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Before proceeding to a Division, which I think is inevitable, I should like to correct one or two misapprehensions. I do, with respect—I mean that; it is not a lawyer’s “with respect”, because I really respect the way the noble Lord, Lord Ramsbotham, put his point of view—believe that the arguments advanced by the Government to date and today have been dismissed too readily. I illustrate that by recognising that the debate is important and complex and that two very senior ex-police officers—the noble Lord, Lord Dear, from the West Midlands, and the noble Lord, Lord Imbert, former Commissioner of the Metropolitan Police—take different views on the

5 Feb 2007 : Column 519

amendment. Neither takes the view that the police should be above the law—nor do I or the Government, who do not believe that any should be above the law—but they take a different view about the validity, merits and justification of extending this particular offence in particular circumstances. It is not, with respect to the noble Lord, Lord Hunt, a question about whether it is accepted or rejected that a duty of care is owed by the state—by the Home Office, for that matter—to those who are in custody. Plainly, such a duty exists. The question is whether corporate responsibility in a criminal sense should be imposed on the Home Office or the police, and whether they should be in the dock on a criminal offence.

Nor is it a question of whether others should be subject to the law. The noble Lord, Lord Hunt, said that these individuals—the police, prison officers—do not expect to be told that they have to be protected specially by the law. Nobody is talking about that. They are subject to the law and if the responsibility for a death could be put at the door of an individual, that individual will find himself or herself prosecuted.

Nor is it a question of whether the Government take a different view on the importance of their responsibility towards those in custody or the tragedy or worse of those who die in custody. I certainly do not. One step that I took soon after taking this job was to personally review the cases of deaths in custody where prosecutions had not taken place to see what improvements could be made. But there is a real question of principle about whether corporate criminal responsibility should extend in particular ways.

My first point illustrates that, as the Bill stands, cases of deaths in custody as a whole are not outside its ambit. They are not. The Bill is clear that the responsibilities as occupiers of premises and to employees are relevant duties of care, and they are only excluded to the extent that there is a decision as to matters of public policy under Clause 3(1). Under Clause 3(2):

those duties of occupiers or employers. What does that mean? I do not for a moment suggest that it means that some of the cases of deaths in custody that noble Lords have in mind would be covered, but others would be. For example, the offence will apply where deaths have arisen as a result of failure to have adequate fire precautions or to maintain cells in adequate conditions, of poor hygiene in workshops, or of failures in medical treatment. Those do not fall outside the Bill. I do not want to pretend that the issues in relation to restraint referred to by the noble Lord, Lord Hunt, and decisions about cell-sharing, police custody or arrest techniques or other areas that flow from public policy decisions would be included.

My second point—

Lord Harris of Haringey: My Lords, I hesitate to interrupt my noble and learned friend when he is moving on to his next point, but am I to understand

5 Feb 2007 : Column 520

therefore that his position is that, for matters to do with a systemic failure, the police are above the law? I have grave doubts about whether it is in the interests of the police service as a whole for there to be that appearance of being above the law—not when it is about the failure of an individual, but where there is a failure of the systems which have been instituted by that organisation.

Lord Goldsmith: My Lords, I am certainly not saying that anybody is above the law. I am describing the effect of the Bill in terms of criminal corporate responsibility—in what circumstances the Bill will impose it and in what circumstances it will not.

My second point concerns the other mechanisms that are available. They have been described in some detail. They exist in a way for public bodies but not private bodies. I will not go through them in detail again because they have been raised on previous occasions; certainly some are important. The Government have made strides towards strengthening the protection of prisoners, including strengthened external investigation of prisons through the Prisons and Probation Ombudsman, the creation of a forum for the sharing of lessons throughout Whitehall, and the establishment of successive suicide prevention programmes. The Chief Inspector of Prisons recognised the improvement of safety in custody in recent reports and I note, as she did, the continuing fall in the number of self-inflicted deaths in prisons, which must reflect the considerable efforts that have been made. All deaths in custody are subject to independent investigation by the Prisons and Probation Ombudsman and, so far as the police are concerned, by the Independent Police Complaints Commission, as the noble Lord, Lord Imbert, said.

My third point relates to the ECHR. I always respect the views of the Joint Committee—indeed, I was one of its inaugural members—but it does not necessarily have invincibility in its views. The key point to draw attention to in relation to the Joint Committee’s report is what it seeks to draw from a Turkish case,Öneryildiz v Turkey. I think that that was the case that the noble Lord, Lord Judd, had in mind. That case establishes for the first time that there may be circumstances in which the existence of criminal responsibility may be necessary to meet the Article 2 requirement. In my reading of that case, it does not say that it has to extend to an offence of corporate responsibility. I accept that we may need to have the availability of criminal responsibility for individuals, but to go beyond that remains, in the Government’s view, not shown in accordance with the legislation.

I have one other observation on the Joint Committee’s report. It recognised that the,

The report went on to say that,

That is not what the Bill said, because the Bill keeps intact these responsibilities as an occupier or as an employer.



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I come finally to the issue of principle. Is there a justification for keeping public policy decisions separate from the jury at the Old Bailey? The view that the Government have taken is that such public policy decisions are ultimately not really appropriate for a criminal court to determine. They are appropriate for Parliament to consider and, from time to time, for public inquiries to consider. A view can appropriately be taken by the electorate, but decisions about whether resources should be applied to education, health or prisons are difficult policy decisions which, in the Government’s view, should not be determined by the courts. That is ultimately the point of principle which lies behind this amendment. Would amending the Bill in this way improve safety in prisons and in custody? Views differ on that issue. The noble Lord, Lord Imbert points to—

Viscount Bledisloe: My Lords—

Lord Goldsmith: My Lords, I will give way to the noble Viscount after I have made this point. The noble Lord, Lord Imbert, points to the risk of people becoming risk-averse and applying resources in a particular way rather than other ways. Others take a different view.

6 pm

Viscount Bledisloe: My Lords, I should like to have another try at getting an answer to the question put a moment ago about systemic failure. The noble Lord, Lord Hunt, talked about improper restraint that is suitable for adults being used on young persons. As I understand it, if the Prison Service or the police service has given clear instructions about when it is appropriate to use such restraint and a warder or prison officer wilfully disregards those, he can and will be prosecuted for manslaughter. When the Prison Service or a police force has incompetently and wilfully failed to issue that guidance to its staff, why should those individuals and the body in question be immune from prosecution?

Lord Goldsmith: My Lords, in lifting immunity for the first time in certain circumstances to submit the Crown to criminal responsibility in these areas, the Government have sought to keep on one side one category of decision-making, which is exclusively in the public policy area, while recognising a government responsibility in the rest. I entirely understand that one wonders whether certain examples should be on one side rather than the other, but that is the ring-fence which this Bill seeks to achieve.

Lord Wedderburn of Charlton: My Lords, I can sum up my question in few words. Although the noble and learned Lord rejects liability in the cases that have been put by the noble Viscount, if a brick falls off the prison which has been grossly negligently maintained, he says that there is liability under this Bill. It is such an extraordinary line that I hope that the noble and learned Lord will be prepared to take the amendments away and think about them.



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Lord Goldsmith: My Lords, I do not think that option is being offered to me although I thank the noble Lord for his helpful intervention.

As I sought to draw to noble Lords’ attention in my first point, the issue is the duty owed by a public authority in respect of a decision on matters of public policy. Whether you allow a brick to fall off a prison is not a matter of public policy. I believe that the noble and learned Lord, Lord Lyell of Markyate, made a not dissimilar point.

It is plain that your Lordships wish to express the opinion of the House. That is entirely within your Lordships’ rights. We shall see what the result is. I thank the noble Lord, Lord Clinton-Davis, for inviting me to consider the matter further but it is not within my mandate.

Lord Ramsbotham: My Lords, I thank all those who spoke about these amendments so powerfully and wisely. I am particularly glad that my noble and learned friend Lord Boyd and my noble friend Lord Imbert raised an opposite view to what has been expressed. Up till now that view has not been expressed at either Second Reading or in Committee. It is only right that it should be expressed. Anyone reading this debate is entitled to expect the broadest cover of all the many issues raised.

I do not wish to single out anyone in particular because I have been enormously impressed by all the speeches, but it would be improper of me not to thank the noble Lord, Lord Hunt, not only for his powerful remarks but for all that he has done to ensure that various briefings were provided in addition to those provided by the Government. It is a huge help to people who do not understand many of these issues to have them explained with such wisdom, clarity and good humour.

As noble Lords said, this is rightly an issue of principle and of great seriousness. As the noble Lord, Lord Dholakia, pointed out, none of us has suggested that every death in custody should automatically be followed by a charge under this Bill. Charges should follow gross breaches of management and the duty of care.

I was very grateful to the noble and learned Lord the Attorney-General for the way in which he covered various points, but I was disappointed that finally he returned to whether this amounted to questioning policy. This is not about policy; it is about good management. Good management does not depend on resources but rather on the whole ethos, structure and direction of management. That is what this is all about. That is what is contained in the Bill. Therefore, as the noble and learned Lord predicted, I wish to test the opinion of the House.

6.05 pm

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 222; Not-Contents, 127.



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Division No. 2


CONTENTS

Addington, L.
Alderdice, L.
Alliance, L.
Ampthill, L.
Anelay of St Johns, B.
Ashcroft, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Barnett, L.
Beaumont of Whitley, L.
Bell, L.
Best, L.
Blackwell, L.
Blaker, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Borrie, L.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brooks of Tremorfa, L.
Brougham and Vaux, L.
Bruce-Lockhart, L.
Burnett, L.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Carnegy of Lour, B.
Chadlington, L.
Clement-Jones, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Craig of Radley, L.
Craigavon, V.
Crickhowell, L.
Darcy de Knayth, B.
De Mauley, L.
Dear, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dykes, L.
Eccles of Moulton, B.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Faulkner of Worcester, L.
Fearn, L.
Feldman, L.
Fellowes, L.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Freeman, L.
Garden, L.
Geddes, L.
Glasgow, E.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Goschen, V.
Greaves, L.
Griffiths of Fforestfach, L.
Hamwee, B.
Hanningfield, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Home, E.
Howard of Rising, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hylton, L.
Inglewood, L.
James of Blackheath, L.
James of Holland Park, B.
Jay of Ewelme, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Judd, L.
King of Bridgwater, L.
Kingsland, L.
Kirkwood of Kirkhope, L.
Laidlaw, L.
Lane of Horsell, L.
Lawson of Blaby, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Linklater of Butterstone, B.
Listowel, E.
Lloyd of Berwick, L.
Low of Dalston, L.
Lucas, L.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
Macdonald of Tradeston, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Miller of Chilthorne Domer, B.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Aberavon, L.
Morris of Bolton, B.
Murton of Lindisfarne, L.
Naseby, L.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northover, B.


5 Feb 2007 : Column 524

Oakeshott of Seagrove Bay, L.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Patel, L.
Pearson of Rannoch, L.
Perry of Southwark, B.
Plant of Highfield, L.
Platt of Writtle, B.
Plumb, L.
Quinton, L.
Ramsbotham, L. [Teller]
Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Rees-Mogg, L.
Rennard, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Rotherwick, L.
Saatchi, L.
St. John of Bletso, L.
St John of Fawsley, L.
Sandberg, L.
Sanderson of Bowden, L.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Shaw of Northstead, L.
Sheldon, L.
Shephard of Northwold, B.
Shutt of Greetland, L.
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Steel of Aikwood, L.
Steinberg, L.
Sterling of Plaistow, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Tebbit, L.
Tenby, V.
Teverson, L.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thomson of Monifieth, L.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
Trimble, L.
Trumpington, B.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Wakeham, L.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Windlesham, L.
Wolfson, L.

NOT CONTENTS

Acton, L.
Adonis, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Boyd of Duncansby, L.
Bradley, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Corbett of Castle Vale, L.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Donoughue, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gavron, L.
Giddens, L.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.


5 Feb 2007 : Column 525

Hunt of Kings Heath, L.
Imbert, L.
Janner of Braunstone, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Yardley, B.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Sewel, L.
Simon, V.
Smith of Finsbury, L.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Varley, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitty, L.
Winston, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

6.20 pm

Lord Henley moved Amendment No. 4:

“(e) a duty owed to members of the public who may be affected by the way in which the persons referred to in paragraph (a) perform their duties;”

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 9, 10, 12 and 20. The amendments extend the duty of care owed by public authorities, thereby ensuring that the offence would apply in a situation where the actions of a public body, even in the carrying-out of exclusively public functions, had been so grossly negligent as to cause the death of a member of the public.

I do not think that it is necessary for me to repeat the arguments that I made in Committee to the Minister, the noble Lord, Lord Bassam. The merit and the virtue in the amendments are clear. As JUSTICE said so clearly in its briefing:

that is the exception exempting public bodies and public functions from the offence—

The exemption of public bodies could amount to a breach of Article 2 of the European Convention on Human Rights and Article 13 concerning the obligation to provide an adequate and effective remedy in respect of breaches of the right to life, to which my noble friend Lord Hunt referred in the debate on Amendment No. 3.



5 Feb 2007 : Column 526

I made it clear in Committee that I was deeply unsatisfied with the response that I got from the noble Lord, Lord Bassam, and his defence of the Government’s position. His primary point seemed to be that the Government had already made great inroads in rolling back Crown immunity, but then he rather hoisted himself with his own petard by saying that,

The current exclusions from Crown immunity do not so much constitute a comprehensive provision for the application of the offence to public bodies, as the Minister claimed in Committee, as simply restate in the Bill what should already exist in law.


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