Corporate Manslaughter and Corporate Homicide Bill

moved Amendment No. 26: 26: Clause 2, page 2, line 29, at end insert— ““(d) a duty owed to anyone held in custody”” The noble Lord said: This group of amendments addresses the issue of deaths in custody caused by gross negligence. In the midst of the other very serious points that we will consider during this Committee, this is without doubt one of the most important. The amendments would ensure that, where an individual died in custody as a result of a gross breach of a duty of care, that individual’s family or loved ones would be entitled to bring a case of corporate manslaughter against the responsible organisation. We have already heard some powerful arguments in this Committee for the simple and noble principle of even-handedness in the application of this legislation. That is a fundamental and important principle, but there is much more to these amendments than that. The power lawfully to deprive an individual of his or her liberty must be one of the most serious responsibilities there can be. The duty of care owed to an individual in detention, where he cannot act freely in his own interests, is onerous and profound, yet the way in which the Bill is currently ordered suggests that that responsibility is not so regarded by the Government. We must not forget that the term ““custody”” does not refer only to people who are in forced detention; it also refers to individuals who have wilfully submitted to custody—for example, in order to receive rehabilitation. In that context, it is appropriate that the Mental Health Bill is being discussed in the Chamber, as I want to refer to the Mental Health Act 1983. In its third report on deaths in custody, the Joint Committee on Human Rights stated at point 48 that the prison population is susceptible to suicide through high rates of mental disorder, younger age and lower socio-economic status. Suicide accounts for a great number of deaths in prison, and it is right that it should come under scrutiny. It is worth noting that Section 127 of the Mental Health Act 1983 makes it a criminal offence to, "““ill-treat or wilfully to neglect””," a patient receiving treatment for a mental disorder. I should like the Minister to say whether that provision applies to prison hospitals as well. Of course, the parallel with those held in prison or police custody is obvious. Perhaps I may briefly describe how I expect the package of amendments to work. Amendment No. 26 would extend the duty of care to ““anyone held in custody”” within the definition of ““relevant duty of care”” in Clause 2(1)(c). Amendment No. 31 would provide a definition of ““custody”” for the purposes of interpretation. It includes the lawful detention of any individual within secure mental healthcare facilities, secure children’s homes, secure training centres, immigration removal centres, court cells and police cells, and while under the supervision of court and prisoner and detainee escort services. There may be some scope for extending that list at a later stage to include all rehabilitation care centres and hospitals, where individuals are not detained against their will but willingly submit themselves to the care of such an institution. Amendment No. 55 would tie in the extension of the duty of care in Clause 2 with the definition of policing or law enforcement activities in Clause 5(4). At this juncture, we must ask ourselves why the Government have so far refused to extend the application of the offence—in effect, refused to expose a significant and very critical part of their own responsibilities to the same level of scrutiny as they seek to apply to the private sector. There appear to be three reasons. First, there is the excuse that the current levels of accountability through public inquiry and the electoral process are adequate methods for exposing failings in the system and helping it to improve. On that point, I return to the Minister’s laudable praise of this Bill; he said that it is intended to act as a deterrent that will entrench and improve a culture of safety and go some way towards preventing avoidable death. As I understand it, the Government say that they hope that there will never be any prosecutions for corporate manslaughter, because the whole Bill will improve the safety culture. I wholeheartedly agree with that, as do many other noble Lords, because we believe that the threat of a conviction, a financial penalty or even, as I have suggested, a negative publicity drive would act as a far greater deterrent than a public inquiry. Furthermore, as every Opposition note to their chagrin, the Government have the power to resist calls for independent public inquiries and have resisted them, in the cases of Zahid Mubarek and Christopher Edwards, all the way up to the Court of Appeal. It might be appropriate, if members of the Committee will allow me, to refer to the statement of Mr Justice Keith, chairman of the Zahid Mubarek inquiry, on publication of the final report on 29 June 2006. He said: "““Robert Stewart was convicted in November 2000 of the murder of Zahid Mubarek at Feltham Young Offender Institution … As things unfolded, it became clear to me that while the Prison Service has made many important and well thought out changes to operational policy, there is still much that could be done to reduce the likelihood of prisoners being attacked in their cells, both in young offender institutions and in adult prisons … Stewart was a prolific offender. He was in custody awaiting trial on harassment charges, having just completed serving his 8th custodial sentence … He had been diagnosed as suffering from a long-standing deep-seated personality disorder which had deprived him of all sense of conscience. He was regarded as dangerous. His correspondence revealed him to have been an out-and-out racist. And he had a history of disruptive and sometimes bizarre behaviour while in detention. Yet because of a pernicious and dangerous cocktail of poor communications and shoddy work practices, prison staff never got to grips with him … Understandably, many people have asked how Zahid came to share a cell with someone like Stewart. A core finding of the report is that malevolence was not involved. Stewart arrived on Swallow wing after the prisoners had been locked up for the night. There was one inexperienced officer on duty at the time. The wing already had 59 prisoners. The maximum it could usually hold was 60. The one space available was in the double cell which at that time Zahid was in on his own. That was the obvious place for Stewart to go … The report spells out the bewildering catalogue of shortcomings, both individual and systemic, at Feltham at the time. I was shocked ""and dismayed by them. I name those members of staff who were in some way to blame for what happened to Zahid. But all this has to be seen in the context of the establishment as a whole. Feltham was identified in the mid-1990s as a prison which was failing on many fronts … The 6 years which have elapsed since Zahid’s murder have given the Prison Service a real opportunity to address the systemic shortcomings which the attack on him has exposed. Much of what would have been recommended is now in place—or at any rate plans are well advanced for their introduction … But it is all very well having the proper systems in place. They need to be working properly on the ground. And at present there is a disconnection between aspiration and reality, because insufficient attention has been paid to ‘outcomes rather than processes’. The challenge for the Prison Service is to ensure that its policies and procedures are matched by good practice on the landings and the wings””." What a terrible story that is. The second reason that the Government have cited is that criminal investigations are costly and impose a resource burden on the Crown. I refer the Minister to my amendments, which would enable the court to issue a negative advertising order on a body as punishment for conviction. In the case of public prisons, it might well be appropriate to convict an organisation of corporate manslaughter without recourse to taxpayers’ money. Of course, there is a danger that Ministers would have to take their share of opprobrium in such an instance, but they already do in any case, as one or two of the Minister’s colleagues in another place would be able to confirm. Let us also not forget that many institutions lawfully holding detainees are privately owned and/or run. They are corporations in every sense other than the fact that they act under a government remit. The third and final defence that Ministers have mustered is that, in the words of the Minister in the other place, the custodial environment deals with difficult people. What with that searing analysis and the Minister’s comment that holding companies should remain exempt by virtue of their odd legal status, I confess that my confidence in the judgment of those on the ministerial Benches is not what it might be. It seems to me that the Government implicitly believe that some activities should never be questioned by courts, even where a person is killed who would still be alive had an activity not been performed in a grossly negligent manner. Obviously we understand the arguments about theatres of war, emergencies, police training and so on, and there are varying degrees of exemption that we consider to be acceptable. We will come to these when we debate detailed amendments on the armed services and the police force. I am surprised that the Government are not confident enough to open themselves far more extensively to the judgment of the courts. The Minister in another place made much of the fact that £26 million has been invested in their safe custody programme, which is an admirable initiative. I wonder that they do not feel secure enough about the success of their schemes to allow the courts to do what, in effect, should be done—to approve the system formally. Indeed, the Minister in the other place went much further. In response to the point raised by my honourable friend Mr Dominic Grieve, that there can be no philosophical or rational justification for exempting government departments from the possibility of culpability, Gerry Sutcliffe said: "““I understand and agree with what he says about the duty of care””.—[Official Report, Commons, 4/12/06; col. 99.]" Finally, like my noble and learned friend, I remind the Minister where public bodies would stand if we did not accept these amendments. The amendments would provide that where there had been a gross breach of a duty of care and where the management of a body had fallen so far below what can reasonably be expected of an organisation in the circumstances that a death occurred, then—and only then—would that organisation be susceptible to prosecution. I cannot imagine why Ministers would not wish to take the opportunity to demonstrate how confident they are that their organisations would never be guilty of falling far below what can reasonably be expected of them. My amendments, and those tabled by the noble Lords, Lord Razzall and Lord Lee, address two essential points of first principle underlying the Bill. First, the amendments—including that also in the name of the noble Lord, Lord Ramsbotham—would put all public bodies on an even footing with private bodies. That is important in these circumstances, because there is no reason why the death of an individual in one situation should be considered less of a death, or less deserving of justice, merely because that situation was presided over by government officials as opposed to privately employed foremen. Indeed, it is all the more of a tragedy and contravention of the natural principle of justice where the state itself acts with such gross negligence that the very lives of its own citizens are forfeit. Let us not be mistaken. It is not just I and my colleagues who recognise the challenges and difficulties that are faced in these services. The courts also would recognise those challenges. I am sure that they would read with great care the provision that a corporate manslaughter conviction could or should be made only where gross negligence resulting in death had occurred. Where that occurs, it is surely right that anybody should face the shame of a criminal conviction. That is the driving principle of the Bill. Government bodies and even Ministers cannot be an exception to that rule. I await with interest the Government’s response to this debate for I believe that it will provide the Committee with an essential insight into not only the way in which Ministers approach the first principles of this legislation but also the value that they place on their responsibilities in their direct or indirect role as custodians of those who have been deprived of their liberty. I beg to move.