stage, or whether this is an issue for the future. The Government have come a considerable distance on the issue. The draft Bill and the consultation paper in 2005, as noble Lords who have been involved in the Bill from the beginning will be aware, proposed taking the significant step of applying the new offence to Crown bodies. But, in doing so, they pointed out that this step raised questions about the circumstances in which public authorities should be held to account under the criminal law for decisions of public policy or matters that are uniquely the responsibility of the state, such as holding prisoners in custody. We have also rehearsed and discussed the other forms of accountability for functions of this kind. These recognise the special responsibility of the state in these cases but also the need to treat them in a manner suiting their importance, their sensitivity and their connection with public policy—hence the role of Parliament, other public forums and specific independent investigatory bodies. The draft Bill made it clear that those were matters where the offence should not apply. That is a position that the other place has supported, and so has this House, with the exception of custody. The Bill accordingly exempts death connected with the exercise of a number of public responsibilities. The Government believed, and believe, that it is appropriate for the management of prisoners in custody also to fall on that side of the line. We have sought to find a positive way through in direct response to the concerns that others have raised about deaths in custody. That is included in the Bill, explicitly opening the door for the offence to apply to such deaths. From a position of considering that such matters should be entirely excluded from the new offence, that represents considerable movement on our part, but we are not persuaded at this stage that we can go further. Applying the new offence to government departments, as I have indicated, is a bold step, and it brings with it considerable uncertainties. By their very nature, these are bodies with considerable public responsibilities, involving difficult decisions about how to secure the public interest in challenging environments and with public funds. It is right that from the outset the new offence ought to apply to crime bodies in their role as employer and occupier, as it applies to any other large corporate body. However, the organisation and management of activities with which the offence is concerned become much more closely bound up with questions of public policy when it comes to statutory and other public responsibilities. 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. 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 insubsection (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.)