Corporate Manslaughter and Corporate Homicide Bill

I am beginning to wish even more that the noble Baroness, Lady Scotland, was with us this afternoon, because it falls to me to advance the Government’s position. I do so having listened to what I happily confess has been a stimulating and interesting debate conducted with passion and not a degree of persuasion. Of course, one would expect that, given the personae in the Committee this afternoon. I shall, of course, disappoint the noble Lord, Lord Wedderburn, but for good reason. I appreciate that the issue of safer custody is of high importance to all noble Lords, as it is to the Government. It goes without saying that we have made many efforts to make improvements. The noble Lord, Lord Ramsbotham, might disagree with that, but the Government have attempted to improve the safety of custody in many respects, because it is right that the Government should do so. No Government should be complacent about it, and we should always strive to do better. I shall carefully set out the Government’s position. The drive behind the amendments is a quite proper desire to see fewer deaths in custody but, while I share this desire, it is not right to extend the offence to deaths relating to the exercise of custody functions. That is not because the Government fear adverse publicity from the offence applying to prison deaths. It will not have gone unnoticed by noble Lords that, in any event, adverse publicity attaches itself to cases of the sort described this afternoon, and that is not necessarily contingent on a criminal case. A damning public inquiry or report from the inspector of prisons—as I am sure that the noble Lord, Ramsbotham, would aver—can attract much press interest, a high degree of criticism and a focus on the important issues relating to the tragedy of a death in custody. The offence 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 and for driving improvements across custody services. We all want further improvements in how the prison, police and immigration services look after detainees in their care and we all want fewer deaths in custody, but applying the offence to deaths in custody is not the way to go about achieving that. I want to talk in more detail about why the circumstances of custody make scrutiny of how it is managed unsuitable for the criminal courts. Prisons face a uniquely difficult and complex environment. In seeking to reduce risks, prisons must act within the constraints of the resources available and balance the needs of all prisoners in making those decisions. What is so very difficult is that prisons are not in control of all the factors, in particular of the number of people sent to them by the courts and whether those people are at risk of suicide. Often prisoners bring a number of risk factors, such as substance misuse or mental health problems, into custody with them. The very fact of being in prison can make their risk of suicide significantly higher, but it is not within the gift of the Prison Service to determine which people are committed to prison custody. The decisions of courts in individual cases are crucial, as they should be. The Prison Service cannot simply decide to stop accepting new prisoners or otherwise refuse to accept certain high-risk individuals because of the additional strain that they may place on the limited resources available to monitor such persons to a level required to prevent all suicides or other tragedies. Having to respond to those external pressures can mean that resources in a prison can shift quickly from being adequate to being inadequate. More widely, key decisions of government policy and legislation passed by Parliament impact on how many people are sent to prison. The resources available to prisons to cope with those people result from balancing priorities for the use of public money across the board. Although with other public authorities—for example, local authority provision of certain services—resources can be balanced against provision of service, the Prison Service cannot withdraw or reduce its service. Only the Government can decide whether there is insufficient resource to house safely all prisoners and whether the public interest is better served by sentences being commuted or certain prisoners being released. That involves weighing up competing public interests, where the safety of the public and the safety of prisoners must be balanced against each other. How that is done, and whether the right balance is struck, is not a matter for the courts; it is a matter for the Government, subject, as ever, to appropriate parliamentary scrutiny. The criminal law is a blunt instrument for looking at all these factors and considering the causes of a person’s death in prison. Furthermore, we must consider whether manslaughter is the appropriate label for those who fail to prevent people from taking their own lives or to prevent one person from killing another. If there were no other robust ways in which prisons could properly be held to account, we would need to ensure that they existed, but there are already a number of such accountability mechanisms firmly in place. They include the interrogation of Ministers in both Houses and in relevant committees, robust scrutiny by HM Inspectorate of Prisons and independent investigations of particular cases. All deaths in prison custody are subject to an investigation by the Prisons and Probation Ombudsman and deaths in police custody are subject to an investigation by the Independent Police Complaints Commission; they are also subject to a coroner’s inquest, in public, with a jury. In rare circumstances, public inquiries may also be appropriate, such as in the tragic case of Zahid Mubarek, to which the noble Lord, Lord Ramsbotham, and other noble Lords referred. To take that case as an example, the public inquiry allowed a full investigation, which looked not only at the immediate causes of Zahid’s death, to which a criminal court would be limited—that is an important point—but also at the wider context. Investigations by the ombudsman, the IPCC and public inquiries can fully investigate the causes of deaths in the widest context and make recommendations that drive improvement across the prison estate and in other detention services. They are the right way to examine deaths in custody. The Government are fully aware that safety in custody must improve. We are working to achieve that, and the types of investigations into deaths about which I have been speaking can highlight particular areas for improvement. We are concerned that any criminal investigation as well as these other forms of investigation, which we would certainly not consider reducing, would divert limited public resources and encourage a culture of defensiveness. We all accept that prisons need to be imaginative and to spend their resources to meet a variety of competing demands, including the physical environment in which prisoners are kept and the programmes that are employed to turn around offending behaviour, increase employability and tackle long-term problems such as drug addiction. Imposing the offence on top of that complex matrix risks putting pressure on the way these decisions are taken. We do not believe that that would be in the public interest. There are more 200 deaths a year in prison. Prisons are under pressure to improve, but we do not think that adding to that pressure at this time by applying the offence of corporate manslaughter would achieve those improvements. Before I close, it is worth reiterating the sort of cases that this offence was designed to tackle in the first place. While the Government are working to reduce the number of deaths in custody, whether these measures are in place or are enough are core government policy decisions, which are not what the Bill was intended to examine. The Bill has never been about creating a new avenue for judicial scrutiny of core government decisions. It is about the management of health and safety and the employment and workplace activities to which those provisions generally apply. That is highlighted by the nature of the incidents that have underlined the case for reform over the years. We have not shied away from applying the new offence to government. Indeed, we have gone to some lengths to lift Crown immunity, and I take issue with the noble Lord, Lord Ramsbotham, when he questions the braveness of that. We have gone further than any previous Government, with the result that we find ourselves having these important and difficult debates. The Prison Service will receive no special treatment in its position as employer or occupier, but it has unique public responsibilities. The way they are carried out involves complex questions of public policy. It has never been the Government’s intention to bring forward legislation that would allow the courts to go to the heart of the Government’s decision-making in how they discharge fundamental public responsibilities. For this reason, the Government strongly oppose the Bill being diverted from its true purpose in this way. I hope that noble Lords will agree with me that Parliament is the right place for the rights and wrongs of decisions taken at the heart of government to be examined and that we should not franchise the job out to the courts to do it for us. While I understand the passion that has driven this debate, and I understand why that passion is there, the Government have to reject the amendment. To answer the point made by the noble and learned Lord, Lord Lloyd of Berwick, it is best to say that the new offence will apply to the kind of fatal incident that the offence was originally intended to cover when we first conceived it in the context of the proper management of health and safety. Throughout the discussions of the Bill, we need to focus on that underlying objective to take the health and safety agenda one step further and to make improvements in the proper management of health and safety matters. Deaths in detention or of those working in detention services will be covered when the state of the workplace or the use of equipment in the building is the cause of death; for example, a death caused by the failure of fire-fighting equipment or of a fire door would not be excluded from the scope of the offence. Similarly, a death caused by faulty equipment in a workshop would not be excluded. Other deaths are also within the scope of the offence, such as deaths arising from gross failures in matters such as food hygiene. I hope that that answers the question of the noble and learned Lord, Lord Lloyd, and addresses the issue of occupier liability.