Second Reading

Coroners and Justice Bill – in the House of Lords at 3:09 pm on 18th May 2009.

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Moved By Lord Bach

That the Bill be read a second time.

Photo of Lord Bach Lord Bach Government Whip, Parliamentary Under-Secretary, Ministry of Justice, Government Whip, The Parliamentary Under-Secretary of State for Justice

My Lords, I will be the first to admit that this is a wide-ranging Bill, but I make no apology for that. The Ministry of Justice and its partner agencies face many challenges. There are, quite rightly, increasing demands for more effective, transparent and responsive public services, enhanced public protection, improved access to justice and a strengthening of rights and responsibilities. The Bill will contribute to each of these outcomes.

It will help criminal justice agencies to focus on the needs of victims and witnesses, particularly the most vulnerable. It will strengthen the protection of the public through changes to the law on pornographic images of children and the sentencing of terrorist offenders. It will provide a more accessible and responsive coroner service for bereaved families. It will also help safeguard the public's right to have their personal information protected and reinforce the responsibilities on data controllers to comply with the data protection principles.

These are all high aspirations, but there is no reason why we should not strive to fulfil them and this Bill will play a part in that endeavour.

I turn now to the detailed provisions in the Bill. Part 1 lays the foundation for a wide-ranging reform of the coroner and death certification systems. The Shipman inquiry and the fundamental review of coroners and death certification both advocated a radical overhaul of the current arrangements. Two changes are essential and are at the core of the provisions in Part 1. The first is to place the needs of bereaved families at the heart of the coroner service and the second is to restore public confidence in the protection afforded by the death certification process, so the Bill will introduce a number of key reforms of the coroner system.

Bereaved families will, for the first time, have a clear legal standing in the investigations process, with new rights of appeal against coroners' decisions. The Charter for Bereaved People, a draft of which has been published alongside the Bill, will set out clear national standards of service for those who come into contact with the reformed coroner system.

While maintaining a locally delivered and funded service, the Bill introduces for the first time national leadership through a Chief Coroner. The Chief Coroner will be responsible for setting national standards, including those for training, supporting local coroners and hearing appeals against coroners' decisions.

I want to give your Lordships notice of some government amendments that I intend to bring forward in Committee which will introduce a further element to this national structure.

Aside from their heavy responsibilities for the investigation of certain deaths, coroners retain one residual function dating back to their 12th century origins; namely, the investigation of treasure finds. Following the debates in the other place, we are persuaded of the case for establishing a national coroner for treasure so that in future local coroners can devote all their time to their core responsibilities. I hope this decision will be particularly welcomed by the noble Lord, Lord Redesdale, my noble friend Lord Howarth of Newport and other noble Lords who have played an important role in this field and by their colleagues on the All-Party Group on Archaeology.

The Bill will also remove archaic restrictions on the transfer of investigations between coroners' areas so that inquests may more readily be held closer to the family of the deceased. Our reforms of the death certification system will see the introduction of a uniform process that is applicable irrespective of whether a body is to be buried or cremated. Central to these reforms will be the introduction of medical examiners who will independently verify medical certificates of the cause of death and provide medical advice to local coroners.

Finally in this part of the Bill are the provisions relating to the certification of coroners' investigations. We introduced these provisions to address a very real issue; namely, how to ensure that there is an Article 2 compliant investigation in those very exceptional and rare cases where there is highly sensitive material, such as intercept evidence, that cannot be made public. That problem remains. But, as my right honourable friend the Lord Chancellor announced on Friday, we have concluded that the provisions in Clauses 11 and 12 do not command sufficient support and should be withdrawn. Where it is not possible to proceed with an inquest under the current arrangements, the Government will instead consider establishing an inquiry under the Inquiries Act 2005 to ascertain the circumstances in which the deceased came by his or her death.

Part 2 makes a number of important changes to the criminal law. I know that a number of noble Lords will be disappointed that we are not proceeding with a wholesale reform of the law on murder. However, we judge that the reform of this particularly sensitive area of the criminal law should be taken forward in a staged approach. The most pressing areas in need of reform are the partial defences of diminished responsibility and provocation, in order to ensure more just and equitable outcomes in individual cases.

With regard to provocation, the new "loss of control" partial defence will ensure that a defendant who has killed in anger will be able to plead the partial defence only in extremely grave circumstances. It also makes clear that, in this day and age, sexual infidelity on the part of the victim can never constitute sufficient grounds for reducing murder to manslaughter. On the other hand, a person who kills in response to a fear of serious violence should be able to put forward the defence on that basis, rather than seeking to shoehorn it into a defence based on killings in anger.

The changes to the partial defence of diminished responsibility will ensure that this area of law is modernised and properly takes into account the needs and practices of medical experts. This is as it should be, given that it is the evidence of such experts which is crucial to determining whether any claim of diminished responsibility is properly made out.

The changes to the law on assisting suicide are intended to increase public understanding that the law applies to the internet as it does offline. Our aim is to simplify and update the law in this area and not to change its scope.

There will be many in this House who want to see a change in the law with a view to legalising doctor-assisted dying in certain circumstances. Equally, many of your Lordships would be emphatically opposed to such a change. This House has debated this issue on a number of occasions, including in the context of Private Members' Bills introduced by my noble friend Lord Joffe. It is an issue that stirs passions on both sides of the argument and I can understand why a number of noble Lords would welcome the opportunity for a fresh debate. If I may give some cautious advice, though, the issue of doctor-assisted dying is too important and too profound for it to be slipped into a passing government Bill. It warrants a Bill of its own and, in the Government's view, a Private Member's Bill at that.

Clause 61 sees a return to our debates last Session on the new offence of incitement to hatred on grounds of sexual orientation and, in particular, to the question of whether it is necessary to include a provision purporting to protect freedom of expression. The House will recall that the consideration of the need for such a provision had to be abruptly brought to a close because of the need to secure early Royal Assent for the Criminal Justice and Immigration Bill, but we made it clear at the time that the Government would return to this issue.

The offence of inciting hatred on grounds of sexual orientation has a very high threshold. The offence will be made out only where a person uses threatening words or behaviour with the intention of inciting hatred. There are no circumstances in which the right to freedom of speech should justify such behaviour. The additional provision inserted "for the avoidance of doubt" is unnecessary and could serve to cause confusion about the ambit of the offence. In our view it should be removed.

The provisions in Part 3 deal with witness anonymity orders. They also mark a return to familiar territory which we considered last Session. During the passage of the emergency Criminal Evidence (Witness Anonymity) Bill, we acknowledged that there needed to be a further and fuller opportunity to consider the detail of the statutory scheme to protect the anonymity of vulnerable witnesses, while safeguarding a defendant's right to a fair trial. Chapter 2 of this part re-enacts, with only minor modifications, the provisions of that 2008 Act. That Act has now been in operation for some nine months, and all the indications are that it is working well, including the arrangements for the appointment of special counsel where one is needed.

Chapter 1 of Part 3 seeks to augment the provisions in respect of witness anonymity at trial with provision for investigation anonymity orders. The purpose of this new order is to encourage witnesses to come forward with information to the police, by providing additional reassurance that their identity will be protected. I, of course, freely acknowledge that the investigation anonymity order is innovative. How useful a tool it will prove to be for the police remains to be seen. That is why we have, at least initially, limited the availability of these orders to witnesses to gang-related homicides, but it is incumbent on the Government to explore all possible means to rid our inner cities of the scourge of gun and knife-fuelled gang violence. These orders will be experimental, but an experiment which the police service tells us is worth trying.

Part 4 establishes the Sentencing Council for England and Wales. In doing so, the Bill will implement the unanimous and majority recommendations of the Sentencing Commission Working Group, chaired by Lord Justice Gage. In bringing together the functions of the existing Sentencing Advisory Panel and the Sentencing Guidelines Council, the Bill will streamline the process of producing sentencing guidelines. However, we believe that the council will be more than the sum of the two bodies it replaces. The council will have new duties to monitor the effect of its guidelines and to assess the resource impact of the guidelines and of the Government's policy and legislative proposals.

At its core, the recommendations of the Gage report and, in turn, the provisions of the Bill, seek to ensure greater transparency, greater consistency, and greater predictability in sentencing. Greater transparency is needed so that there is clarity and openness through guidelines as to how offenders might expect to be sentenced. Greater consistency will ensure a more even application of sentencing guidelines, allowing for appropriate judicial discretion. Greater predictability will enable Government and Parliament to foresee, with a reasonable degree of accuracy, the total impact on prison and probation resources of sentencing practice, guidelines and proposed legislative changes, and to plan accordingly.

Let me be clear on what these provisions are not about. They are not about tying individual sentencing decisions to the availability of prison places. Nor are they about forcing judges and magistrates to operate in an inflexible US-style sentencing grid system, where there is no room for discretion to take account of the circumstances of a particular offence or a particular offender. Nor are these provisions about dictating to the sentencing council the format of its guidelines. The Bill ensures flexibility in the way guidelines are framed, to allow for the entire range of offences that the council may consider. We are also receptive to the argument that Clause 107 of the Bill can be improved by providing more discretion with regard to the components of the guidelines, and accordingly we are actively considering what further changes to make to this clause.

Part 7 introduces a new civil scheme, which will enable the courts to order a convicted criminal who has received a payment or other benefit from writing or speaking about his crimes, to pay the money back. The central premise behind these provisions is that it is wrong for criminals to benefit from their crimes, whether directly from the initial criminal act, or subsequently by exploiting the notoriety they have gained. It is distressing enough for victims to have to suffer the experience and consequences of the crime itself; that suffering should not be further compounded by the knowledge that the criminal is cashing in on the pain and hurt they have caused.

I come now to Part 8, which deals with data protection. The provisions in this part are designed to strengthen the protection of personal data by building on the audit, inspection and enforcement powers already available to the Information Commissioner. All organisations hold and use data. In the public sector, personal data are used to expand opportunities for the most disadvantaged, to protect the law-abiding majority and to deliver improved public services. While realising these benefits, government departments and agencies also need to be fully alert to the risks of personal data either deliberately or inadvertently falling into the wrong hands. All data controllers have a duty to take action to mitigate such risks, but as a regulator the Information Commissioner needs appropriate powers to ensure compliance with the data protection principles.

Clause 156 will put on a statutory basis the system of "spot check" assessments that are currently undertaken on government departments by the Information Commissioner. Assessment notices are designed to raise awareness of and compliance with the data protection principles. They are designed to help raise standards; they are not an enforcement tool in themselves. While these provisions have been welcomed, including by your Lordships' Constitution Committee, two issues have been raised; namely, the scope of the assessment notice regime and the absence of an enforcement mechanism. On both these issues we continue to listen to the arguments.

I assure the House that we are not unsympathetic to the arguments that have been put forward. I make a couple of observations. On the scope of the assessment notice regime, there is already a power to apply the regime to private and third sector organisations exercising functions of a public nature. I accept there is not a neat dividing line between the public, private and third sectors and that we need to promote compliance with data protection principles across all sectors. The question for the House is whether that existing power goes far enough, or whether certain parts of the private sector should be subject to assessment notices—perhaps those that process particularly sensitive information or very high volumes of data.

On enforcement for non-compliance, it is important to put on record that the Information Commissioner already has a number of separate enforcement tools available to him, including issuing an information or enforcement notice or applying for a search warrant under Schedule 9 to the Data Protection Act. But I acknowledge the argument that a failure by a data controller to comply with an assessment notice should have direct consequences. All regulatory systems need to be proportionate and targeted. I look forward to debating whether Part 8 of the Bill as drafted gets the balance right.

Before closing, I give notice of one further amendment that I intend to table for Committee stage. This links back to my previous comment on Part 8 that any regulatory regime needs to be proportionate and targeted. The House will be aware that the Courts and Legal Services Act 1990 regulates certain types of no-win no-fee arrangements, but not others. Conditional fee agreements, which allow for a "success" fee to be added to a representative's normal fee, are subject to regulation, but the same protection is not afforded to vulnerable claimants when it comes to damages-based agreements. These agreements, which are particularly prevalent in employment tribunal proceedings, allow the representative to take a percentage of any damages awarded as their fee for bringing a case. We intend to bring forward an order-making power to control how these agreements operate. Among other things, it would be possible under the power, which will be subject to the affirmative procedure, to place a cap on the percentage that can be deducted from damages. We will consult on the detail of the order as the Bill makes its way through the House. The continued absence of controls on this type of agreement is not in the public interest. We need to plug this regulatory gap as quickly as possible to provide protection to vulnerable claimants.

I have no doubt that there are a number of issues covered by the Bill that will be robustly debated. I welcome that. However, I hope that, throughout the scrutiny process, we will not lose sight of the needs of those who have suffered as a result of crime, and also witnesses and, of course, bereaved families. They deserve the best possible service from criminal justice agencies, coroners and their staff. I commend the Bill to the House.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament 3:30 pm, 18th May 2009

My Lords, the Minister described this Bill to your Lordships' House as "wide-ranging". We take the view that it could be broken up into several Bills and that it would probably, as a consequence, get better scrutiny. I prefer to call this Bill a miscellany or even a farrago, redolent of Mr Churchill's famous pudding.

However, I want to start off on a positive note. The Minister announced that the Government have had second thoughts about the position of the treasure coroner and have decided to restore it. That was the position when the draft Bill was considered. I say on behalf of the Opposition that we welcome that move, as, I am sure, do many Members of your Lordships' House.

The first part of the Bill is devoted to the coroners' service. Broadly speaking, we support what the Government have done. However, in some respects, we think that they have not gone far enough, particularly in relation to financial arrangements, by which I am referring not to the total amount of money to be devoted to the coroners' service but to the way in which it is to be distributed. The coroners' courts are not to be part of the Courts Service and therefore will not get its support. The Chief Coroner has no budget. Therefore, everything depends on the postcode lottery. I should like to take this matter further in the time that I have available in this Second Reading debate; but I know that the noble Lord, Lord Ramsbotham, is lying in wait for the Minister further down the speaking list; in due course, the Minister will get a much fuller and more competent analysis of this problem than I am able to give this afternoon.

Briefly, I also draw the Minister's attention to a letter issued by the Marchioness Action Group on 23 April. It says a number of things, but I think that I can encapsulate its sense of direction in a few sentences. It says:

"The new Bill does not incorporate lessons learnt after the Marchioness, Shipman and Alderhay. It has retained the 'old' Coroners System with only a few 'minor' amendments to existing laws. We therefore question the validity of the new bill to achieve a duty of care to the bereaved".

Without addressing myself to the content of that statement, I feel that it needs a response from the Minister. The Minister well knows of the bona fides of this action group and the appalling experiences that its members have undergone. This issue of a duty of care to the bereaved—even if, at the end of the day, the Government do not feel that it is something that they can put on the face of the Bill—needs a powerful answer. I hope that the Minister will attempt to give such an answer at the end of the debate. He may feel that something fuller is more appropriate at a later stage of the Bill.

Another matter to which I must direct my attention under Part 1 is the Government's decision, last Friday, to withdraw Clauses 11 and 12. This decision was announced in a press release by the right honourable gentleman, Jack Straw.

Photo of Lord Bach Lord Bach Government Whip, Parliamentary Under-Secretary, Ministry of Justice, Government Whip, The Parliamentary Under-Secretary of State for Justice

My Lords, it was given in a Written Ministerial Statement to this House before the press release; it was given in a Written Ministerial Statement to the other House, which was sitting on Friday. I want to make that clear. It was not done by way of press release alone.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I am most grateful to the Minister. I was not about to make a constitutional point about the inappropriateness of making such an announcement; I was simply using the press release to explain to your Lordships' House—for those noble Lords who have not read it—what the right honourable gentleman, Mr Straw, said. He stated that,

"following further discussions in the House and with interested parties it is clear the provisions still do not command the necessary cross party support and in these circumstances the Government will table amendments to remove clauses 11 and 12 ... from the Bill. Where it is not possible to proceed with an inquest under the current arrangements, the Government will consider establishing an inquiry under the Inquiries Act 2005 to ascertain the circumstances the deceased came by his or her death".—[Hansard, Commons, 15/5/09; col. 68WS]

As I understand it from what the Minister said, he will come forward with amendments in relation to this matter in Committee. However, I should like for a few minutes to point out to him one or two of the potential pitfalls of the Inquiries Act, if it is the Government's intention to use it for the purposes that Mr Straw announced.

First, in what circumstances can such an inquiry be convened? Here we should look at Section 1(1), which states:

"A Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that—

(a) particular events have caused, or are capable of causing, public concern, or

(b) there is public concern that particular events may have occurred".

This is a very wide-ranging discretion that has been given to the Minister. Will the noble Lord bring forward in Committee or on Report a clause constraining the Minister's discretion to an appropriate level in relation to the task that the Secretary of State for Justice seeks the Inquiries Act to perform?

It is clear that a High Court judge can be appointed to be chairman of an inquiry, but the Secretary of State, under Section 3, has discretion as to whether to add other members. I presume that one consideration might be whether certain lay members should sit with the High Court judge in lieu, in a sense, of a jury.

The section that most worries me, however, is Section 5, which states in subsection (1):

"In the instrument under section 4 appointing the chairman, or by a notice given to him within a reasonable time afterwards, the Minister must ... before that date... set out the terms of reference of the inquiry".

That is a very reasonable requirement. However, Section 5(3) goes on to say:

"The Minister may at any time after setting out the terms of reference under this section amend them if he considers that the public interest so requires".

Subsection (4) states:

"Before setting out or amending the terms of reference the Minister must consult the person he proposes to appoint, or has appointed, as chairman".

One can envisage a situation in which a High Court judge has been appointed and has accepted the terms of reference; then, at some stage during the inquiry, the Minister suddenly issues an alternative term of reference. There is, indeed, an obligation to consult the judge; but the judge lacks the power to veto the Minister's decision to alter the terms of inquiry.

I could go on about the details; but I hope and trust that your Lordships will have heard enough to know that it will simply not be enough for the Government to say, "We will use the Inquiries Act as a substitute for Clauses 11 and 12". Your Lordships' House needs a great deal more than that.

I will deal with other parts of the Bill as swiftly as I can, because I know that there is a large number of speakers. Clauses 45 and 46 seek to abolish the common law defence of provocation. That was one of the matters considered by a wide-ranging Law Commission report on murder, published in 2006. Frankly, to refer back to what I said at the beginning of my speech, I would far prefer that matter to have been dealt with in the context of a wider reform of the law of murder; and, as a matter of detail, I simply do not understand why, in the Government's search to raise the hurdle for a plea of provocation, sexual infidelity is singled out as an issue that would not be accepted as a provoking factor.

There are important provisions on encouraging or assisting suicide. As your Lordships' House would accept, they are entirely a matter of conscience. I await with interest the debate on that issue, to which I shall listen and perhaps participate in.

Clauses 54 to 58 deal with prohibited images of children. We entirely accept the necessity for these clauses in the Bill.

Clause 61 concerns hatred against a person on grounds of sexual orientation. I am sure that most of your Lordships are aware that the clause seeks to reverse the decision of your Lordships' House in the debate and vote last spring when your Lordships approved the amendment moved by my noble friend Lord Waddington—now Section 29JA of the Public Order Act 1986. I voted for my noble friend's amendment at the time and I intend to do so again.

However, let me add one point. The Minister said that the Government stated at the time that they intended to bring back this matter at a later stage. I do not remember exactly what the Minister said at the appropriate moment; but surely the correct constitutional approach for the Government to have taken would have been to reverse, in another place, the amendment moved by my noble friend Lord Waddington and to have come back to your Lordships' House in the usual way. The Government chose not to do that. Therefore, I do not think it constitutionally proper for the Government to raise the issue at the first opportunity after those events took place. Your Lordships are entitled to conclude that the Government had reached the decision that the amendment moved by my noble friend Lord Waddington was acceptable. That should, in my submission, be taken into account by your Lordships when we make up our minds how to deal with the issue which will undoubtedly be before us again as we consider the Bill.

The clauses on anonymity of witnesses broadly reflect the emergency legislation, which we previously supported. I just make two observations. First, I am sorry not to see in the Bill an initiative that received particular support from the noble Lord, Lord Thomas of Gresford, involving a statutory procedure that would give power to the judge to appoint special counsel to look into an application by the prosecution for the anonymity of certain witnesses. I know that there is a common law power for a judge to refer the matter to the Attorney-General; but it is used rarely, the procedure with respect to it is unclear and, when it is used, it has proved time-consuming. Frankly, I do not understand why the Government are not prepared to put this matter on the face of the Bill.

My second observation is the inescapable fact that our hands are tied down tightly by the case of Davis, which itself flows from the jurisprudence of the European Court of Human Rights. Where the credibility of a witness is the decisive issue in a case, it will simply not be appropriate or, ultimately, useful to use the anonymity provisions, however tempting they are in the context of matters such as gang warfare.

As the Minister will have seen from studying the proceedings in another place, the Opposition have grave reservations about the terms of reference for the new Sentencing Council for England and Wales. I know that there is a saving clause referring to the "interests of justice"; but what worries me about all this is that judges are increasingly seen—if I may put it bluntly—as civil servants. They are not seen as independent under the throne, as they ought to be viewed constitutionally. The constraining of their discretion in the Bill is at least one and possibly two steps too far. I know that the Minister will say that a very distinguished—and indeed he is very distinguished—Lord Justice of Appeal, Lord Gage, reached certain conclusions in his report. However, his report makes it clear that he expects a number of other things to happen before the approach that the Government take in the Bill is adopted.

We were very pleased that the Government decided to withdraw those parts of the Bill that dealt with information sharing. We broadly support what remains on this matter, although we would like to see specific provisions in place to address situations where information is carelessly lost.

There are other matters of importance in the Bill to which I have not had time to refer. I am delighted to say that my noble friend Lord Henley will be winding up on behalf of the Opposition and I have no doubt that he will cover any gaps that I have left.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General 3:47 pm, 18th May 2009

So here we are again, my Lords. A sensible reform of the criminal law would be to take a single topic, to carry out research and, after full consultation, to deal with that topic comprehensively but concisely in a single Bill which would pass through Parliament after proper debate and scrutiny by both Houses. It appears from what the Minister has said this afternoon that this will happen on the issue of assisted dying but not on the law of murder—which one would have thought had much wider implications for the public of this country. It does not happen, of course. I called the last criminal justice Bill, last year, a ragbag. This Bill, to adopt the word of the noble Lord, Lord Kingsland, is a miscellany of no fewer than 15 discrete and complex topics that have been thrown together. Important issues were crowded out in the other place, and at this stage it is quite impossible for me to cover even a majority of the issues that arise. I am, however, supported by my noble friends on these Benches, who will themselves deal with discrete matters.

It is a constitutional scandal that the Government's proposals for the reform of the law of murder to which I referred a moment ago—regarded as deeply flawed and unworkable by all those who have practical experience of the criminal law: judges, barristers, solicitors and academics as well—were never reached on the Floor of the House of Commons. Two days were allocated there for Report and Third Reading, and on the first of those days government last-minute business ensured that debate did not start until 6 pm in the evening, so that the proposals about murder were never debated on the Floor of the House.

We refer to the process whereby amendments are passed by this House, rejected by the other and returned to us for further consideration as ping-pong—or, as Boris Johnson would call it, whiff-whaff. This language of the playroom may enable the Government to play down the significance of the constitutional anomaly that has now been reached whereby the elected House has ceased to debate a Bill in full at all. We can apply that to all the Bills that come before your Lordships' House.

In the field of law reform, there have been two conflicting strands in the Labour Government over the past 12 years. The enlightened strand comprised those who realised the real importance to the people of this country of emphasising and enforcing their individual human rights and who have taken the trouble to draw clear lines between the judiciary, the Executive and the legislature. I give as examples the Human Rights Act, the creation of the Supreme Court and the appointment of judges by an independent Judicial Appointments Commission.

However, in more recent years another tendency has taken control of the Government. Perhaps in the light of rebuffs to defective legislation in the courts, that tendency does not trust the judiciary and seeks to limit and to confine the role and discretion of the judge—as the noble Lord, Lord Kingsland, said a moment ago, to turn the judge into a civil servant. You will recall, for example, the Government's argument in 2004, in the case of the nine foreign detainees held under the Terrorism Act in Belmarsh prison without trial, that the judicial decision-making was undemocratic.

The noble and learned Lord, Lord Bingham, giving the lead judgment of the Judicial Committee on which, exceptionally, nine Law Lords sat, said the following, which we should have in the front of our minds:

"It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true ... that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic".

It is right, when we approach another Bill of this type, to emphasise that the independence and integrity of the judiciary, and of the legal profession on which the judiciary depends and from whose ranks it is constantly renewed, are vital pillars of democracy. It is no coincidence that in states where the lawyers and judges are attacked until they become tools of the Executive, democracy does not flourish.

I suspect that the people of this country would not want judges swept away from the Bench and replaced by elected politicians; nor, to recall earlier defeated government proposals, that ordinary juries should be replaced in complex fraud cases by expert juries of investment bankers or other City operators. That is what came before us and that is what this House rejected.

I hope to demonstrate the relevance of those observations in considering some of the Bill's provisions. I start briefly with sentencing—my noble friend Lady Linklater of Butterstone will be winding up on this topic. It is important to consider what is proposed in the Bill and to see that there is an attempt in Clause 107, in particular, to confine, cabin and crib the decisions of judges in sentencing matters.

The Minister said that the Bill is not about restricting judges, that we do not have grid lines and that there is supposed to be flexibility. The Sentencing Council could be a very positive thing. It could do a great deal of good in educating the public. My noble friend will expand on those ideas in due course. However, it is an example of how the Government's tendency to try to cut down the role of judges is made obvious.

I turn to Part 1, concerning coroners. I declare an interest in that in my early years as a solicitor, my senior partner was the coroner for Denbighshire and had presided over the largest inquest that this country has seen—the inquest into the deaths of about 280 miners in the Gresford Colliery disaster of 1934—so I was aware early in my career of the significance of coroners and the important role that they play. There have been all sorts of reports about coroners. There have been draft Bills, pre-legislative scrutiny, changes announced and a draft charter for bereaved people. You would think that there was enough meat for a discrete Bill on coroners alone, which could be properly discussed and scrutinised in both Houses.

The greatest controversy has so far been over Clauses 11 and 12. Of course, last Friday, as we have heard, the Lord Chancellor withdrew those provisions. However, timeo Danaos et dona ferentes: the Lord Chancellor's statement envisages that the Government will instead consider, in undefined cases, establishing an inquiry under the Inquiries Act 2005. I adopt the reservations that the noble Lord, Lord Kingsland, expressed on this topic a moment ago. Worse than that, Section 19 of that Act permits a Minister to issue a restriction notice to the chairman of an inquiry to restrict disclosure or publication of any evidence—or documents given, produced or provided to the inquiry—on the grounds of public interest. That public interest is defined in the Inquiries Act in far broader terms than in the provisions that the Lord Chancellor is now dropping, including, for example, damage to the economic interest of this country—such as the arms trade, shall we say? It would give power to the Minister, by the restriction order under the Inquiries Act, to exclude the family from the hearings. My noble friend Lady Miller of Chilthorne Domer will say more on this topic in due course.

The Government often declare their determination to put the victim first. Where death has occurred in extraordinary circumstances, the family of the deceased are the victims. The noble Lord said a moment ago that they deserve the best possible services. I hope that will include a right to legal aid for the family, because at the moment it is refused. There are undoubtedly many inquests that a coroner is perfectly capable of conducting on his own without legal representation from any quarter, but where an interested party—be it a factory owner, the police, the Prison Service or the military—instructs solicitors and counsel to protect its own interests, surely there should be a clear right for the family to have legal aid. Very often, in factory accidents, police shootings, prison cell deaths and military deaths, there are significant parties whose interests are to minimise or contest the cause of death. The family deserves to be represented.

I give an example. In April 2007, two colour sergeants, including Mark McLaren, aged 27, were crushed to death under a Puma helicopter. The landing of five helicopters in the hours of darkness north of Baghdad was botched, and two of them collided. Mark's family was told that legal aid was not available for representation at the inquest, although the Ministry of Defence had instructed counsel. I am pleased to say that the noble Lord, Lord Bach, listened to representations from me. Following representations, a special procedure was employed, which gives the Legal Services Commission discretion to grant legal aid. After much worry and form-filling, the family was indeed granted legal aid as a matter of discretion. At the inquest last December the coroner heard that Sergeant McLaren had been fastened in by a harness that was defective and should have been replaced.

Several soldiers and RAF personnel gave evidence anonymously from behind a blue curtain to the effect that the blades of the helicopters had not clashed and that this was all wrong. They were cross-examined on behalf of the family by an experienced solicitor-advocate. The coroner rejected the anonymous evidence and concluded that Sergeant McLaren would not have been thrown out of the helicopter if he had been provided with the correct equipment. The coroner made recommendations to the Armed Forces Minister on this and on four other important safety issues, but the sting in the tale is that the cost of the families' representation will be deducted from any compensation that the family may subsequently receive. Of course, the taxpayer will pay the Ministry of Defence's costs for instructing counsel at the hearing. We accept many things about coroner reform. It is good to have a single service, but the funding is a different issue, and remaining with local authority funding will not be satisfactory.

Part 2 deals with murder, infanticide and suicide. The law on murder is widely agreed to be in a mess. In October 2004, the Home Secretary announced that the Home Office, the Department for Constitutional Affairs and the Attorney-General's Office would jointly review the law on homicide. The Law Commission carried out the first part of that review, although it was precluded specifically from considering whether the mandatory life sentence should remain. It published a report that completely restructured the law on murder into a three-tier system. The first tier would require proof of an intention to kill or of acting with the knowledge of a serious risk of death, and would carry a mandatory life sentence. The second tier would require proof of an intention to cause serious harm only, and would give the judge the discretion to determine the appropriate sentence. The Law Commission proposed that partial defences of diminished responsibility and provocation would reduce first-tier murder to second-tier murder rather than, as at the moment, to manslaughter.

The Government have looked at all this and have proceeded on a pick-and-mix basis. They have rejected the three-tier structure as a whole but have plucked out the Law Commission's proposals on provocation, diminished responsibility and infanticide. However, the proposals were carefully designed by the Law Commission not to amend the existing law of murder and manslaughter but as part of its proposed three-tier structure. We shall explore in Committee why the Government rejected its proposal that the diminished responsibility partial defence should be available to a child or young person under 18 on the ground of developmental immaturity. A purist situation is now envisaged in which a 40 year-old man can claim diminished responsibility if he has the emotional maturity of a 10 year-old, but a 10 year-old has no defence of diminished responsibility for having that very same lack of maturity.

On the partial defence of provocation, we have in this Bill the Law Commission's mangled proposals and, it appears, from a feminist agenda. First, Clause 44 provides that a loss of control will reduce murder to manslaughter if there is a "qualifying trigger". The loss of control, however, does not have to be sudden or temporary as it does in current law. I do not see how the loss of control can be anything other than sudden, but that is what the Bill says.

Another oddity, to which the noble Lord, Lord Kingsland, has referred, is that a thing done or said that constitutes sexual infidelity is to be disregarded. Why should a jury be prevented from considering a loss of control due perhaps to some of the deepest passions that can be aroused, and on the other hand take almost the most trivial thing as provocation so long as it does not involve the concept of sexual infidelity?

There is so much more that I could say and I know that I am wearying your Lordships by continuing as long as I am—although I am now getting some encouragement from my left. Are the proposals based on sexual infidelity the result of evidence? The Domestic Violence, Crime and Victims Act 2004 provided, in Section 9, for domestic homicide reviews. That was another compendious Bill, of some 63 clauses and 12 schedules. I cannot find that there has ever been a domestic homicide review. That is another provision in that Act which has not been brought into effect. All these things are put forward—someone has a bright idea in the Home Office to bring it forward, it goes through, there is a solid majority in the other place and nothing happens. That is precisely what has happened with the Commissioner for Victims and Witnesses, which has now been resurrected in this Bill. The provision was passed in 2004 and not at any stage implemented.

There are so many other issues here that we will be looking at in due course—witness anonymity, encouraging or assisting suicide, and vulnerable and intimidated witnesses. For the moment, however, I have gone on long enough and I shall allow your Lordships to continue what should be a lengthy and very interesting debate.

Photo of Baroness D'Souza Baroness D'Souza Crossbench 4:06 pm, 18th May 2009

My Lords, on 8 April this year, the High Court in London ordered the release of four Rwandans suspected of genocide who were arrested and had been held in the UK since 2006. The evidence of their active involvement in the terrible events of 1994 in Rwanda, painstakingly gathered over many years, indicates that at the very least there is a case to be answered. The reason the High Court reached this decision is because of an anomaly in UK law which effectively allows impunity from serious crimes.

I speak on this topic because of a long-term interest in justice for those suspected of heinous crimes and to introduce on behalf of the noble Lord, Lord Carlile—who unfortunately is unable to be here today—his concern and, indeed, his intention to table amendments to the Coroners and Justice Bill to deal with this gap in the law. I acknowledge here the assistance of REDRESS, an anti-torture organisation of which I was once director, African Rights and the Aegis Trust.

The amendments that will be tabled would allow jurisdiction in the UK Courts over those present in the UK and suspected of crimes against humanity, war crimes and genocide. In so doing, they would address the limitations of the International Criminal Court Act 2001, which came into force in the UK in September 2001, regarding crimes committed after that date. At present the law allows such action only if the suspect is a UK national or resident in the UK.

In the interest of clarity, let me give a hypothetical example. A person who is a UK national or resident charged with serious crimes against humanity committed after 2001 and outside UK territory is nevertheless subject to UK jurisdiction. However, should that person be a non-resident who happens to be in the UK, he or she is entirely free to carry on living in the UK with impunity. Thus the anomaly is that those suspected of extremely serious crimes can visit Britain, live in the UK without taking up residence or visit to obtain medical treatment and escape prosecution. As the noble Lord, Lord Lester, has pointed out, if a UK citizen and a non-UK resident Iraqi citizen were both to commit a crime against humanity, the UK citizen would face the law in the UK but the Iraqi would not.

There are other inconsistencies which we would seek to remedy within the context of this Bill. A contradiction, for example, has arisen for all the right reasons in the case of the four Rwandan suspects recently released. To allow extradition to Kigali might have infringed the Human Rights Act by risking a less than free or fair trial, ill treatment and/or even the death penalty. That should not result, however, in their impunity. The amendments which will be tabled would allow a prosecution to go ahead, not in Rwanda but here in the UK, for these non-residents who conspired to commit genocide in 1994, within existing UK legislation.

A second anomaly in the law concerns retroactive justice. It is a fundamental feature of UK, European and international law that statutes should not be retroactive. Justice requires that conduct which was not criminal when carried out cannot be penalised. Thus, those who are suspected of serious crimes committed prior to 2001 also have impunity under the International Criminal Court Act. The intention is to amend the Act procedurally to allow the UK courts to prosecute past acts that were crimes at the time using the Genocide Act 1969, the War Crimes Act 1991 and the Geneva Conventions Act 1957. In so doing, these amendments would simply allow the UK courts to implement existing law in a broader range of cases.

These cases are by no means rare. It is reported that, since 2004, something like 600 cases per year have come up and it is believed that there may be more than 100 suspects in the UK at the moment against whom there is compelling evidence of involvement in serious crimes. A further amendment will seek to establish a dedicated and adequately resourced police unit to follow up such cases. As I understand it, the Metropolitan Police is fully in favour of such a unit and funding has been applied for.

Ultimately, the concern is to close a gap in UK law into which suspects can and do fall, and thus remain in the UK. This anomaly sends a message to the world that serious crimes in the UK will not be dealt with by the justice system. In turn, this approach perhaps conveys a further message that crimes against humanity, war crimes and genocide will not be punished due to an easily remedied technicality and that therefore the UK is a safe haven. Finally, unless we muster the political will to treat these crimes with the full weight of the law, we will be no nearer to building a culture of deterrence for such heinous crimes.

Photo of The Bishop of Southwell and Nottingham The Bishop of Southwell and Nottingham Bishop 4:11 pm, 18th May 2009

My Lords, we are faced again with yet another wide-ranging criminal justice measure, which was described in another place as "a Christmas tree Bill" from which many topics could be hung. As previous speakers have mentioned, a few baubles seem to have fallen off, such as the Government having had better thoughts about their proposals on information sharing and certified inquests. I shall touch on three subjects in particular which concern these Benches.

First, I welcome the fact that the Bill takes further steps to support and protect witnesses—they have been a long-neglected group. The integrity and effectiveness of our criminal justice system depends on the ability of witnesses to give evidence to the best of their ability and without intimidation. At the same time, any measures to assist witnesses must not compromise the right of defendants to a fair trial. The Bill rightly seeks to balance these requirements against each other.

Last year, your Lordships' House wrestled with the dilemmas raised by the Criminal Evidence (Witness Anonymity) Bill. The need for speedy action was clear. But it will be helpful to revisit those questions, as well as to consider the new proposals on anonymity in investigations and help for vulnerable and intimidated witnesses, while remembering that vulnerable defendants may be among those in need of such help.

Secondly, I welcome the attempt in Clauses 49 to 51 to clarify the bearing of the law on assisted suicide upon internet material. Since the Suicide Act 1961, developments in communication mean that powerful influences can be brought to bear on emotionally vulnerable people, not least young people, by so-called suicide websites. This is a very sensitive area where people frequently act under tragic and burdensome pressures. We must avoid criminalising people who are merely discussing their feelings. We should seek to ensure that the operation of the law is compassionate towards people who find themselves in a difficult position because their relatives wish to end their own lives. However, it is vital that the law should continue to prohibit irresponsible or unscrupulous actions which would have the effect of encouraging or assisting suicide.

In Committee, your Lordships' House must examine the drafting of these clauses so that the lines are drawn in the right place, as clearly as possible. We should not accept any amendments which would relax the existing law and diminish the protection offered to those at risk of self-destruction. Such a step would be wrong in itself. It would also be totally inappropriate in the context of this Bill, which proceeds from the assumption that the existing law is right in seeking to protect life, and needs to be changed in order to do so more effectively in today's circumstances.

Thirdly, Clause 61 reopens last year's argument about incitement to hatred on the ground of sexual orientation, by removing the provision "for the avoidance of doubt" which was added to the definition of the offence through the efforts of the noble Lord, Lord Waddington. The change has become symbolic, perhaps even totemic, for people on both sides of the argument, but it is worth reminding ourselves that the basis of disagreement is relatively narrow.

We on these Benches have no problem with the principle that people should be protected from inflammatory and intimidating behaviour towards them on the basis of their sexual orientation. Nor, indeed, do we quarrel with the definition of the offence, which provides a high threshold by requiring both the intention to stir up hatred, and words, actions or material of a threatening character.

Our concern is with the potential application of the law to restrict legitimate discussion and expression of opinion about sexual ethics and sexual behaviour—bearing in mind that existing public order legislation has sometimes been used to warrant over-zealous police investigations against people with conservative views on homosexuality. It is generally agreed that this should not be so. The question is, how is it best avoided? Your Lordships' House voted in favour of a statutory statement that discussion or criticism of sexual conduct would not of itself constitute an offence. It is hard to see any objection to this most modest of provisions. The worst that can be said is that it might be unnecessary, whereas its removal could be damaging to the freedom of expression. It therefore seems to me that the case for Clause 61 is weak, and I hope that in due course your Lordships will not approve it.

My selective focus today does not imply that other matters in the Bill are unimportant. Its provisions on defences to murder, possession of images of children, sentencing, legal aid and criminal memoirs are highly significant, as indeed are the issues raised by the noble Baroness, Lady D'Souza, a moment ago, pertaining to the intentions of the noble Lord, Lord Carlile, with which I also associate myself.

To return to the analogy of the Christmas tree, these proposals are less like baubles than sets of fairy lights—complex, tangled and liable to fuse. They require more sustained and intricate treatment, which we on these Benches look forward to in Committee. I support the Bill.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour 4:17 pm, 18th May 2009

My Lords, I, too, support this Bill. Of all the public services, the justice system is the one that requires legislation to change it. I am deeply out of sympathy with those in your Lordships' House who criticise the Bill for being a Christmas tree. Having been Lord Chancellor and Justice Minister, I know that you have to fight to get particular provisions in. I think that the right way in which to judge a Lord Chancellor or Justice Minister is to look at the extent to which he can drive through changes within the Government and the quality of those changes. I believe that the Lord Chancellor in this case shows that he has got clout in government and that the judgments that he has made are the right ones in relation to what changes are required. Although it is easy to say, "We should just move methodically from one area of the law to another", if you are serious about change and reform in the justice system, you have to pick and choose. I think that, by and large, the judgments that the Lord Chancellor has made are accurate.

I wish to refer to two particular matters. First, I strongly support the plea made by the noble Baroness, Lady D'Souza, in relation to genocide. What she described was an entirely correct decision made by the High Court a few weeks ago that four Rwandans charged with genocide could not be deported to Rwanda because they would not, by British standards, receive a fair trial. I do not contest the conclusion of the High Court; indeed, I am almost certain that it was the correct one. However, those people cannot be prosecuted in this country, because the horror of the Rwandan genocide, in which 800,000 people died over the space of three months, took place in 1994 and the law in this country applies only to crimes that have occurred after 2002. We need to change the law.

The noble Baroness, Lady D'Souza, referred to the issue of whether it is wrong to change the law retrospectively. The human rights convention says that it is legitimate to change the criminal law retrospectively where something is criminal,

"according to general principles of law recognized by civilized nations".

If I need to say that in 1994 it was recognised by civilised nations that genocide was a crime, it seems as though I am stating the obvious. However, I have a legal basis for saying it as well as one of common sense, which is that in 1991 the United Nations set up the International Criminal Tribunal in The Hague to try those who were guilty of the Yugoslavian genocide. Civilised nations, as represented by international law, had committed themselves to the recognition of genocide as a crime. We should do the same here, and we should do it for a particular reason.

The Rwandan nation has done its level best to deal with the genocide in an acceptable way. There were the tribunal hearings in Arusha, which have now finished, and the justice system is now there for those guilty of committing acts of genocide or something similar. If these four people cannot be deported to Rwanda, we as a nation should help the Rwandans as much as we can. All that is required is that the crime of genocide be made retrospective to a date—1991 is the obvious one—set before the genocide in Rwanda. I strongly support what the noble Baroness, Lady D'Souza, has said and I will strongly support the amendment proposed by the noble Lord, Lord Carlile. I hope very much that this House would regard such an amendment as something that we can do as an indication of our obligation to scrutinise. I do not believe for a moment that it would divide any feeling in this House at all.

The second point that I wish to make relates to assisted suicide. The noble Lord, Lord Bach, is absolutely right to say that it is wrong for us in this House to try to embark on any significant changes in the law on assisted suicide. What this Bill does, in effect, is to re-enact the law with changes to reflect the way in which the law has changed in practice over the past few years. I strongly oppose the law being re-enacted without reflecting one significant change. The Director of Public Prosecutions will not prosecute people who, in good faith and with good motives, assist a loved one to go to a clinic in Switzerland or another place where suicide is lawful. He will not prosecute because he rightly believes that it is not in the public interest to prosecute in those circumstances.

Approximately five days ago, the previous DPP, Sir Kenneth Macdonald, said on the radio that there were 100 cases in which he had decided not to prosecute in these circumstances. It is wrong as a matter of principle, as the noble and learned Lord, Lord Bingham of Cornhill, said on the same programme, that the law should be set to one side by one individual, no matter how important that individual is. This House should not re-enact Section 1 of the Suicide Act, which makes it a crime to assist suicide, unless it properly reflects the way in which the law operates at the moment.

There are two further reasons why the amendment should be passed. The first is that, if we do not put in a detailed amendment, we will not be able to identify the proper safeguards in relation to such a provision. The current situation is that the Director of Public Prosecutions makes a decision applying his common sense. There are no guidelines as to what is required as a matter of safeguard; he simply focuses on the facts and comes to an overall decision. The right course is that we should put in safeguards so that what is required is much clearer.

The second reason is that there is uncertainty about the law. However much one may, as a matter of principle, oppose the idea of this being allowed, it happens. People should know what the law is. Miss Diane Purdy should not be forced to go to court to try to seek immunity for her partner before he takes her to Switzerland. It is wrong that the law is so uncertain, so I will support an amendment in this House not to seek to change the law fundamentally in relation to assisted suicide but to make the law reflect the way in which it is operated. That is how the law should operate and one of the functions of this House is to ensure that that is right.

Finally, it is a source of great sadness to me that Viscount Bledisloe is not here today. He participated in every justice Bill in which I have been involved since 1997, when I came into the House. His contributions were significant and effective. We shall all miss him.

Photo of Lord Waddington Lord Waddington Conservative 4:26 pm, 18th May 2009

My Lords, in deference to the noble and learned Lord, I will not refer to the Bill as a ragbag, but he cannot deny that it is made up of a collection of unrelated measures, some of such importance that most would take the view that they should have been the subject of separate Bills. Some in this category, such as the changes to the law of murder, were scarcely considered in the Commons because of an absurdly restricted timetable.

The Bill contains the new offence of encouraging or assisting suicide. In my view, there is nothing wrong with creating such an offence, but the danger of popping it into a Bill such as this is already apparent, with pro-euthanasia campaigners indicating their wish to amend the Bill so as to allow assisted suicide to at least some extent. It would be appalling if they were allowed to succeed. I agree with the Minister that whether assisted suicide should be allowed is a very complex and highly controversial matter. The subject, if Parliament wishes to consider it yet again, should be treated as the very important matter that it is and not as if all that is required is a little tweaking and finessing of existing law.

Clause 61 repeals a provision that only last year the Government put on the statute book. That is truly extraordinary behaviour and, so far as I know, behaviour without precedent. It is not right to say that, being up against the clock, the Government had no option but to act as they did. Indeed, I was having an early dinner with my noble friend Lady O'Cathain, who throughout has been an enormous help to me on this issue and who will speak later on the matter touched on by the noble Baroness, Lady D'Souza. When we were having dinner that evening last May, there were many hours left for the amendment to be further considered in the Commons and for it to come back to us, but after a short while we were told that the Government were not going to contest the matter further.

It is then said that the Government made it plain that, although accepting the amendment, they would seek the first opportunity to remove it. I have to tell your Lordships—I shall not mince my words—that that is simply untrue. I need only refer your Lordships to what the Minister said in the other place on 7 May last year. She said that,

"between now and commencement we will prepare guidance ... explaining the operation of the new offences ... Of course there will be an opportunity—doubtless there will be frequent opportunities—to revisit the issue in due course if it is the will of this House or the other House to do so. On that basis, I would like to propose that we do not disagree with the Lords in their said amendment".—[Hansard, Commons, 7/5/08; col. 808.]

It is ludicrous to suggest that those carefully chosen words were an indication that the Government were going to remove the free speech safeguard in the very next Session without even waiting to see whether in practice it caused any difficulties for prosecutors.

I want to mention two other matters regarding Clause 61. Jack Straw asserted in the Commons that I had always made it plain that my purpose was to make a conviction for stirring up hatred on the grounds of sexual orientation more difficult. Of course, I have never said anything of the sort. What I have said often is that, while not out to weaken the protection that the Government say that they seek to give gays, I want what is outside the scope of the Bill to be made absolutely plain in order to avoid the scandals of the past and to protect freedom of expression. Not only have I said that, but Mr Straw's own notes on clauses say that the free speech clause does not raise the threshold for the offence or make prosecutions more difficult.

It has been suggested that any possible difficulties can be dealt with by guidance and that that is better than legislation. That, I suggest, is plain wrong. Guidance is not binding, so it can be ignored. Not only is a simple, short, pithy free speech clause more likely to be read than reams of guidance, but it is much more likely to be heeded. Furthermore, there is already guidance available in the shape of the 2007 CPS Guidance on Prosecuting Cases of Homophobic and Transphobic Crime, which, far from inspiring confidence, seems to make the case for the free speech clause. Somewhat surprisingly, the document says that homophobia does not necessarily mean hatred of gays but covers mere dislike of their practices. Basing their reasoning on the Stephen Lawrence definition of a racial incident, the authors go on to say that a homophobic incident is any incident perceived to be such,

"by the victim or any other person".

So there you have it. By that guidance, the police are as good as encouraged to investigate incidents that amount to no more than a member of the public complaining that someone else has had the temerity to criticise homosexual practices. Indeed, that is precisely what has been happening; it is what has caused outrage and precisely what gave birth to the free speech clause. It is what happened to the Roberts couple from Fleetwood; it is what happened to Lynette Burrows, who dared to question the desirability of gay adoption on the radio. There is a real danger that similar scandals will occur in the future, but it is a danger that the free speech clause can help to avoid.

I understand that new guidance is promised, but I would not like to be in the shoes of the person charged with drafting it. He would clearly be failing in his duty if he did not give a clear explanation of why there was a free speech clause in the religious hatred offence but no such clause in the sexual orientation offence and if he did not explain what weight should be attached to the right of free speech in one case rather than the other. It would have to be a work of some ingenuity and subtlety—beyond the grasp, I fear, of most of us. Frankly, I am amazed at the Government's sheer recklessness in being prepared to create such an anomaly in our law.

No decent person supports the stirring up of hatred, but no reasonable person should object to peaceful criticism and discussion of sexual behaviour. The law, as it stands with the free speech safeguard, makes the point with complete clarity. It is sad that the Government should be setting out to blur what is now clear and to remove a protection that events have already shown to be necessary.

They could not pick a worse time to behave in this way. There is, right now in this country, an intolerance of Christians of a sort that I never thought I would see. Street preachers are threatened and Christians expressing mainstream orthodox views on sexual behaviour are harassed and abused. A marriage registrar is bullied at work for asking to be excused from civil partnership duties; a housing charity worker is suspended for discussing with a colleague his beliefs about same-sex relationships.

I fear that, if the Government get their way, not only will this intolerance grow, and those bent on silencing all who disagree with them gain new strength, but many will take the revocation of the safeguard as a signal that voicing views on morality—even making jokes about homosexuality—could attract the attention of the police and that they would be wise to keep quiet. People will be reluctant to express their views, when the right to express views, including views that other people might not like, is one of the hallmarks of a free society.

I confess that I am not greatly concerned about what people may think of the Government. I do, however, fear what people will think of us if we supinely let the Government get their way on this matter.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat 4:36 pm, 18th May 2009

My Lords, one of the great concerns that I have—many people who are currently concerned about the crisis that faces the British Parliament are very much aware of it—is the difficulty that the flood of legislation we now have provides for those of us who are attempting to scrutinise in detail very complex and often very important pieces of legislation. The Bill that we have before us now is one that has the greatest repercussions for civil liberties, for freedom of speech, for issues concerning the rights of prisoners, and for issues concerning the rights of those who live here as asylum seekers or are in other ways detained in this country.

It is very difficult, in a situation where, at Second Reading, there is precisely one minute for every 20 clauses of the Bill, actually to deal with it in the way that Parliament should. I begin by saying that I do hope the Government's managers will think very carefully about the current organisation of legislation, which means that we can spend hours and hours and hours on the Marine and Coastal Access Bill and only a limited amount of time on one of the most important Bills to be put before this Parliament.

Having said that, I will use my eight minutes as best I can. I will refer very quickly to the two particularly controversial issues that have come up in the half an hour or so that Back-Benchers have had to discuss the Bill. First, on the question of article 61 and the freedom of speech, I think that the noble Lord, Lord Waddington, has made a powerful case and I accept the balanced approach that has been made by the right reverend Prelate the Bishop of Southwell and Nottingham. One needs to have a balance between the instigation of hatred— which I hope that very few of us, if any of us in this House, would ever support, certainly against people whose sexual orientation is for some reason not that of the mainstream—and, on the other hand, a shrinkage of the concept of what freedom of speech is all about. This is deeply disturbing, whatever our politics may be, and it is the duty of this House in particular, given its long constitutional obligations, to ensure that freedom of speech is maintained when it means only no more than creating some offence to somebody, as distinct from arousing attitudes of hatred or persecution towards them. It is a difficult balance. It is one that I fear we may be getting quite badly wrong.

Secondly, I refer to another controversial issue that has come up—that of assisted suicide. I remind the House of a commitment by the Minister of Justice in the other place:

"We therefore intend to legislate to update the Suicide Act".—[Hansard, 17/9/08; col. 142WS.]

She went on to say that the entire Act needed to be looked at again in the light of new information, concerns and legal judgments. That was a crucial pledge—that the other House should look in detail at the whole issue of suicide and assisted suicide. I say with great respect to the noble Lord, Lord Bach—given the time limitations, he introduced the Bill as thoroughly as he could—that it is not enough to say that this should be left to a Private Member's Bill. The Government should stick by the Minister's commitment given in 2008—that this is a matter that the lower House should consider in detail, because it is too important to be left in abeyance and in a state of uncertainty.

Thirdly, I strongly support the arguments put forward by the noble Baroness, Lady D'Souza—eloquently supported by the former Lord Chancellor, the noble and learned Lord, Lord Falconer of Thoroton—regarding the absolute necessity of introducing legislation to ensure that those who are accused of genocide can be prosecuted here if they cannot be returned to their own country for fear that they would not get a fair trial. We prosecute torturers on exactly the same grounds. There is no argument for prosecuting torturers who cannot be extradited for the reasons given in the House of Lords judgment of February 2009 when we cannot prosecute those guilty of genocide.

I add a further factor to the case argued so effectively by the noble Baroness, Lady D'Souza, and the noble and learned Lord, Lord Falconer; namely, that it is inherent in the crime of genocide to seek delay. A UN-assisted trial is taking place of a major torturer who was principally responsible for the deaths of 1.7 million people in Cambodia 30 years ago. His name is not easy for me to pronounce but for those who wish to pursue the matter he is a Khmer Rouge leader, Kaing Guek Eav, known as "Duch". He is before the international tribunal for what was done in Cambodia 30 years ago. That is still possibly the worst genocide since the Holocaust. It has been in his interest—I was in Cambodia last year and saw this for myself—literally to bury the evidence as far as possible so that this terrible man could not be brought before an international tribunal.

We are still seeing the digging up of mass burial places in Bosnia-Herzegovina, as was indicated by my noble friend Lord Ashdown in his recent book. Many people were mutilated before being killed during the wars of the former Yugoslavia. Those cases have not yet come before the tribunal. As the noble and learned Lord, Lord Falconer, pointed out, cases are even now emerging of genocide in other parts of the world, of which the most recent examples occurred in Bosnia-Herzegovina and not least in Rwanda, as he pointed out. We must change the law in this respect and the Bill is a vehicle that enables us to do it.

I have two final points. One concerns the crucial importance of coroners being seen to be independent. As the noble Lord, Lord Bach, pointed out, the Bill contains detailed provisions to try to ensure that independence in order to satisfy the bereaved relatives of the victims of crime, and to satisfy public opinion. In that context, is it sensible for the medical experts, who are often a significant part of this process, to be drawn from the same primary care trust as those involved in the cases? Should we not consider whether the doctors and medically qualified people who are essential to the independent process of a coroner's case should be drawn from a different primary care trust from those involved in the case itself? I raised this—I cannot go into great detail for obvious reasons—in the case of the Mid Staffordshire Hospital, which is deeply concerning. It was a case where a cluster of offences did not clearly emerge, partly because those responsible were all involved in the PCT that was directly under consideration and examination.

Last of all, I want to mention—because it has not been mentioned yet and it is important—a ruling made by the European Court of Human Rights, as long ago as 2004, rejecting the blanket ban in Britain against anybody who is a sentenced prisoner having the right to vote. The periods are ludicrously long, up to 10 years for people who are minor offenders. In being so, they destroy the civic responsibilities of those who are in jail.

I conclude, on eight minutes, by saying that I very much hope that the Government move forward on what is a judgment of the European Court, dating back to 2004, with still no single act being taken to meet that judgment. A blanket ban is not acceptable and is discouraging of the rehabilitation of offenders. We should look at this again and move rapidly in line with that decision of the European Court, of which we are, after all, respectable signatory partners.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench 4:46 pm, 18th May 2009

My Lords, reform of the coroners' system is long overdue. I will concentrate my remarks on the first part of the Bill. There is a need for consistency and transparency in the system and for the bereaved to be better considered. I fear that the Bill does not go far enough.

Like the noble Baroness, Lady Williams, who has just spoken, I have concerns over medical examiners. They will be working in parallel to and with coroners. They need to be of equal status and be able to stand apart from their other local medical colleagues to avoid conflicts of interests arising. If the medical examiner is paid by, overseen by and potentially disciplined by the primary care trust or local health board, how can he or she be truly independent? What if a colleague or even a partner of the medical examiner, if they are a GP, is before the coroner and subject to scrutiny and investigation? What if there are systematic failures in the PCT or LHB that actually employs that medical examiner?

The medical examiner needs clear blue water between him and those potentially under scrutiny. Otherwise, the bereaved will fear conflict of interest and will not feel that justice has been done. Being linked with the local clinical governance system does not determine the employer. It would be much safer for the medical examiner to be appointed and managed by the Ministry of Justice and also for there to be a chief medical examiner to work along side the Chief Coroner.

I turn now to the external scrutiny aspect of the coroner process. There has been emphasis during consultation on the role of the press in external scrutiny while valuable independent rigorous research has been ignored. Indeed, it has actually been hindered and blocked. Recently, a research project about suicide amongst vets, which had been well approved and had a local research ethics committee, consulted the Coroners' Society out of politeness, which then took delaying action that blocked the study. Yet properly conducted research will provide both important insights into, and scrutiny of, what is happening in premature deaths.

Nowhere has that been more needed recently than in the spate of young deaths in Bridgend. Madeleine Moon, the local MP, has to be commended. She has worked with great sensitivity to bring many lessons to light. We saw social contagion in action. It was seen previously in suicides in Oxbridge. We are still seeing social contagion in Bridgend. It is now beginning to appear with other suicides, such as the woman who killed herself after seeing Anne Turner's suicide portrayed on TV and the young man with early lung cancer who said in a radio interview that he had never thought of suicide until hearing an interview with Nietzsche.

In Bridgend, a general atmosphere of hopelessness pervaded—I saw it first hand in the staff who lived there. A sense emerged among many young people that suicide was the thing to do when not coping. Internet sites provide information on how to kill yourself. Some are worse than that. They indulge in entrapment and active encouragement and promotion of suicide. Some responsible websites are moderated—they have pop-ups from the Samaritans—but others are dangerous. They are already illegal in Australia, and the Byron report recommended that we do the same. The Government are to be commended on picking up those recommendations.

Policing such websites is terribly hard, but it can be done. From 1997 to 2008, the Internet Watch Foundation achieved a 17 per cent fall in child pornography sites through monitoring. I am glad that the Government have included in the Bill provisions on pseudo-photography of children. That inclusion is essential for this work, as some really disturbing images are emerging, particularly out of Japan.

Inquests into tragic events, wherever they are, need to be conducted near people's homes, so that distressed families do not have to travel. That is to be welcomed. The family must be in control of what is supplied to the media. The Bill and the Explanatory Notes do not go far enough. The press intrusion in Bridgend was terrible. Families described having to fight their way past reporters to get into the coroner's court, being pressurised for quotes, and then misquoted, with school friends being bribed for information and photos of the deceased. Sometimes the first time that the bereaved family had ever seen a photograph was when it appeared in the local paper.

The Press Complaints Commission code of conduct has been in place since 2008, but it was only after the events that I referred to that the editors' code was tightened, indeed to good effect. The press cannot now disclose the method. This has improved the situation. The press have not reported on subsequent suicides, of which more than 80 per cent are linked, which further demonstrates the effect of social contagion. A complaint against the Reading Chronicle was recently upheld, which was a welcome decision.

The public interest was not served by gratuitous details, even though they might have sold papers. The bereaved need privacy. Issues around reporting were considered in 2007 by the Family Division. The court upheld that coroners' inquests are court proceedings. Section 39 of the Children and Young Persons Act 1933 safeguards children and, if it were properly interpreted, would give children privacy in death, as well providing privacy for those appearing as witnesses.

Why is privacy important? It is because other children have to cope with questions back at school and in the community, and the inquest may occur some time after the death. The inquest lays bare raw wounds that a family have begun to live with, abruptly taking them back in their grieving. For some, the inquest does not herald the closure that they hope for. If afforded privacy, the family can go to the press if they want to; and many do because they want to expose dangers, such as those of carbon monoxide poisoning. However, they need to be afforded some control in their grief.

In the 10 years up to 2008, more than 37,000 deaths were recorded as suicides in England and Wales, and more than 27,000 with an open verdict. Compare that to the figure of 100 quoted earlier as regards people who have gone to Switzerland. Many of the deaths recorded as open verdicts were actually suicides, but some coroners seem to avoid the term "suicide", perhaps because of stigmatisation; but without consistent reporting, we will never get a true picture. It is essential that deaths are classified, using the World Health Organisation's international classification codes to provide consistency in verdicts. Deaths can then be centrally collated by the Chief Coroner's office to reveal trends and clusters of any type—not just suicides—where there is a problem. Any cluster of deaths could then be identified early. Independent research must be encouraged, to provide scrutiny and detect inconsistency.

I welcome the Minister's opening statements about assisted suicide, and I agree that we should not use this Bill as a Trojan horse to try to revisit the issues that were looked at during three of the Bills of the noble Lord, Lord Joffe. I should simply and respectfully correct the noble and learned Lord, Lord Falconer of Thoroton, in that the unit called Dignitas is not a clinic; it has no therapeutic intervention whatever; it is, quite simply, a suicide service, probably for commercial gain. How do you actually provide immunity for those travelling abroad? How do you detect coercion—subtle coercion—whether internal or external? I will not discuss safeguards further, but I am sure that we will revisit those matters.

In the mean time, I simply welcome the Minister's statement and I welcome this reform of the coroner system. Some responsible websites are moderated—they have pop-ups from the Samaritans—but others are dangerous. They are already illegal in Australia, and the Byron report recommended that we do the same. The Government are to be commended on picking up those recommendations.

Policing such websites is terribly hard, but it can be done. From 1997 to 2008, the Internet Watch Foundation achieved a 17 per cent fall in child pornography sites through monitoring. I am glad that the Government have included in the Bill provisions on pseudo-photography of children. That inclusion is essential for this work, as some really disturbing images are emerging, particularly out of Japan.

Inquests into tragic events, wherever they are, need to be conducted near people's homes, so that distressed families do not have to travel. That is to be welcomed. The family must be in control of what is supplied to the media. The Bill and the Explanatory Notes do not go far enough. The press intrusion in Bridgend was terrible. Families describe having to fight their way past reporters to get into the coroner's court, being pressurised for quotes, and then misquoted, with school friends being bribed for information and photos of the deceased. Sometimes the first time that the bereaved family had ever seen a photograph was when it appeared in the local paper.

The press complaints code of conduct has been in place since 2008, but it was only after the events that I referred to that the editors' code was tightened, indeed to good effect. The press cannot now disclose the method. This has improved the situation. The press has not reported on subsequent suicides, of which more than 80 per cent are linked, which further demonstrates the effect of social contagion. A complaint against the Reading Chronicle was recently upheld, which was a welcome decision.

The public interest was not served by gratuitous details, even though they might have sold papers. The bereaved need privacy. Issues around reporting were considered in 2007 by the Family Division. The court upheld that coroners' inquests are court proceedings. The Children and Young Persons Act 1933 in Section 39 safeguards children and, if it were properly interpreted, would give children privacy in death, as well providing privacy for those appearing as witnesses.

Why is privacy important? It is because other children have to cope with questions back at school and in the community, and the inquest may occur some time after the death. The inquest lays bare raw wounds that a family have begun to live with, abruptly taking them back in their grieving. For some, the inquest does not herald the closure that they hope for. If afforded privacy, the family can go to the press if they want to; and many do because they want to expose dangers, such as those of carbon monoxide poisoning. However, they need to be afforded some control in their grief.

In the 10 years up to 2008, more than 37,000 deaths were recorded as suicides in England and Wales, and more than 27,000 with an open verdict. Compare that to the figure of 100 quoted earlier as regards people who have gone to Switzerland. Many of the deaths recorded as open verdicts were actually suicides, but some coroners seem to avoid the term "suicide", perhaps because of stigmatisation; but without consistent reporting, we will never get a true picture. It is essential that deaths are classified, using the World Health Organisation's international classification codes to provided consistency in verdicts. Deaths can then be centrally collated by the Chief Coroner's office to reveal trends and clusters of any type—not just suicides—where there is a problem. Any cluster of deaths could then be identified early. Independent research must be encouraged, to provide scrutiny and detect inconsistency.

I welcome the Minister's opening statements about assisted suicide, and I agree that we should not use this Bill as a Trojan horse to try to revisit the issues that were looked at during three of the Bills of the noble Lord, Lord Joffe. I should simply and respectfully correct the noble and learned Lord, Lord Falconer of Thoroton, in that the unit called Dignitas is not a clinic; it has no therapeutic intervention whatever; it is, quite simply, a suicide service, probably for commercial gain. How do you actually provide immunity for those travelling abroad? How do you detect coercion—subtle coercion—whether internal or external? I will not discuss safeguards further, but I am sure that we will revisit those matters.

In the mean time, I simply welcome the Minister's statement and I welcome this reform of the coroners' system.

Photo of Lord Pannick Lord Pannick Crossbench 4:54 pm, 18th May 2009

My Lords, as the Minister mentioned, the Secretary of State for Justice made a Written Statement in the other place last Friday. He explained that the Government will table an amendment to remove Clause 11 and its associated Clause 12. One does not want to kick a clause when it is down, but the sorry saga of Clause 11, with its power for the Secretary of State to dispense with a jury in an inquest, deserves to be noted in the hope that the Government and their successors may learn some lessons as to how not to proceed when making legislative proposals in relation to the judicial process. I am also concerned that the Government still do not understand the issues raised by Clause 11.

Clause 7 rightly maintains the principle that inquests into particular categories of death should be heard before a jury. That is in order to maintain public confidence in the exercise of state power; for example, if there is reason to suspect that the deceased died in custody or otherwise in state detention, or as a result of an act or omission of a police officer. Your Lordships will recall that in 2008, the Counter-Terrorism Bill contained provisions allowing Ministers to dispense with juries where sensitive information was involved. Those proposals were introduced without prior consultation. Your Lordships' Constitution Committee, under the chairmanship of the noble Lord, Lord Goodlad, issued a report criticising the proposals as "constitutionally inappropriate", because Ministers would be given the power to decide how an inquest should be conducted rather than needing to apply to a judge to exclude a jury.

The parliamentary Joint Committee on Human Rights then criticised the Secretary of State's failure to explain how the proposals could be consistent with Article 2 of the European Convention on Human Rights on the right to life. The Government withdrew the proposals, but then this Bill was introduced containing very similar provisions. Again, there was no prior consultation. The Joint Committee on Human Rights repeated its concerns, and concluded that there was no need for the provisions. The proposals generally received a hostile response.

In the light of the criticism, the Secretary of State then tabled amendments to Clause 11 on Report in the other place. Those amendments were inadequate to deal with fundamental defects in Clause 11, as explained fully in the briefing by the organisations Inquest, Liberty and Justice. Any noble Lord who has read that briefing will be puzzled indeed that the Secretary of State still suggested, as he clung to the wreckage of Clause 11 last Friday, that the clause,

"struck a fair and proportionate balance",—[Hansard, Commons, 15/5/09; col. 68WS.]

between competing interests.

When he replies to this debate, will the Minister please assure the House that the Government will learn from an episode that should cause them deep embarrassment? They need to consult before they come forward with legislative proposals on sensitive issues relating to the judicial process, and they need to listen more carefully to what other people say in order that their legislative proposals are coherent and principled.

I remain concerned that although, belatedly, Ministers have now conceded defeat on Clause 11, the Government still do not understand the issues raised by that clause and by the opposition to it. As the Minister told us this afternoon, the Government now say that they will consider establishing in exceptional cases an inquiry under the Inquiries Act 2005 to ascertain the circumstances of a death where evidence cannot or should not be disclosed to a jury. However, those exceptional cases are precisely the ones where the maintenance of public confidence will most require that the evidence is heard by a jury.

The recent inquest into the death of Mr de Menezes, the Brazilian citizen tragically shot by police officers at Stockwell station because of mistaken identity, involved the consideration of highly sensitive evidence concerning the Metropolitan Police's policies for addressing the threat posed by suicide bombers. A High Court judge sat as the coroner in that inquest with a jury. To the extent necessary, the coroner made a number of rulings restricting the disclosure of sensitive documents and information through the use of public interest immunity certificates, witness anonymity orders and the exclusion of the public, where appropriate.

If such measures sufficed in the de Menezes case, why is it necessary, I ask the Minister, to dispense with a jury in any other inquest? If and to the extent that the legal problem is that the Regulation of Investigatory Powers Act 2000 prohibits the disclosure of intercept evidence to a coroners' jury, then the solution is to adopt something similar to Clause 12 of the Bill, no longer being pursued, and that is to allow a High Court judge sitting as a coroner to authorise such disclosure to a coroners' jury where necessary to ensure a fair inquest.

Photo of Baroness Jay of Paddington Baroness Jay of Paddington Labour 5:02 pm, 18th May 2009

My Lords, I have listened with care to those Members of the House who have spoken critically about the size and wide-ranging nature of this large Bill. Personally, however, I congratulate the Government and welcome their intentions of trying to improve the clarity and fairness of some aspects of the legal system when they touch people's lives, when they are often at their most vulnerable. It is worth saying in this debate, which is led by a number of very distinguished members of the legal profession, that however humane and sympathetic their individual intentions, they represent a system that—if you are a bereaved family, a person confused by the complexities of the legal aid system, or indeed an intimidated witness—can be very daunting.

From a lay perspective, many aspects of the Bill seem consistent in their attempts to change laws as far as the general populace is concerned. I particularly welcome, for example, the improved services for bereaved families mentioned in Part 1. However, I should like to focus my contribution on Part 2, on criminal offences. Again, there is much in this part to commend the Bill. I particularly welcome the change to the laws on infanticide and those on provocation, and I say to the noble Lord, Lord Thomas of Gresford, that I am certainly not speaking to a feminist agenda. I have some concerns about changes to the partial defence which falls under the issue of diminished responsibility. This is in a particular area, as it has sometimes been pleaded successfully by those charged with so-called mercy killing. I am sure that we will turn to the detail when we consider those parts of the Bill in Committee, but it is important to note that although it is sometimes said that people charged with mercy killing rarely reach the courts and certainly never go to prison, I was disturbed to read just this weekend of another 80 year-old gentleman arrested on suspicion of murdering his wife, who was suffering from advanced Parkinson's disease. That sort of person might well have pleaded diminished responsibility under the previous arrangements, but might find it difficult now.

My main concerns are about Clauses 49 to 51, on encouraging or assisting suicide. As the Minister reminded us at the beginning of the debate, we have had several opportunities to discuss the principles and details of some proposals in that area in recent years in your Lordships' House. I remain strongly in favour of a change to the law that would enable mentally competent but terminally ill adults to commit assisted suicide. However, I am also of the opinion—as expressed eloquently by my noble and learned friend Lord Falconer—that the Minister is right to say that this is not the Bill in which to attempt a wide-scale reform of that law.

None the less, the Bill refers to modernising some aspects of the law that relate to helping people who wish to end their lives. I agree with the noble Baroness, Lady Finlay of Llandaff, that it is important that the Bill will now include issues relating to the potentially pernicious influence of the internet. I heard with great concern what she said about the continuing situation in south Wales, where vulnerable young people have been unduly influenced in that way.

However, I think that the Government have missed an opportunity and an important chance to update the law on assisting suicide in another important area—the one to which my noble and learned friend Lord Falconer referred. I, too, am strongly of the view that we should use the Bill to lift the threat of criminal prosecution from people who, with the best of intentions, accompany loved ones who are terminally ill abroad so that they can get help to die in countries where assisted suicide is legal. My noble and learned friend Lord Falconer has expressed the case for that in very strong legal terms. Perhaps I can now put a more personal case to do it from the point of view of some people who have struggled with and been concerned about that question themselves.

For many people who have travelled abroad in those circumstances, the extraordinarily difficult decision to confront their terminal illness and end their lives has been compounded by intense concern about the possible consequences for people who may accompany them to jurisdictions where that is legal. For that reason, some have gone on that very sad last journey alone. For example, Dorothy Robbins, who suffered from motor neurone disease, was very fearful for her family. She did not want her husband to risk prosecution, so he stayed at home when she went to Switzerland by herself. After her death, Mr Robbins said:

"The crime wasn't about flying out of the country to die. The crime was not being able to go out with her and hold her hand".

Recently, noble Lords may have read reports in the newspapers about a couple called Penelope and Peter Duff who were both terminally ill and went to Switzerland together a few months ago. They supported each other without any other family member being present, but afterwards, their daughter, while saying that her parents had done a beautiful and remarkable thing, still openly feared the possibility of legal consequences.

My noble and learned friend Lord Falconer has already referred to the case of Debbie Purdy, who has progressive multiple sclerosis and wants to end her life when she finds her condition intolerable. She has pursued her personal quest to achieve legal clarity for her husband through the courts. She feels that, apart from her husband's emotional support, she would need her husband to take her to Switzerland when the time comes as she is physically unable to travel alone. In February, her plea for clarification was turned down by the Appeal Court. Nevertheless, she thought that the judges had been sympathetic and, in her words,

"did everything they could to clarify that Omar"— her husband—

"would be unlikely to be prosecuted if he were to accompany me abroad for an assisted death".

The truth, as the noble and learned Lord, Lord Falconer, emphasised, is that although returning relations are often questioned by the police, to date there have been no prosecutions. In other words, the law as it stands is a fudge, and under this Bill will remain a fudge. Accompanying a loved one abroad to die is an offence but, in practice, will not be prosecuted. It is not surprising that senior lawyers are now questioning this position and asking Parliament to act. I quote the noble and learned Lord, Lord Bingham, who said on the radio last week, when asked whether this was unsatisfactory:

"I don't think this is a legal judgement, I think it's a political one. But I think we are approaching a point at which the law does not match the expectations of reasonable people ... we're approaching the point at which the law does need overhauling".

In conclusion, I re-emphasise that the Bill misses the opportunity to lift that fog of confusion and anxiety which surrounds a growing practice of British citizens getting assisted suicide in another country. The lack of clarity simply creates a series of paradoxes. No clear signal is sent as to who should be prosecuted and, consequently, as to who should be able to travel abroad. Obviously, Parliament is unable to regulate foreign assisted-dying institutions, but by building on the Government's proposals in this Bill—modernising the Suicide Act, as it has been described—we could clarify the law to prevent the needless threat of prosecutions on one hand and better protect vulnerable people on another.

I shall refer to the procedures of another place. Noble Lords will be aware that an amendment to this effect was promoted by my right honourable friend Patricia Hewitt, the ex-Secretary of State for Health. As various noble Lords have pointed out, these clauses in the Bill were not reached. I very much hope that we shall be able to discuss similar amendments in your Lordships' House and, very appropriately, give them the scrutiny that they deserve. I ask my noble friend on the Front Bench one more question. The noble Lord, Lord Kingsland, has already referred to this being a matter of conscience. I hope that, if amendments of this nature are proposed, we on the government Benches will be allowed a free vote.

Photo of Lord Patel Lord Patel Crossbench 5:12 pm, 18th May 2009

My Lords, this is a very important Bill, which touches on a wide range of issues relevant to medicine. I shall mention some briefly. There are difficulties, particularly for those who practise psychiatry. My noble friend Lady Murphy could not take part in today's debate. I am pleased to speak on her behalf as an honorary psychiatrist and will support her in Committee.

First, the new system of accountability and the office of the Chief Coroner are very welcome and long overdue. Coroners have not always been keen to take up the benefits of the extensive training programmes that are now expected of the judicial classes, leaving some of them way behind in medical and legal knowledge and public expectations. The new system will, in time, cure that and create a better career structure for coroners. Other parts of the Bill are more worrying. One area of difficulty is the new rules on the partial defence of diminished responsibility. The problem of inquests on detained mental health patients is another. There is always an inherent mismatch between the methods of inquiry of law and medicine, which has led to some rather unseemly wrangling in court. Reform of the law should be directed at minimising the use of expert psychiatric evidence to determine a verdict, and at using expert opinion at the sentencing stage.

The key problem here is the Government's failure to accept the Law Commission's recommendations to introduce two levels of homicide—tiers of murder—which, at a stroke, would have given the judiciary, rather than the Executive, the powers to sentence those who, at present, are all given a mandatory life sentence. Thus we will be stuck with highly unsatisfactory partial defences, such as diminished responsibility for murder only, but not for cases where the victim does not die. In those cases of attempted murder, a defendant can plead only the highly unsatisfactory "insanity", but not the more flexible "diminished responsibility".

The phrase,

"an abnormality of mental functioning", is an improvement on the current concept of an abnormality of mind, as it emphasises mental processes rather than a static condition. The new inclusion of the idea that the abnormality arose from a recognised medical condition is welcome, as it ensures that the defence must conform to accepted psychiatric diagnostic criteria and avoid the idiosyncratic diagnosis offered by some experts. There is however, concern that the word "medical" might rule out psychological evidence and conditions, but we will need to explore this more in Committee.

The introduction of the notion of relative incapacity is consistent with civil law, for example as expressed in the Mental Capacity Act. In some ways, however, the description of the impairment that must be demonstrated harks back to the restrictiveness of the early 19th century and the so-called M'Naghten rules, which were highly dependent on the defendant's intellectual grasp of the nature of the act and which largely ignore the power of delusions and emotions on behaviour. We will need to explore further in Committee what impact this narrowing of the defence will mean. It could mean that more mentally disturbed perpetrators of homicide end up with a prison, rather than a hospital, disposal: surely not what is intended. A defendant with severe schizophrenia might quite determinedly kill and with full self-control but on the basis of psychotic thinking. Such psychotic thinking could easily fall short of satisfying the criteria in Clause 44(1)(a) or (b). Thus a severely mentally ill man would be denied any psychiatric defence.

It has been said that infanticide is a distinctive kind of human tragedy. Indeed it is, and it is one that has always generated enormous sympathy and understanding, but it is not so very different from other homicides in which health and mental health are involved. It seems extraordinary that the Bill proposes to retain this Victorian offence; it should surely be abolished. Cases that would otherwise come under that offence should be dealt with through the diminished responsibility provisions. The Butler committee recommended as much in 1975. If the killing was committed in the context of an abnormality of mind, it is covered by diminished responsibility. If it was not, a pseudo-psychiatric defence is not appropriate.

Another problem is that the Bill withdraws the requirement for inquests into deaths in custody to be heard automatically before a jury. The noble Baroness, Lady Murphy, has extensive experience of inquiry panels into the deaths of detained patients in special hospitals for mentally disordered offenders and in NHS mental health units, and she will be greatly concerned about this part of the Bill. Again, I believe that there will be amendments to explore this further in Committee.

The Bill provides that deaths in custody and detention will be heard before juries only if one of a limited set of circumstances is satisfied. This is not sufficient to ensure that such deaths are fully and independently investigated or to give the public the confidence that justice is being done. Deaths that occur in state detention are often complex and may require the detailed scrutiny of systems and procedures as well as of individual acts, and these cases are always best dealt with by juries.

Clauses 49 and 50 deal with suicide. I welcome the Government's efforts better to protect young and vulnerable people who may be encouraged by others to commit suicide. However, as other noble Lords, including the noble Baroness, Lady Jay, have stated, the Government's reforms fail to address a wider problem with the law; it fails to distinguish between those who maliciously encourage suicide and those who compassionately assist the death of a terminally ill adult who is suffering but mentally competent. I look forward to debates on this issue in Committee.

I turn briefly to one or two other areas that relate to medicine and medical research issues. I welcome the proposal for greater involvement of bereaved families and hope that the reforms will improve the processes for healthcare professionals and others who greatly contribute to the investigation. I support Clause 18, which would make it a statutory duty for doctors to report certain deaths. Clause 19, which creates a new role of medical examiners, is welcome. Like other noble Lords, however, I would like to see greater details about the skill, training, experience and other eligibility criteria for the appointment of a medical examiner and the nature of the independence and accountability of a medical examiner. Clause 20, which makes provisions for regulations about preparatory scrutiny and confirmation of medical certificates of causes of death, is welcome and may lead to fewer deaths requiring coroners post-mortem.

There is, however, concern about the difficulty in integrating coroners' post-mortems into research protocols. For some research areas—for example, sudden adult death—the need for tissue samples obtained at post-mortem for diagnosis and research will have to be discussed with relatives at a time that is sensitive for them. The ability in such circumstances for coroners to retain material for a post-mortem examination for a limited period to allow for appropriate discussions by potential research studies with families is important. Examples are the recent brain bank networks established by the Medical Research Council and others for storage of brain tissue for diagnosis and research. I hope that coroners' offices do not impede such research.

Finally, I welcome the Government's decision to withdraw the information-sharing order-making power from the Bill. However, if they are planning a fresh public consultation in relation to information sharing, I hope that they will listen carefully to the medical and biomedical research communities and others so that any new proposals do not impede medical research, while preventing inappropriate use and disclosure of sensitive information.

Photo of Lord Goodlad Lord Goodlad Conservative 5:21 pm, 18th May 2009

My Lords, like the noble Lord, Lord Patel, I view the Bill with great gravity. My late father, who was a psychiatrist, was also a deputy coroner in Lincoln many years ago, and some of the issues before us were, even then, a subject of family discussion.

Your Lordships' Select Committee on the Constitution, as mentioned by the noble Lord, Lord Pannick, issued a report on the Bill last Thursday, 14 May, and I should like to mention three points. First, the committee expressed the view that the ability of Parliament to examine the many provisions of the Bill risks being made less effective by the inclusion in a single Bill of so many issues. I acknowledge the political realities animating the support of the noble and learned Lord, Lord Falconer, for so-called Christmas tree Bills. This Bill, however,

"makes provision for: reform of homicide; possession of pornography and other offences; a framework for witness anonymity and protection in investigations and trials; a new institutional framework for sentencing; reform of legal aid; and new controls on proceeds from the sale of criminal memoires".

Your Lordships' committee took the view that the,

"constitutionally important process of legislative scrutiny is hindered by omnibus bills, such as this one, which include too wide a range of proposals, all inherently significant in their own right".

Secondly, it says:

"Clause 11 of the bill makes provision for inquests without juries where the national interest would seem to preclude public examination of all the circumstances surrounding a death".

Your Lordships' committee recommended that it should be clear on the face of the Bill that a High Court judge, when faced with a certificate, is not merely to accept a ministerial assertion that the national interest is at stake but that the Secretary of State should be expected to demonstrate to the satisfaction of the judge that such a national interest does in fact exist. I am most grateful to the noble Lord, Lord Bach, for his correspondence, and I welcome the Government's decision to table amendments to the Bill, withdrawing provisions in respect of certified coroners' investigations by removing Clauses 11 and 12.

Thirdly, Part 8,

"deals with proposed amendments to the Data Protection Act 1998 ... Clause 156 amends the DPA to give the Information Commissioner powers to carry out an assessment to determine whether a public body complies with the data protection principles. There is a list of excluded bodies ... The clause allows the Commissioner to enter premises to inspect documents and other material, and to view the data processing activities. These new powers have been welcomed by the Information Commissioner, but they stop short of those called for by both his office and by", your Lordships' committee in the,

"recent report Surveillance: Citizens and the State in that they do not provide for comparable powers to inspect the activities of private-sector data controllers".

Your Lordships' committee welcomed,

"the Government's decision to provide a statutory basis for the Information Commissioner to carry out inspections without consent of public sector organisations which process personal information systems, but regret the decision not to legislate for a comparable power with respect to private sector organisations".

The committee recommended that the Government reconsider the matter and stated:

"Organisations which refuse to allow the Commissioner to carry out inspections are likely to be those with something to hide ... the protection of citizens' data may in the absence of legislation be vitiated", in the light of,

"the growing exchange of personal data between the public and private sectors".

The report says that it is disappointing,

"that the Government have not taken this opportunity to provide the Information Commissioner with powers to assess whether private sector organisations are complying with data protection principles".

The committee said that,

"clause 156 does not provide procedures for sanctions in case of non-compliance with an Assessment Notice".

It added:

"The failure to provide any sanctions for non-compliance by public sector bodies with Assessment Notices calls into question the efficacy of the power that is created".

I hope that your Lordships' House will return to this point during later consideration of the Bill.

The committee said that,

"the Government's decision to withdraw the very broad powers on data sharing between departments that had initially been included in the bill", is welcome, and that,

"the principle of minimisation of data-sharing as expressed in paragraphs 274-5", of the report of your Lordships' committee, Surveillance: Citizens and the State, which I hope will be debated soon, is of considerable importance.

I know that the noble Lord, Lord Bach, will address the issues raised in this debate, including, I hope, those on which I have touched, with his invariable wisdom.

Photo of Lord Imbert Lord Imbert Crossbench 5:27 pm, 18th May 2009

My Lords, I realise that I am but one of the 43 Members of your Lordships' House who have indicated their wish to speak on the Coroners and Justice Bill. No doubt, noble Lords will be relieved to know that I do not intend to speak for the allotted eight minutes, but I hope that my few remarks about this catch-all Bill may carry some weight despite their brevity. I shall not touch on some of the more controversial parts of the Bill, which have been or will be adequately covered by other noble Lords, and I shall reserve my judgment about those important sections until the next stage.

However, if these measures are intended to reform the coroners' system as a whole in this country, why do we not bite the bullet and make it a centrally funded national coroners' service that is overseen by the Lord Chancellor through the Ministry of Justice? That would thereby give power, as well as formal and adequate support, to the new Chief Coroner and subsequently give help and support to bereaved families. If this is not done, I can already hear the arguments regarding the adequacy by the "relevant authority", whomsoever that might be, which, according to Clause 24,

"must secure the provision of whatever officers and other staff are needed by the coroners ... to carry out their", duty. It adds that the,

"relevant authority ... must maintain, or secure the maintenance of, accommodation".

My final two short and practical points relate to the requirement that a senior coroner needs authority from the Chief Coroner before he can carry out searches and the fact that, throughout the whole Bill, there seems to be no mention whatever of that most important person in the coroners' system, the coroner's officer. He or she is the person whom the coroner would ask, "Make sure you get the suicide note or the pills". Alternatively, to use a hypothetical example of what happens at present, where perhaps an unusual number of deaths have occurred in a nursing home or hospital, and when time is of the essence, the coroner might wish to send his officer post-haste to obtain the hospital operations notes, or copies of them or other material relating to the deceased persons.

The nearest coroner to your Lordships' House is the coroner for Westminster, a man of 30 years' experience, who is both a medical doctor and a barrister. He has in his time conducted an incredible 12,000 inquests, including those covering the Iranian embassy siege, the "Marchioness" disaster and 10 fatal bombing incidents. Must he and those other equally experienced coroners waste vital time in the future seeking authority from the Chief Coroner for a search, rather than immediately sending the coroner's officer to gather evidence—dare I say it—before it is destroyed or mishandled?

In the Metropolitan Police area, which of course includes the City of Westminster, the coroner's officer would be a police officer or member of police staff provided from the commissioner's budget. However, the office in which he works, the paper on which he writes his reports and the chair on which he sits are provided by Westminster City Council. Similarly, in Surrey, the chief constable provides the coroner's officer from the budget for his agreed establishment of officers and staff, but the premises and all equipment used by the coroner and his staff are paid for by the county council as the relevant authority. There seem to be different and piecemeal systems throughout the 100 or so coroner areas in England. Should not the requirement to provide staff and accommodation be formalised nationally, be dealt with through the Ministry of Justice and centrally funded, as the noble Lord, Lord Thomas of Gresford, suggested?

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 5:33 pm, 18th May 2009

My Lords, this Bill rightly reopens the debate of what to do about inquests that involve particularly sensitive information. We last debated this in your Lordships' House under the Counter-Terrorism Bill last year. At that time, we certainly did not feel that the Government's proposals were acceptable. Indeed, today, the noble Lord, Lord Pannick, has spent some time accurately kicking the clause when it was down, as he described it. There is certainly still a problem with the Government's new proposals.

The Ministerial Statement last week commended the use of the Inquiries Act 2005 and talked of using a special,

"procedure only in very exceptional and rare circumstances".—[Hansard, Commons, 15/5/09;col. 68WS.]

During the passage of this Bill, this House will have to debate exactly what the circumstances will be that need especial scrutiny.

The Inquiries Act 2005 is one answer that the Government have come up with, but that is likely to be deficient in a similar way as was found under the Counter-Terrorism Bill for coroners; the panel will have the same problem in that it is not authorised under the Regulation of Investigatory Powers Act 2000 to receive intercept evidence. The Government will need to address that, as they intend to for coroners.

What this House should not accept is a system that allows the Government to hold secret inquests, or juryless inquests in those cases outlined under Clause 7, for any reason that is not absolutely accepted by this House. It was far from clear when we debated the Counter-Terrorism Bill that there would be any case where that would be justified. There might need to be safeguards. Indeed, we came up with a number of safeguards at that time. I hope that we will do so again.

There is also the principle that inquests should be open to families. The exclusion of families for part or most of the inquest is highly undesirable. As we debate this Bill, we shall need to debate thoroughly the circumstances when a family might be excluded. Recently, the Terry Nicholas case, which was one of those that failed the intercept evidence test, has been resolved by the coroner in a thoroughly practical way. I believe that that will be an example to us as we go through this Bill. The coroner used her common sense; she redacted the sensitive information and the family were not excluded. The delays that the Rodney family have so far suffered because of the difficulties in using intercept evidence are quite unacceptable and I hope that legislation can resolve their case.

Indeed, for families, all delays of many years in holding inquests are equally unacceptable. Going through the inquest process is extremely traumatic for a family member. Not only are they dealing with the grief and shock that such a death brings, but also, if an inquest is being held, it usually means that the death has been unexpected, violent or shocking, and often all three. The state has two duties at such a time. The first is to try to discover the truth of why the death occurred and the second is to learn any lessons for wider society. The fulfilling of these duties should be conducted in such a way as to avoid undue further trauma for the family.

I believe that part of that trauma is induced when there are the sort of delays of which we have had some examples. My local press, the Western Morning News, highlighted such a case only last Saturday. It reported that Mr Pullman has been waiting since 2003 when his only son Adrian died. The inquest opened and adjourned in 2003 and has not resumed. It is not a straightforward case because of the number of agencies involved—care agencies, the local authority, the police et cetera—but it does not involve national security or anything like that. I believe that six years is an inhumane time to make a family wait for an inquest to be held. I hope that the timescale within which inquests are held will also be the subject of debate in this House.

My noble friend spoke about legal aid, which I am sure the House will, rightly, dwell on. Another criminal justice issue about which I feel strongly is the treatment of children within the system. I know that my noble friend Lady Linklater will speak on that. Later, I shall address the sloppy drafting of the Bill in relation to criminal memoirs, because I believe that, while the provisions are justified, they have not been drafted as they should be.

Finally, Part 8 is to be welcomed. The Minister is right to worry that the Government need to continue to listen to arguments about the scope of the assessment notice and enforcement for non-compliance. There is no reason in these days of PFI and the way in which the public and private sectors work together to have such a sharp division between the treatment of the public and the private sectors in terms of their duties under data protection.

Of course we welcome the withdrawal of the information-sharing system, but some interesting points were made at the Information Commissioner's conference last Wednesday that I hope we will have time to expand on in Committee. For example, Michael Wills MP, the Minister for Justice, said that freedom of information requests will be extended to private sector companies holding information of public interest. Since Part 8 deals with ICO powers and that office has responsibility for the Freedom of Information Act, will the Minister consent to introducing those changes into the Bill?

We will be able to make a number of improvements to Part 8, including the one suggested in the March 2009 report of the Joint Committee on Human Rights. The Government should reconsider the Information Commissioner's request that the proposed power to issue assessment notices be extended to data controllers in the private sector. It is not only data controllers who are involved, because other people may fall under the scope of this provision. We may need to debate this in Committee.

Photo of Lord Borrie Lord Borrie Labour 5:42 pm, 18th May 2009

My Lords, I want to touch on just two parts of the Bill which have not received a lot of attention so far, although the noble Baroness, Lady Miller, referred to Part 7 as sloppily drafted, which I shall come on to. First, however, I want to talk about Part 4.

I am pleased to see the provisions for the role of sentencing guidelines. They are designed to streamline and strengthen greater consistency in sentencing across our courts. This has already been well developed over some years in order to get rid of random differences in sentences that bear no relation to local crime reoffending rates. I should say in response to the remarks made by the noble Lord, Lord Kingsland, earlier, or to the noble Lord, Lord Henley, who is in his place, that at the same time the Bill maintains the discretion of judges to ensure the justice involved in deciding a particular sentence to fit the particular case and defendant. My right honourable friend Jack Straw said as recently as 24 March in the other place:

"We are not fettering the judiciary, but we are saying that there should be a carefully moderated body of guidance".—[Hansard, Commons, 24/3/09; col. 241.]

He went on to say that that guidance will become the framework that sentencing judges and magistrates will be expected to follow.

I am sure that my noble friend on the Front Bench would agree that consistency in sentencing has been an objective pursued by the present Government practically since they came to office in 1997 with the Crime and Disorder Act 1998, before which sentencing had been the exclusive preserve of the judiciary in the instant case. Over the past few years, the work of my noble friend Lord Carter of Coles and Lord Justice Gage, whose name was mentioned by the noble Lord, Lord Kingsland, has been considerable in terms of the developments since 1998. The majority of Lord Justice Gage's working party recommended that a court may pass a sentence outwith the guidelines only if it is in the interests of justice to do so. That formula is followed in the Bill. I personally commend it and I doubt if we would do better if we were to take the route suggested by the noble Lord, Lord Kingsland, of seeking to amend that phrase.

I come now to criminal memoirs, an entirely different subject, but as we all know, the Bill ranges over many disparate matters. On a number of occasions in recent years there has been public concern—it might be said public outrage—about the publication of memoirs from which convicted criminals have profited. Ian Brady, Mary Bell and Dennis Nilsen are among those who have profited from the publication of memoirs. A number of rules are already applicable. The Prison Rules prevent the publication of such memoirs while the author is in prison, and the Serious Organised Crime Agency is able to seek a confiscation order from the court when money has been obtained in connection with the offence. Many noble Lords may recall the two men who helped the spy George Blake to escape from prison in 1962. They were held by the High Court to repay the royalties they obtained from the publication of their book entitled How We Freed George Blake and Why.

The Bill seeks to introduce a civil recovery scheme whereby the courts could order offenders to pay amounts in respect of benefits derived from the exploitation of any accounts of their crimes. Unlike Part 4 on the matter of sentencing, which I have praised, I rather doubt whether these provisions are really worth while or desirable. I should say to the noble Baroness, Lady Miller of Chilthorne Domer, that that they are not just badly drafted, they are also not needed. The Bill's own regulatory impact assessment states:

"At most it is projected that two cases a year will arise".

The Government claim that the changes are desirable to prevent further hurt and distress to victims and their families, and indeed concern for victims and their families is a theme that runs throughout the Bill, as the Minister has indicated. But that is a large claim to make for this part when the Government have to admit that the new measure will in practice "capture very few cases". I am talking about individual cases, but I would argue that the publication of a criminal's memoirs may sometimes have beneficial outcomes in terms of assisting rehabilitation of the offender, just as learning new skills or discovering one's artistic talent can help in rehabilitation. In any case, as has already been argued, the Prison Rules and the confiscation provisions of the Proceeds of Crime Act 2002 can be used to recover what I would call overly large royalties in the occasional case where that seems desirable.

I also draw your Lordships' attention to the fact that the Joint Committee on Human Rights is concerned that an exploitation proceeds order, which is the technical name for what the Government propose, is in part dependent on the degree to which people, victims and the general public are offended. In other words, the court would have to go into the question of to what extent it thinks that the memoirs will offend victims, the family or the public in general. Is it all worth while? As one sometimes does in Second Reading debates, I shall put a marker down at this point. If I get any support, I might seek to delete these provisions by saying that they should not stand part of the Bill.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative 5:50 pm, 18th May 2009

My Lords, the noble Baroness, Lady D'Souza, the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Williams of Crosby, who I am sad to say are not in their places at the moment, have all addressed the issue which I wish to address. I pay tribute to the noble Lord, Lord Carlile of Berriew, who has long been concerned about an anomaly in our legislation whereby the International Criminal Court Act 2001 does not permit the UK courts to try individuals for crimes against humanity, war crimes and genocide where those individuals who are suspected of these crimes are present, as opposed to resident, in the UK. "Presence" would encompass the war criminal who stayed for an extended holiday in the UK or had medical treatment here. Nor can they be tried if the crimes in question were committed before the passing of the 2001 Act. Interestingly, the UK law against torture does not distinguish between presence and residence, and that is another anomaly.

The noble Lord plans to introduce the genocide, crimes against humanity, war crimes accountability Bill to expand the UK's jurisdiction to prosecute persons in the UK who are suspected of committing war crimes, crimes against humanity and genocide in or outside the UK. It would also amend the International Criminal Court Act 2001 which, inter alia, determines the UK's jurisdiction for crimes against humanity, war crimes and genocide. However, the publication of the Coroners and Justice Bill gives an opportunity to avoid producing yet another Bill and to produce amendments to cover the glaring gap in the International Criminal Court Act.

I am told—I hope correctly—that the Government are minded to give consideration to this Bill. I am giving the Minister the opportunity to please the noble Lord, Lord Carlile, and many other noble Lords, but, much more importantly, to remedy a situation where we could be seen as harbouring truly vile people who are suspected, with reason, to have participated in evil crimes against humanity, war crimes and genocide.

There will be those who have an instinctive aversion to retroactive law-making. In fact, all of us have such an aversion. In general we should not be able to reach back to penalise conduct that was not a crime when enacted. In Latin this is referred to as,

"nullum crimen, nulla poena sine lege", which means no crime, no punishment without a law. With great respect, the noble and learned Lord, Lord Falconer, who is not in his place, is wrong. This does not apply in this case as the proposal does not retroactively criminalise past conduct. It merely permits the UK courts to prosecute past acts that were crimes at the time.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

I am sorry to interrupt, but actually the noble and learned Lord, Lord Falconer, was saying exactly the same as the noble Baroness.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

I am very grateful to the noble Lord, Lord Lester, for telling me that—I misheard or misunderstood.

In the interests of keeping the speeches in this debate short and to the point, I will not go into the great detailed explanation prepared by the noble Lord, Lord Carlile, which will be produced in amendments in Committee. Until then, I hope that we shall have an indication from the Minister at the end of this debate that he will give the proposal a fair wind.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 5:54 pm, 18th May 2009

My Lords, I declare an interest as a member of the Joint Committee on Human Rights which has prepared two reports on the subject matter of this Bill. The Committee will surely welcome the fact that at the 11th hour the Government have seen sense and have dropped their original proposals for secret inquests, but I share the concerns of the noble Lord, Lord Pannick, and those of my noble friend Lady Miller about the Government's new proposal and wait to see exactly what that will be.

On assisted suicide, I strongly agree with the noble and learned Lord, Lord Falconer, the noble Baroness, Lady Jay, and the noble Lord, Lord Patel. As the noble Baroness said, the law as it stands is a fudge. Those who accompany a loved one abroad to die will still have to await a post facto decision by the DPP on whether a prosecution is in the public interest. The Court of Appeal has said it is a matter for Parliament, and we should not shirk our responsibility. Like other noble Lords, I believe that it is time to introduce a clear legislative framework so that a mentally competent, terminally ill person who is suffering has the right to have a medically assisted death in carefully defined circumstances, accompanied to Switzerland—if that be the right place—and with appropriate and necessary safeguards. I think the law should provide legal certainty, clarifying the circumstances under which someone who has accompanied a loved one to die overseas would face prosecution rather than leaving this entirely to the discretion of the DPP.

On homophobic hate speech, I support the Government on Clause 61 as the noble Lord, Lord Waddington, will not be surprised to know. I will try to clarify this fairly difficult issue. I dislike all speech crimes of any kind; one speech crime is, of course, the race hate speech crime. It is defined in much broader terms than religious hate or homophobic hate speech crimes. There is no free speech defence, or any free speech clause in relation to race hate, whereas there is in relation to religious hate. I was responsible for introducing the religious hate free speech clause—the English PEN clause as it is known. The noble Lord, Lord Waddington, did something similar in dealing with homophobic hate speech.

The question is whether you think that homophobic hate speech is more like race hate speech or religious hate speech. Does homophobic hate speech attack people for the way they are born, for their common humanity, unlike religious hate speech, which attacks people because of their beliefs or their chosen practices? My belief is that it is more like race hate speech than religious hate speech, and therefore the free speech clause that the noble Lord, Lord Waddington, successfully put into the Bill was not necessary. One can see the lack of necessity; Section 29JA of the Public Order Act 1986 provides:

"For the purposes of the offence of stirring up hatred on the grounds of sexual orientation, discussion or criticism of sexual conduct or practices or urging persons to refrain from or modify such conduct is not, in itself, to be taken to be threatening or intended to stir up hatred".

When one looks at that, the answer is obvious. Of course, there are no circumstances in which such conduct could be taken to involve threatening or intending to stir up homophobic hatred. Therefore, I do not think the clause is necessary and I classify it as dealing with an attack on someone's common humanity. For that reason, I believe that the Government are right. I recognise that it is a difficult issue and being a Liberal Democrat, I understand that the spirit of liberty is never being too sure if it is right.

That brings me to criminal libel and sedition which have not yet been mentioned here. But in the other place, amendments were tabled by Evan Harris MP to abolish the offences of sedition, seditious libel and criminal libel. Those archaic offences are redundant and unnecessarily limit freedom of speech. It is time they were removed from our laws. I declare an interest as honorary vice-president of English PEN, which, along with Index on Censorship, Liberty and Justice, wrote a powerful joint letter to the Times on 20 March, pointing out that the repeal of these offences is long overdue and will send a powerful signal to states around the world that routinely use charges of sedition and criminal defamation to imprison their critics and silence dissent.

The Law Commission recommended the abolition of the offence of seditious libel in 1977 and the offence of criminal libel in 1985. In 1979, in the case of Gleaves v Deakin, Lord Diplock expressed doubt as to whether the law of criminal defamation complied with the right to freedom of expression in Article 10 of the European Convention on Human Rights. He noted that the effect of the law is to turn Article 10,

"on its head. Under our criminal law a person's freedom of expression, wherever it involves exposing seriously discreditable conduct of others, is to be repressed by public authority unless he can convince a jury ex post facto that the particular exercise of the freedom was for the public benefit; whereas article 10 requires that freedom of expression shall be untrammelled by public authority except where its interference to repress a particular exercise of the freedom is necessary for the protection of public interest".

In its 1985 report, the Law Commission expressed its strong objection to the law as it stands. According to the OSCE Representative on Freedom of the Media, Bosnia and Herzegovina, Cyprus, Estonia, Moldova and Ukraine have all decriminalised, and Ireland is likely to follow suit. It took us 140 years to abolish the crime of blasphemy; I hope that this House will see fit to remove these crimes from our statute book as well. I hope that the Government will support the amendments; indeed, there were straws in the wind indicating that they might do so.

On genocide and the International Criminal Court Act, I entirely agree with the noble and learned Lord, Lord Falconer, my noble friend Lady Williams of Crosby and the noble Baroness, Lady O'Cathain, and support the powerful speech of the noble Baroness, Lady D'Souza. She raised the issue of the presence in this country of suspected war criminals living in conditions of impunity. Eight years ago I raised the possibility of rare cases in which neither the International Criminal Court nor British courts would have jurisdiction over suspects found in the UK. That, we know, is what happened. My noble friend Lord Carlile of Berriew—this is like Hamlet without the prince—intends to introduce amendments to the Bill. I do not need to say any more about it because so much has been well said already.

I shall talk briefly about retrospectivity, however. Not only, as the noble and learned Lord, Lord Falconer, has mentioned, does the European Convention treat war crimes in a particular category for which the normal retrospectivity provision does not apply, but one thinks about what our courts did on the crime of the common-law offence of marital rape. The lawyers in the House will remember that the House of Lords reversed a 300 year-old rule that a husband could not be guilty of raping his wife, and it was said in the particular case that this involved retrospectivity since the raping husband was found guilty of something that was not an offence before he did it. Throughout a challenge based on retrospectivity, the Commission maintained, as did the House of Lords, that if you know perfectly well that what you are doing is wrong, there is no injustice in a case of that kind. I believe that the same is true with war crimes.

I am delighted that the Government are going to do something about abuses of the conditional fee agreements involving vulnerable claimants, especially in employment tribunals where, I am sorry to say, some members of my profession have been misusing the system at the expense of women in equal pay cases and others. This is most welcome.

Last but not least, I am delighted by what the noble Lord, Lord Borrie, said about criminal memoirs. I would certainly support him if he introduced an amendment. I was amicus curiae in the George Blake case, where we were able to make sure that that appalling, evil man was not able to benefit from publishing his memoirs. That case provides a precedent in a case of that magnitude but, if anyone is interested in the free speech implications of criminal memoirs, I recommend reading the unanimous decision of the American Supreme Court in the "Son of Sam" case. Son of Sam was a particularly evil criminal who found that the proceeds of his book about his crimes were to be confiscated. The Supreme Court unanimously held that that violated freedom of expression and the right of the public to read his memoirs.

There are serious issues, as the noble Lord, Lord Borrie, said. The process of rehabilitation can be advanced when former criminals are able to write books, and if they cannot receive any royalties from the books, that would penalise them in their free expression. So although I do not enthusiastically agree with nasty people writing nasty books, I note that some nasty people have made money out of nasty books, and freedom of expression means the freedom to cause offence to some sections of the public. Therefore this is not, as the noble Lord has indicated, a proportionate use of our time, nor is it a necessary crime to add to the statute book.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee) 6:06 pm, 18th May 2009

My Lords, when I spoke in the debate on the Queen's Speech in December last year, I pointed out, as many others had already done, that we had had five major criminal justice Bills in as many years. I thought then that this year was going to prove the exception and that we would be spared. How wrong I was. Instead of one new Bill, we have two: the Bill currently before us, with 166 clauses and 21 schedules, and the Policing and Crime Bill, now in the other place, with 116 clauses and eight schedules.

Successive Lord Chief Justices have said over and again that we cannot go on like this, yet we have ignored their warnings. Even the professional lawyers and judges are finding it difficult to keep up with the pace of change. It is a basic requirement of the rule of law by which Ministers are bound that the law, particularly the criminal law, should be accessible to all. I invite the Minister, as the very first thing he says in reply, to explain why we alone among western nations seem to need so much new criminal legislation every year. The reason may be—I suspect it is—that when Governments reach the end of 12 years in power, they feel the need to become hyperactive for fear that it be said that they have run out of steam. What a blessing that would be.

The present Bill is a good example of what is wrong. As we know, it has nine parts. The first four all propose major changes to the existing law. Each, in my view, is of sufficient importance to justify a separate Second Reading debate, a point that has been made by many noble Lords—all except the noble and learned Lord, Lord Falconer. We cannot do that, though; we have to pick and choose. The result is that our debate today is not a debate in the strict sense. We jump from subject matter to subject matter, and in the end the Minister will have the almost impossible task of replying to a multitude of different, disconnected subjects. It should not be like that. It is, though, so we have to choose.

I would like to say much on the subject of the sentencing commission, but instead I will concentrate my fire on the proposals to modify the rule relating to provocation. Here one comes up again, at the very first hurdle, to a great irony. Although we have had all this criminal legislation since this Government came into power, there is one area of the law which cries out for reform but has scarcely been touched. That, of course, is the law of murder. For many years now, the most senior judges in the land have been saying that the law of murder is in a mess and needs radical reform, but that cannot be done by the judges alone—it needs Parliament to take a hand.

In 2005, the Government seemed to have got the message. They invited the Law Commission to prepare a new framework for the law of murder, which it so badly needs. In 2006, the Law Commission produced its report. What did the Government do? For nearly two years, they did nothing. Then they produced a consultation paper, which completely ignored the first 64 pages of the Law Commission's report. Instead, they picked out three relatively minor topics including, in particular, the partial defences on a charge of murder—provocation and diminished responsibility.

I hope that the Minister, when he replies, will explain to the House why the Government have still done nothing about the major recommendations in the Law Commission report. Is it because Ministers cannot agree on what should be done? Or is it perhaps because the whole subject of murder, including the subject of the mandatory sentence of life imprisonment, is so politically sensitive that it is better not to touch it at all?

The only explanation given in the consultative report is simply not an explanation at all. It is that the Government have decided not to proceed on what they call a step-by-step basis. But why? It is so very odd for, on the very same page on which they say that, they point out correctly that the law is in a mess, just because it has developed historically on a piecemeal basis without regard to how the law,

"as a whole fits together".

By inviting us to proceed now on a step-by-step or piecemeal basis, surely they are committing the very same error which they have identified higher up on the very same page. To me, it seems little more than a waste of time for us to be considering the partial defences to a charge of murder until we have decided what the definition of murder should be. As the noble Lord, Lord Thomas, pointed out, if it be the fact that the House of Commons did not have time to consider this matter at all, then it is little short of what he described as being a scandal.

It is said in the ministerial foreword that provocation is an area of the most pressing concern, but here the Ministers are quite simply wrong. It was an area of pressing concern until the decision of the Privy Council, in the case of the Attorney-General for Jersey v Holley in 2005. That was a decision of nine Law Lords, convened expressly for the purpose of putting provocation on a satisfactory basis, and that it has done, so what is the pressing concern?

A great deal in Part 2 is, to my mind, very questionable. If we were to enact it as drafted, I suspect that it would take many years for the courts to sort it out. The noble Lord, Lord Thomas, said that we must deal with all these things in Committee, but I have a more radical solution. In my view, our best course is to ask the Government to think again on Part 2, or at any rate on the question of provocation—to take it away now and come back with it when they have agreed on proposals for the reform of the law of murder as a whole.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour 6:15 pm, 18th May 2009

My Lords, the Bill raises momentous constitutional, judicial and ethical issues which are being debated with your Lordships' customary incisiveness. I shall just consider one item from the extensive menu that the Bill presents, and that is the issue of treasure. The Minister reminded the House earlier that, since the 12th century, coroners have had responsibility in relation to treasure. It is therefore perhaps not unreasonable that, in the 21st century, we should update the legislation. We should not be impetuous in these matters, but we should not be dilatory either.

It was a mystery why the provisions on treasure in the 2006 draft Bill were omitted from the Bill which we have before us, but happily we no longer need to inquire into that mystery, because today my noble friend told the House that the Government would reinstate in the legislation the provision for a single national coroner for treasure for England and Wales. I am very grateful to him for that. I declare an interest as a vice-chair of the All-Party Parliamentary Archaeology Group, and a fellow of the Society of Antiquaries.

The draft provisions on treasure were widely supported when they were presented, as certainly will be the Government's change of heart announced today. Already, it has been generously welcomed by the noble Lord, Lord Kingsland, from the opposition Benches. It will be very much welcomed by the all-party group and the Society of Antiquaries, and by the British Museum, which has statutory responsibilities for administration on behalf of the DCMS of the regime created by the Treasure Act 1996. It will be welcomed as well by the National Council for Metal Detecting, which represents the vast majority of people who actually make finds of treasure.

The definition of treasure is complex and derives from the 1996 Act but, in summary, it means any gold or silver finds that are over 300 years old; groups of coins in certain circumstances; and, where they are prehistoric, base metal groups or hoards of items.

The provisions in the draft Bill were retabled in Committee in another place, and debated on 24 February. Mr Henry Bellingham set out the case for them admirably and in doing so acknowledged then, as I do today, an indebtedness to the British Museum for its advice on these issues. Ministers listened to what was said in that debate, and, in due course, accepted its conclusions. That seems to me, on a miniature scale, a very good instance of how parliamentary democracy ought to work—a point I think worth making, given that today it is unfashionable to suppose there is any good whatsoever in parliamentary democracy in this country.

Why is it right to establish a single coroner to deal with all cases of treasure? Coroners in many areas, facing a multitude of pressures—a number of which have been described by noble Lords earlier—have been failing to meet the target set for them in the Treasure Act's code of practice to resolve treasure issues within three months. The average time taken is about twice that. There is much variability: in some areas—Durham and Leicester, for example—it has been taking a year to deal with these cases. In Bridgend, it took nearly three and a half years for the coroner to hold an inquest in a particular case of treasure. I of course make no complaint or criticism of the Bridgend coroner. As was movingly described to us in the speech of the noble Baroness, Lady Finlay, the Bridgend coroner was under the most extraordinary pressure in the exceptionally tragic circumstances in that community. Indeed, any coroner being aware of the urgent desire of bereaved families for inquests to be completed could readily be excused for not making the consideration of treasure cases his top priority. But evils have arisen out of these delays. People who have reported finds have been prevented from receiving their due rewards, which is unfair on them, and the prevalence of delays has made it likely that others will be deterred from reporting finds that they may make. That tends to take us back towards the state of affairs that prevailed before the 1996 Act and before the creation of the Portable Antiquities Scheme. That was chaos: items of treasure simply disappeared, important information about our archaeology and history was not recorded, and lucrative opportunities were provided for criminals operating in the antiquities market—a matter which the Government solemnly committed themselves to tackle seriously when they subscribed to the UNESCO convention.

Not only will the system of having a single national coroner be more efficient and speedier, we can expect that a dedicated coroner will be more expert in this field, and it will be cheaper to have a single treasure coroner—never a negligible consideration. The BM has computed that the saving will be of the order of £320,000 to £400,000 a year. So the decision that the Minister has announced today will be good for everyone: good for the finders of treasure, good for the landowners on whose land the treasure is found, good for the museums where these items of treasure should be consigned, good for scholars, and good for the public who appreciate items of treasure and learn from them.

I did not hear the Minister say earlier whether it was the Government's intention also to reinstate in the Bill the provisions that were in Schedule 3 to the draft Bill. That schedule would have brought forward three amendments to the Treasure Act, all uncontroversial and all recommended in the 2002 review. The first provision would widen the obligation to report finds of treasure to anyone who comes into possession of it, not just finders. That would put pressure on dealers and others such as people operating internet sites, notably eBay. The second alteration would provide a power for the coroner to require anyone reporting a find of treasure also to deliver that treasure—if it was in their possession—to the coroner. The third reform would extend the limitation period for prosecutions, which is currently six months. If coroners take a year to establish the evidence, it is very difficult indeed for the police to proceed.

The system created by the Treasure Act is a success. The number of finds reported has risen from some 25 a year before 1997 to more than 800 in 2008, but the delays which have infested the system have tended to bring it into disrepute and to undermine its effectiveness. Parliament would, therefore, do well to legislate the solution that the Government themselves originally proposed.

Photo of Baroness Fookes Baroness Fookes Conservative 6:23 pm, 18th May 2009

My Lords, I share with many other speakers my disapproval of the unholy mishmash of provisions in the Bill. The noble and learned Lord, Lord Lloyd of Berwick, gave a devastating critique of this in relation to the criminal justice system. Unfortunately, there is a pernicious trend in all legislation to put together disparate elements in ever longer, bulkier and more complicated Bills. I detected from my noble friend Lord Kingsland that he disapproves of this trend. I trust that if and when there is a change of Government, any Front Bench will take this to heart and reverse the trend by introducing better legislation and less of it.

However, we have to deal with what is before us. I am at least grateful for the new aspects of the coroners' legislation, which was certainly in need of an update. I want particularly to consider military inquests. I declare an interest as the president of the War Widows' Association of Great Britain. This is a matter of great concern to the association because, as everybody in this House will appreciate, sadly there have been many military inquests as a result of recent and continuing conflicts in Iraq and Afghanistan. Nothing can, of course, detract from the misery and tragedy for widows and close family members when a young man or woman dies prematurely in the service of this country. However, the way in which inquests are conducted can make a great deal of difference for better or for worse. Unfortunately, in the past some very unhappy situations have developed, partly because, initially, coroners were not familiar with the military background, which made it more difficult for them to conduct inquests—at any rate to the satisfaction of the families. Worse still, there were horribly long delays in having an inquest either brought forward or dealt with. I am talking not simply of months but of years in some cases. Just imagine the impact on bereaved members of a family of inordinately long delays, for which they can see no justification. This arose in part from the fact that bodies repatriated from abroad often go to the same place. The one good point about this is that some coroners, particularly in Oxfordshire and Wiltshire, have developed great expertise as a result of dealing with many such inquests.

The noble Lord, Lord Thomas of Gresford, referred to legal aid in the context of the horrible incident of the Puma helicopters that came down in Iraq, and the difficulties the bereaved families faced in obtaining aid in that important inquest. Therefore, this new Coroners and Justice Bill presents a very good opportunity to ensure that none of the problems I have outlined ever recurs. However, there are shortcomings in the Bill's drafting and I should like to suggest changes that should be made. The present system comprises a chief coroner and deputy chief coroners. I suggest—in this I am supported by a number of service personnel and the War Widows' Association—that one of the deputy chief coroners should have specific responsibility for military inquests, thereby enabling real expertise and the ability to discern patterns to be developed over the years. Furthermore, it is absolutely essential that the expertise that has been built up among a few coroners should not be dissipated or lost over time. For that reason it is essential that any coroner who undertakes a military inquest should have proper training. At the moment, there is a "may be" as regards training generally. This should be strengthened so that there is a training requirement, at least for military inquests—a "must" rather than a "may". That would constantly bring the whole issue to the attention of the coroners' service and we should not then lose any expertise.

I am less clear how legal aid should be dealt with but I leave that in the Minister's hands to look at very carefully. All in all, I regard the coroners' part of the Bill as providing a good opportunity to assist those who sadly lose their lives in war at least to have their inquests sympathetically and kindly dealt with. We owe them that at the very least.

Photo of Baroness Stern Baroness Stern Crossbench 6:29 pm, 18th May 2009

My Lords, it is a great pleasure to follow the contribution of the noble Baroness, Lady Fookes. I remember that years ago, when she was in the other place and chaired the expenditure committee, she produced many excellent reports on penal policy, whose contribution to the subject still stands up today.

I begin with a general point, echoing the remarks of the noble and learned Lord, Lord Lloyd of Berwick, that there seems to be no halt in the changes to criminal law. Not so long ago, the Minister was good enough to provide me with the answer to a Written Question: how many new imprisonable offences have been created since 1997? On that date, the answer was that, up to July 2007, Parliament had created 1,472 new imprisonable offences—1,032 in primary legislation and 440 through regulations. These ranged from ships receiving trans-shipped fish under the Merchant, Shipping and Maritime Security Act 1997 to the attachment of earnings order—finding the debtor's current employer, under the Tribunals, Courts and Enforcement Act 2007. That figure of 1,472 new imprisonable offences seemed to be rather a large number and I think that it might be worth while keeping that figure up to date. I wonder whether the Minister can tell the House how many new imprisonable offences, if any, are to be created by this Bill and subsequent regulations.

That leads me to a few remarks on the proposal in Part 4for a Sentencing Council for England and Wales. The proposal derives, as I understand it, from the 2007 report by the noble Lord, Lord Carter of Coles, suggesting that, if sentencing were more structured and predictable, the provision of resources to implement sentences would be more easily manageable. He suggested Minnesota and North Carolina as models. In this respect, it is perhaps worth noting that prison numbers have risen in Minnesota from 6,200 to 9,900 in six years, a rise of 60 per cent. In North Carolina, they have risen from 31,200 to 39,000, a rise of 25 per cent. The evidence suggests that the countries where there are sentencing councils or commissions that lay down guidelines or other strictures are the countries with high and rising prison populations.

I have endeavoured to try to establish from earlier debates, and from the Minister's most helpful opening remarks, what exactly the sentencing council will be for. A number of those who support it think that the idea is to reduce, or at least control, the prison population. Yet, in the other place, the Lord Chancellor was adamant that he was not aiming to reduce the prison population through this measure. He said that the,

"suggestion that the proposal is driven by a desire to reduce the prison population is completely untrue. It is belied by the fact ... that the prison population has increased by twice the rate at which it increased under the Conservative Government. It has increased by 2,000 places a year and rising".—[Hansard, Commons, 26/1/09; col. 47.]

Presumably, that is not the aim of the sentencing council. The Minister suggested that it would give predictability with regard to the demands on criminal justice resources. However, it is not clear how that can be achieved when sentencing is but one of the factors, and perhaps not the largest factor, to influence prison population size.

The Minister mentioned that consistency was a possible reason for such a body. On that, there seems to be considerable wisdom in the words of Lord Justice Rose that,

"perfect consistency in outcome is impossible to achieve because of the infinite variety of circumstances with which ... the courts are presented".

There is a question about the measuring of consistency. What will the sentencing council mean by consistency? Is its aim, as some have suggested, to ensure that no member of the judiciary is tempted to be independently creative, locally relevant, unconventional, problem-solving or imaginative in trying out new approaches or finding new ways? In particular, I am thinking here of the excellent work of the community court in Liverpool as an example of a creative, locally relevant sentencing disposition. A sentencing council will certainly curb any tendencies in that direction, making judges, as the noble Lord, Lord Kingsland, suggested, more like civil servants. That is a great reduction in the quality and vitality of our legal tradition.

Have the Government given any thought to the merits of a sentencing advisory council, such as the one in Victoria, Australia, which does not get involved in designing guidelines for the judiciary, but has the role of researching sentencing policy, collecting and analysing sentencing information, providing information on sentencing to the government, judiciary and the public and providing feedback on the effectiveness of sentences? Would that not be a model that could command the widest support and lead to the best outcome while preserving the independence of our much respected judiciary?

I should like to move on briefly to Part 5 and to the Government's decision to introduce, by amendment, a provision in the Bill regarding the responsibility for deciding on the release of prisoners serving a sentence of 15 years or more under the Criminal Justice Act 1991. The transfer of this decision-making power from the Secretary of State to the Parole Board is very welcome. As the Minister will be aware, the amendment has been welcomed by the Joint Committee on Human Rights as a human rights enhancing measure. It is always important to note and celebrate decisions that make the criminal justice system more respectful of human rights.

Finally, perhaps I may say a few words on the proposal for exploitation proceeds orders, which could be caricatured as clamping down on ex-prisoners who are so successfully rehabilitated that they give up crime and become writers instead. Clearly, there is an argument here. Broadcasters and publishers may well try to get those who have committed horrendous crimes to talk about them so that they can attract an audience and boost their profits. The fear is, however, that, as with other government measures, there will be creep. It will start with only two a year but anyone with a criminal conviction who wants to become a writer, broadcaster or newspaper columnist will feel under pressure about what they write, presumably, for the rest of their lives—if I have understood that correctly.

If, for example, a man called Jimmy Boyle, who was in prison in Scotland in the 1980s, wrote some rather well known books about it, and is now a successful businessman, decided to write his memoirs in his old age, his royalties could be appropriated, even today. Will the Minister confirm that that is what is being proposed? I should have thought that it is an achievement when a convicted person turns to writing in order to make a living. As the Minister will know, there are concerns about the drafting of this measure, particularly,

"the extent to which any victim of the offence, the family of the victim or the general public is offended by the respondent obtaining exploitation proceeds from the relevant offence".

Is the Minister satisfied that the court will be able to decide whether people are offended? How will the prospective author know how to conduct his or her new non-criminal career as a writer in this context?

The Joint Committee on Human Rights says of the criterion of being offended:

"There is no Convention or common law right to be protected from offence. The Bill introduces a degree of legal uncertainty which will be entirely dependent on the subjective reaction of a small group of people or the wider public to an individual's actions".

I look forward to hearing the Minister's response to this critique by the Joint Committee on Human Rights. I assure the noble Lord, Lord Borrie, who is not in his place, that if he wants to delete these provisions, I would be happy to support him.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat 6:39 pm, 18th May 2009

My Lords, I welcome a Bill that addresses inadequacies in the coroners service. I am simply struck that this major aspect of our administration of justice could not justify a Bill on its own, and that it comes to your Lordships' House so many years after the Shipman inquiry, when the Government moved with great alacrity to address the medical consequences required, while the coronial consequences have taken a much longer time. In that regard, I declare an interest as a consultant psychiatrist working in the National Health Service, and my wife is a consultant pathologist in the National Health Service in Northern Ireland, although I should point out that she does not provide and has not for many years provided services to the coroners in Northern Ireland.

The noble Lord, Lord Imbert, pointed out that the coroner for Westminster was medically qualified and was a qualified barrister. It has always been my view that the ideal arrangement for coroners was that they should be dually qualified as lawyers and doctors. It seemed obvious that they needed to be legally qualified, of course, to carry through the legal and judicial aspects of their work; but if the inquest was to find out the cause of death, it was rather obvious that they needed some expertise on the medical side. However, that is neither to be, nor perhaps is entirely practical, at least in the short term. Therefore, I welcome the Government's proposal to institute a medical examiner service.

There are a number of questions to be raised. Will these examiners be properly qualified? Will they be professionally independent? Will they be appropriately accountable? Will they be adequately resourced? Without these things, they will not provide a proper service to the coroners. Will they be professionally qualified? In the Bill, all that I note is that they have to be qualified as doctors who are registered, practising and with five years' experience. I hope that the Minister can lay my mind to rest on this; it would be welcome if there have been formal discussions with the Royal College of Pathologists to look at whether it might institute some form of qualification for medical examiners—perhaps a diploma with appropriate training. Or are we to assume that these examiners will simply have tired of their other work as general practitioners and have chosen this as part-time work? That would not be adequate.

Will they be professionally independent? My noble friend Lady Williams of Crosby and the noble Baroness, Lady Finlay of Llandaff, raised this question, given that in the Bill it is clear that the examiners will be appointed by, paid by and accountable to PCTs. However, the PCTs themselves may well be at fault when it comes to any inquest into causes of death. It would be wholly inappropriate that medical examiners could be required to confront their own employers, to whom they are financially, clinically and professionally accountable. I can think of no other circumstance whereby new legislation making such a proposition would be brought in. That is not necessary; there are other ways of addressing this issue.

Will the examiners be appropriately accountable? It appears that in the first instance we will see their numbers growing, but there is no indication that there will be a chief medical examiner, as there is a Chief Coroner. Yet, if there is to be accountability and establishment of standards to ensure that local medical examiners live up to their professional requirements, surely there is a strong case to include in the Bill provision for the appointment of a national medical examiner.

Will the examiners be adequately resourced? My noble friend Lady Miller of Chilthorne Domer raised the question of the current delays in the provision of inquests. On 3 July 2008 a Member in another place, Mark Durkan, received an Answer from the Minister saying that there were 47 cases in Northern Ireland where the coroner had indicated a need for an inquest, but none had been commenced for five years. The deaths had occurred more than five years previously, and no inquest had yet been commenced. Given that difficulty, I welcome the notion of partial inquests—because that is what they really are—or partial post-mortems proposed in the Bill. There has been a combination of difficulties with resources and, since the human organs inquiry, a considerable resistance by many members of the public to have post-mortems conducted on their departed. The idea that there might be partial post-mortems may have some merit. It is clear that the coroner may ask a person whom he deems appropriate to conduct an investigation which he deems appropriate. That person does not have to be medically qualified; it has generally been assumed that an investigation is large, like an MRI scan, but it does not have to be that at all—there could simply be, for example, a fine needle aspiration biopsy, which might be taken by a non-medically qualified person, such as a medical laboratory scientific officer, and some kind of presentation would be provided. The only way to ensure the quality of such a thing is the medical examiner. That is why I welcome the idea of a medical examiner.

However, it is not clear that the coroner has any requirement to consult the medical examiner. The coroner could say to himself: "I think it might be such and such. Let's ask this fellow here to take a biopsy, a few cells or to check up something or other, and we will see whether or not this is appropriate". However, we all know perfectly well—for example, from the sad death of the gentlemen at the G20 disturbances—that what may initially appear to be a potential cause of death may not be the cause of death at all. One has to be very careful when conducting a less than full post-mortem that one does not head down the wrong track, doing a partial investigation that leads one to the wrong outcome. There needs to be some reassurance on serious consultation by the coroner with a medical examiner.

That brings me again to the question of a chief medical examiner, because if a senior coroner can refer locally to a medical examiner, is there not a case for having a national medical examiner to whom the Chief Coroner may refer? The Chief Coroner would require someone of that stature and experience who was fully independent of any local medical examiner or the coronial service.

There is another important issue. Some of these deaths, sadly, come by the hand of the deceased, and coroners are required to investigate a number of suicides. Madeleine Moon MP, in whose constituency there was a tragic rash of suicides by young people, raised this question on 26 January at cols. 76-80 in Hansard. She subsequently received some response in writing from the Minister. However, she raised the question of whether or not there could be psychological autopsies, which would, in other words, try to understand what was going on in the mind of the person, because it was what was going on in those young people's minds—not their bodies—which led to their deaths. One of the difficulties is that if there is not some psychological sophistication on the part of the coroner or the medical examiner, the case will be difficult for them to judge and assess.

For example, there were a number of deaths of young men by suicide in north and west Belfast a couple of years ago. There was a lot of talk about the psychological contagion, mentioned by the noble Baroness, Lady Finlay of Llandaff, whereby one or two young people harmed and killed themselves, and other young people followed suit. It began to come to my attention from healthcare workers in the field that many of these young men had been grossly abused by paramilitary organisations or members. I went to the police and asked whether any investigation had been done. They said, "No crime has been committed. Suicide is not a crime". I said, "No, no; the cause of the suicide might well have been a crime". The answer was that there had been no investigation, because there had been no serious understanding of the question as to why young people might commit suicide. The attitude was simply: "Well, suicide was the cause of death". No; that was the mode of death, not the cause. The cause of death was what led those young people to harm themselves. As I subsequently found on my further investigations, it was clear that "bullying" does not address what they suffered; finding no way out, they took the only way that came to their hands—to kill themselves.

If there is to be a real understanding of what happens, it must not be a superficial gloss—"We have a number of young people killing themselves, so it is obviously a psychological contagion". There has to be the capacity for the coroner to look seriously at the matter, to get underneath it and to have the advice of medical examiners who will themselves have sufficient training in that regard that they will be able to address it.

Like other noble Lords, I finish not because I have exhausted the possibilities of speaking on the issues here, but because my time has passed. I have to refer to Clauses 44 to 46 on provocation, which have already been referred to by my noble friend Lord Thomas of Gresford and other noble Lords. I have struggled to work out how the Bill's clauses make sense and I would welcome what the Minister had to say. Loss of control does not have to be sudden. I find it difficult to work out how it could then be anything other than a premeditated act—one thought about in advance—because if it is not sudden, it is taking place over time. If it has happened, then it has been thought about over a period of time. I cannot for the life of me understand how one can have a premeditated loss of control. One of the things that would be most likely to produce an emotional reaction, the discovery of sexual infidelity, is to be ruled out completely. If some poor lady has the serious disadvantage of a partner who snores heavily, and she decides after many years to poison him slowly over a period, she could well call on this possibility. But if some day a similar lady was to discover that her husband was being unfaithful and she hit him over the head with a frying pan, she could not call on this. That does not make any sense. However, I will welcome any enlightenment that can be showered on us by the Minister on this or any of the Bill's other aspects that I have raised.

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench 6:51 pm, 18th May 2009

My Lords, I am the 24th speaker in the batting order, so it is hardly surprising that some of the points one wishes to make have already been enunciated. Your Lordships may be pleased to hear that I want to be relatively brief and, by taking less than eight minutes, possibly return some of the time that one or two errant noble Lords have taken. One of the main topics to which I wanted to speak was the failure to deal with the law on murder, following the noble Lords, Lord Kingsland and Lord Thomas of Gresford, and the noble and learned Lord, Lord Lloyd of Berwick. I also deplore the inadequate and almost laughable manner in which provocation has been dealt with. I supported the noble Lord, Lord Waddington, some 11 months ago on his free speech clause, and I support his view now. The provision is in Section 29JA of the Public Order Act 1986 and in my view it should remain there. I will just say something about the manner of seeking to repeal it.

On assisted suicide, I approve of the new crime clearly created by the Bill, but I cannot see how it would be right simultaneously to legalise the planning of a trip to Switzerland for a would-be suicide. They are diametrically opposed and we reduce Parliament to a laughing stock, if that is not an extravagant phrase to use at the moment, by having conflicting provisions in the legislation. My final point would have been on the secret inquests provision. I had strong views in hostility to any such proposal and I asked myself when the Government first decided that there was a lack of parliamentary support for those provisions. I have been reading about a lack of it for many weeks now. One suddenly has thrust upon one on Friday the new Section 2 and the procedure under the Inquiries Act 2005, which raises a host of new issues.

I want to concentrate for a couple of minutes—three minutes of your Lordships' time—on what the Bill has thrown up in relation to the manner of legislating. That is a theme that the noble Lord, Lord Kingsland, first ventilated and the noble Baroness, Lady Williams of Crosby, had wise things to say on that theme. The following points seem to be illustrated: first, we have a repeal of a controversial provision adopted about 11 months ago. Whether it is technically unconstitutional to set about repeating it, there seems to be no new evidence of any relevance whatever in relation to it; what seems to matter is just how we feel about the section and then there are attempts to review what was said in Parliament, keeping the door open and so on, which I have found unconvincing and unsatisfactory to set about that instantaneous repeal.

Secondly, I address the mixture in one Bill of so many different and conflicting topics, which are incompatible and make it hard to deal with on Second Reading. I do not know what we will do when we get to Committee—it will have to be long. A Bill like this that makes proposals covering large areas of human conduct, from murder to suicide and many other topics, could do with prior consideration by a Joint Committee of both Houses. I served once on such a committee. They are excellent, because they can marshal the evidence relevant to the various provisions. It would have to have to have been given a decent lease of time to make a report. But the most serious issue, which affects not just this Bill but two or three others of which I am conscious, is that we are supposed to be a reviewing Chamber. We are supposed to be reviewing something that has been considered properly in another place. There have now been many occasions—I cannot purport a list and have not done the research necessary for one. I recall from the top of my mind the then Legal Services Bill, where a large block of sections were brought into the Bill in your Lordships' House which had not been considered in the other House at all. It has happened to some extent in the political parties and funding Bill that has just been considered in Grand Committee in the Moses Room, again under the noble Lord, Lord Bach. Here we are having to consider provisions that have not been properly dealt with. We have thrust upon us suddenly as from Friday a new statute to look at—the Inquiries Act 2005.

As I said, the most important point in all this is that the Lords is not truly a reviewing Chamber, because it is asked to undertake the initial task of looking at the legislation. That is wrong: on some other occasion we need to look at it and see where things have got to in the relationship between the two Houses.

Photo of Lord Turnberg Lord Turnberg Labour 6:57 pm, 18th May 2009

My Lords, I am even lower in the batting order than the noble Lord, Lord Neill of Bladen, so I have been busily crossing out parts of my speech. I want to speak briefly about two aspects of the Bill. I express an interest as an ex-president of the Medical Protection Society, which is a mutual organisation providing indemnity for health professionals. It has had a keen interest in the Bill for obvious reasons.

The Bill has been a long time coming, but it is clearly necessary and welcome, even now. I am happy to see, for example, that the original proposals in Part 8, previously Clauses 152 to 154, have been tightened up. Many medical organisations have had concerns about the issue of confidentiality. It is good to hear that the Government will be consulting further on this. It will be important for the medical profession to be involved in that consultation.

Leaving that aside, I believe that a number of areas need some clarification. Here I focus mainly on the roles and responsibilities of the medical examiner. This is clearly going to be an important job. I make no apology for returning to this matter, about which the noble Lord, Lord Alderdice, waxed eloquent; I will, however, truncate my remarks in view of that.

It is essential that the medical examiner is well trained and experienced in every aspect of the role and is able to give a view that is seen to be independent of the employing authority, as has been said. I have several questions for my noble friend. First, what steps will be taken to ensure that these doctors have the right skills and experience, are well trained and can be attracted to the job? Secondly, would it not be preferable for medical examiners to be employed by the coroners' service, for example, rather than by health trusts, to ensure their independence? Would it not be better if these doctors were monitored, as described in the Bill, in such a way that their professional judgment was not compromised? Here I resonate to what the noble Baronesses, Lady Williams and Lady Finlay, had to say.

I should like now to turn to something a little different: the coroner's need to determine the cause of death by post-mortem examinations. The usual pathologist's open post-mortem is something that many relatives, if they know what it entails, find somewhat disturbing. That is especially the case for Orthodox Jews and Muslims, for whom the deceased should, where at all possible, remain intact and be buried in the shortest possible time. To both religions, post-mortems of this type are an anathema. If there were alternative ways of determining the cause of death, clearly those would be preferable.

Just as in life a diagnosis can be made in many instances by means of a variety of scans without recourse to a surgeon's knife, so it seems likely that the use of MRI scans, for example, can reveal the cause of death. This technique has been used successfully in a number of instances in Manchester, in the north-west, and invasive post-mortems have been avoided there in carefully selected cases. I understand that a trial of MRI scanning versus the usual practice is being carried out in Oxford. If, as seems likely, this is shown to be helpful to coroners in some although probably not all cases, it will be welcomed not only by Muslims and Jews but almost certainly by many others.

There are of course a number of issues that will need sorting out, such as costs. I understand that MRI scans are currently running at about £500 to £600 in the private sector, where post-mortem scans are being carried out now. There is also the issue of the availability of scanning equipment. However, my point in raising this is that these are likely to become less serious obstacles in due course. My question now for my noble friend is therefore whether he will encourage coroners to consider including non-invasive ways of determining the cause of death, such as MRI scanning, alongside the usual, more invasive methods currently used. This is certainly mentioned in the Explanatory Notes to the Bill, but can he give this possibility a greater push? Such encouragement either in rules of practice or verbally in response to my question would be very well received in religious communities.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 7:02 pm, 18th May 2009

My Lords, as I read through this monster Bill I had an image of a civil servant going round the Ministry of Justice pushing a trolley and shouting, "Bring out your dead!", and people putting in it any old scrap of legislation that had anything to do with the word "justice". Coroners were the first, and all the rest came later. Like my noble and learned friend Lord Lloyd, I deplore these massive Bills dealing with vast numbers of different subjects. As the noble Lord, Lord Neill, said, the result is that there is inadequate time for the subjects to be properly scrutinised in the other place. That is truly the case with this Bill. What also worries me is that this is but one of five enormous Bills with which this House is faced. I wonder what the impact will be on legislative time and what will have to be dropped if the Government try to get through the contents of all these Bills, because all the issues need examination in their own right.

We are all prisoners of our experience. I was extremely glad to hear the noble Baroness, Lady Fookes, talk so movingly about the plight of military widows and families. I saw their plight when I was Adjutant General during the first Gulf War. Also, when I was the Chief Inspector of Prisons and preparing my paper Suicide is Everyone's Concern, the charity Inquest arranged for me to see the families of 10 people who had taken their lives in prison. It was the most emotional and harrowing day that I spent in that job. Those families' stories about how they were handled by the Prison Service were shaming. They went into those inquests expecting to learn more about what had happened than an inquest is designed to give. There had also been delays of up to four years in the inquests. The Prison Service's attitude was adversarial, and the service was represented by legal representatives, as the families were not. It was all summed up by someone who said, "What would you think if you saw the governor of the prison"—who was in fact a woman—"raising her arm and shouting 'Yeah!' when an open verdict was recorded?".

My concern about the coroners part of the Bill is that it is inadequate in two separate respects. The first is that it is inadequate for the coroners themselves. My noble friend Lord Imbert has already asked why coroners are not part of Her Majesty's Courts Service and, therefore, under the jurisdiction of the Ministry of Justice. This impacts on their resources and their accommodation. If this is a serious part of the judicial system, why was the inquest into Mr Menezes's death conducted in the Oval cricket ground because there was nowhere else to go? Why do coroners have to delay inquests because they cannot get suitable accommodation? Surely this is not a matter for coroners themselves; there must be a system to support them.

Why do coroners have to go to local authorities for funding, making funding a postcode lottery? Why do they have to seek for all the staff they need? Why cannot they recommend proper legal representation of people who are there? Why do coroners have to wait 40 years for a pension when it is only 20 years for judges? Will the Government give local government the extra funding that the coroners need to carry out their purpose? When will we hear whether the Chief Coroner himself will have any resources to enable him to carry out the tasks that he has to do?

I know that the Government consulted coroners in preparing the Bill. I also know that the coroners themselves feel that a very large number of their recommendations have not been picked up and included. I would therefore welcome from the Minister details of the provisions that the coroners said would help them to do their job but which have not been included. It is 109 years since the coroners' system was last looked at. Regretfully, rather than tackling the whole issue root and branch, and all the bits, in one go, there has been a cherry-picking process which deals with only some of the bits and by no means all of them.

The second group about which I am concerned are the families. The Minister mentioned that families are at the heart of the Bill, but the evidence does not back up that claim. Take the Prison Service. In 2007-08, the Prison Service spent just under £2 million on legal representation at inquests. In the same year, only 12 of 69 applications for extraordinary funding made by coroners to help the legal representation of families and others were accepted. Legal aid is just not obtainable for the families, and I include the military as well as the prison system in this. At times prison families have to go for means testing. If the families really are at the heart of the system, why are they not properly represented? Are the Government making the resources available in the Bill to enable that to be put right? There is no evidence of it. We have raised the subject many times in this House. For example, when debating the corporate manslaughter Bill, we mentioned that the families of people who had committed suicide were themselves victims of something that had happened at the hands of the state. If the state really means what it says about families, I would like to see on the face of the Bill evidence that that is right.

I have one small rider to this. I support the comment made by my noble friend Lord Patel that it is important that those who commit suicide in special hospitals are properly looked after. The arrangements for people in special hospitals are not even as good as they are in prisons where, for example, the Prisons and Probation Ombudsman is required to investigate all unnatural deaths. I very much hope that we will hear about an improvement to the Bill to include special hospitals, because it will certainly come up when we are amending the Bill during Committee.

It may seem, with that rant, as it were, on two issues, that I am totally opposed to the Bill. I am not. I am not opposed to the Bill in general or its aim in general. I am sad that, instead of focusing on that issue as a single issue and getting it right, the Government have dissipated it in yet another massive Bill in which there is a danger of all that is required going by default.

D

Dear Lord Ramsbotham,
Thank you for the time and thought you give to the possible dilution of what is a vital Bill. Vital in that families are truly represented and fully supported, vital in that all the most salient facts are agreed and examined accordingly, vital that the need for funding should not adversely impact on justice.
You description of how harrowing you found your day spent with families bereaved by suicide, was very honest and deeply felt. Just to say that those very families spend the rest of their lives with that same sense of foreboding which can be helped with professional support when the family most need it. To many people an inquest is the first chance to get the facts established, and the level of support received from either the prison, psychiatric or coronial services, is critical to the overall well being of that family.
I sat through the Commons debate on Monday night re the failings of Mid-Stafford hospital and I agree with your comment: " For example, when debating the corporate manslaughter Bill, we mentioned that the families of people who had committed suicide were themselves victims of something that had happened at the hands of the state. If the State really means what it says about families, I would like to see on the face of the Bill evidence that that is right." But in not wishing to apportion blame, accountability must be accessible. There are many ways we need to see this accountability. IE If the Dept of Health issue health service guidelines (HSG) they must be accessible. Yet in HSG(94)27 to Strategic Health Authorities: "Independent Investigations into Adverse Incidents in Mental Health Services" access criteria #3 is "suicide clusters as possible indicators of 'significant system failure" yet there appears to be no benchmarking of suidice figures hence no awareness of how many make a cluster.

Madeline Moon MP for Bridgend was clearly sure that the recent suicides in Bridgend were indicative of system failure by this comment "I agree that the cluster was ‘indicative of significant system failure’, in particular lack of investment a suicide prevention strategy and in a variety of mental health services that were attractive to, and met the needs of, young people."

Yet, Ms Moon voted against a public enquiry into patient care failings in Mid-Staffs and the gender issue already recognised as a key priority within current suicide prevention strategy has not been adequately addressed for 2011 in Suicide prevention strategy for Wales.

Local suicide indicators have already been withdrawn and the aim is to withdraw all national suicide indicators by 2011 I understand.

Lord Ramsbotham in your paper "Suicide is Everyone's Concern" you quote John Donne's "No man is an island entire of itself, everyman is a piece of the continent a part of the main.....everyman's death dimishes me because I am part of mankind, Ask not for whom the bell tolls for it tolls for thee."

Thank you again, maybe one day we all really will "learn lessons"......the ones about humanity hopefully!

Submitted by Dee Speers

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative 7:10 pm, 18th May 2009

My Lords, it is partly not to delay unnecessarily the Minister's reply to the speech that we have just heard that I curtail my remarks. With this scattergun of a Bill, it is impossible to avoid doing what the noble and learned Lord, Lord Lloyd of Berwick, has described as jumping from one point to another. I shall jump from one to no more than three others.

The first is that I welcome the Government's objective—we all do—of modernising and tidying the law relating to coroners. I regret to say that what I welcome most are the two points from which the Government have withdrawn since the publication of the Bill. The first is that we will not have special coroners appointed by the Secretary of State in certain inquests in the sure and certain hope that the coroners will not prove difficult.

The second is that, since last Friday, the Secretary of State will not be able to dispense with an inquest jury by issuing a certificate in qualifying circumstances. That is immensely important and welcome, as the Minister knows very well, because the Government's characteristic swipe at jury trial was unacceptable. In recent times, this House has had to deal with many attempts to curtail jury trial. To my recollection, they have all been generated much more by concern for administrative convenience and economy than for concern for public confidence in the justice system. For example, it is far from uncommon for families to harbour suspicions of cover-up at an inquest, especially where some big beasts are involved in the proceedings. That is just where the random selection of a jury is so important and reassuring, because, drawn from the community at large, as we all recognise—or should—they can look at evidence with the ordinary shrewdness and probable scepticism that sees them through their everyday lives. That is good for public confidence, and that is why we have relied on it for so long. Mr Straw's latest recantation is very welcome and I hope that we shall have an undertaking during the wind-up speech tonight that there will be no attempt to unpick that withdrawal.

Next, I express—rather lightheartedly, but not wholly—my sympathy for coroners when they come to contemplate in their part of the Bill the subtly and mysteriously varied states of mind for which they will be required to examine themselves. It would weary your Lordships if I were to identify line by line where the items in this menu are to be found, but a glance at the first few pages of the Bill and at Schedule 1 reveals the following questions that, on occasion, the coroner will have to ask him or herself: "Have I been made aware?" "Have I reason to suspect?" "Have I reason to believe?" "Do I think?" "Does there appear to me?" "Does it appear to me?" "Am I satisfied?" "Am I of the opinion?" "Have I reasonable grounds for believing?". Even a senior coroner will have reasonable grounds for believing that a different mental state is intended to be described by each of those varying tests, but they will not know what they are. I hope that the Minister will undertake to consider whether the coroner's lot may be made a little happier in that regard. It should not be difficult. It is very important that coroners are not faced with difficult mental gymnastics.

Moving on from coroners, I, too, voice my disappointment that the Government have opted for a step-by-step approach to the law of murder—and very modest and hesitant steps they are. I entirely endorse what has been said about the approach to the law of provocation. I personally think it quite wrong that special provision should be made to remove from consideration the fact of sexual infidelity. That is entirely mistaken and I hope that it will be corrected in Committee. The Government have rejected the Law Commission's recommendation for a three-way classification of homicide offences—first and second-degree murder and manslaughter—which the commission thinks would better equip us to deal with the "stresses and strains" on the law in this field, as it puts it. Those stresses and strains are manifest, as we all know. They have also rejected the recommendations on the appropriate labelling of offences and sentencing.

Among the many advantages that the commission's approach would have is the ability to make a departure from what I regard as the deeply damaging mandatory sentence of life imprisonment for every murder. Here, I reluctantly depart from the policy of my party, but I share with it a commitment to honesty in sentencing—it is just that that commitment leads me here to the opposite conclusion.

Before I turn, lastly, to an opportunity unfortunately missed, I come briefly to an opportunity unfortunately taken. It is to be found in Clause 61, in which the Government propose to flout the wise principle that there must be an end to litigation. Only last year, as we all know, the issue of a further free speech clause being added to the provisions of the Public Order Act 1986 was very fully debated. I will not go over it all again, as we have heard the argument powerfully expressed by my noble friend Lord Waddington tonight. Noble Lords understand the point very well. The Government say that it was cursorily debated. It was not: 138 of your Lordships voted in the Division and my noble friend Lord Waddington's amendment was decisively carried. Rather than restore an anomaly whereby a free speech clause remained in the religious hatred offence in the same Bill but found no place in the new sexual orientation offence, the law ought to be allowed to rest as it has so been shaped only 11 months ago. I warmly agree with what has been said by many noble Lords.

The opportunity missed is one that would correct a manifest deficiency in this country's jurisdiction to prosecute for war crimes, crimes against humanity and genocide. I entirely endorse what has been powerfully argued by the noble Baroness, Lady D'Souza. Let me deal with the retrospective question. At present, perpetrators of those offences in whatever part of the world are within the jurisdiction of United Kingdom courts only if the subjects are UK nationals or technically resident in the UK and if the crime was committed after 2001. Currently, there are people technically present in Britain who are suspected of war crimes, crimes against humanity or genocide who cannot be prosecuted here because the crimes were committed before 2001—the date when the International Criminal Court Act came into force. The result is that, although their actions were always criminal in our law, persons present but not technically resident in this country cannot be prosecuted for an atrocity crime committed prior to 2001. That needs putting right, as the case involving four Rwandan citizens the other day has made clear: they had to be let go. That can be done without changing the substantive law retrospectively, which is not what is proposed. All that needs to change is the procedural law relating to jurisdiction. The argument has been pioneered by the Aegis Trust and by the noble Lord, Lord Carlile of Berriew. I hope that, when it comes to be debated in Committee, Ministers will support it.

There is much to be achieved in Committee—a Committee of this unelected House that finds itself having to do the work that the elected House has turned its back on.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat 7:19 pm, 18th May 2009

My Lords, this is yet another elephantine Bill. There is far too much in it; indeed, we have far too much legislation generally. I disagree with the noble and learned Lord, Lord Falconer of Thoroton, on this subject, although I agree with everything else that he said today. It seems that departmental Ministers feel the need to show their power and importance by getting as much legislation as possible through Parliament, whether or not it is needed.

I will confine what I say to the part of the Bill that deals with justice, leaving out coroners. What I will say is not entirely in line with the official policy of my party. I will take up three issues. The first of these is the new provision on murder in Clauses 42 to 46. Murder covers an enormously wide range of evil, from sadistic multiple murder to the mercy killing of a beloved spouse or partner. I have felt for a long time that to cover the width of this crime, there should not be a mandatory life sentence. In that, I agree with the noble and learned Lord, Lord Mayhew. The Government have absolutely refused to consider this. Not only that, but when they asked the Law Commission to review the law of murder, they refused to allow it to consider the removal of the mandatory life sentence, which meant that it originally provided a wholly incomplete report. The Government did so presumably out of fear of what the Mail and the Sun would say.

In the case of mercy killings, a life sentence is usually avoided by a dubious but merciful interpretation of the law on diminished responsibility, as set out in Section 2 of the Homicide Act 1957. That is likely to be made more difficult by Clause 42 of the Bill, with a new test of diminished responsibility that is likely to be more difficult to meet than the existing one. Clauses 44 to 46 also replace the other partial defence to murder of provocation, now to be altered and called "lack of control". The definition of provocation has always been difficult for juries to understand. It creates an artificial dividing line where, in reality, none exists. The abolition of a mandatory life sentence would enable the defence of provocation to be abolished and diminished responsibility to be limited to cases of serious mental abnormality, where detention in a secure mental hospital would be appropriate. The effect of this would be to leave issues such as provocation—and many such cases are now treated as ones of diminished responsibility—to sentencing by the judge.

The second issue is the provisions of Clauses 49 to 51, which cover assisted suicide. I declare an interest as a member of the organisation Dignity in Dying. I am ordinary member, not an office-holder, though my wife is a member of the board. I was an enthusiastic supporter of the Bill of the noble Lord, Lord Joffe. My personal belief is that assisting the suicide of a person who has a few weeks or months to live, and will suffer great pain and distress during that period, is not and should not be a crime. I should like to see the Bill moving in that direction. It does not.

It is a matter of serious concern that the Bill does not merely restate the existing law, but goes beyond it. My concern is with new Section 2 of the Suicide Act 1961, which has been inserted by Clause 49 of the Bill. That new section extends the crime of encouraging or assisting suicide expressly to cases where the defendant has encouraged the suicide of people not known to him or her. That is a potential threat to freedom of speech on this issue. It is not just my view, but that of the Joint Committee on Human Rights. Paragraph 1.165 of its report says:

"We consider that the breadth of the offence remains uncertain and has the potential to have a chilling effect on a range of activities involving reference to suicide or the provision of information or support around end of life decision making. We consider that this chilling effect could engage the right to freedom of expression and the right to respect for private life ... and would require justification".

I do not believe that it is the Government's aim to prevent serious public discussion of issues relating to suicide and proposing, if necessary, a change in the law. The Government's intention, quite rightly, is to stop the repulsive practice of people using their websites to encourage teenagers and young adults to commit suicide. I understand that. However, it seems to be all too possible to interpret Clause 49 as extending well beyond that. For example, the moving BBC television programme that dramatised the journey of Dr Anne Turner to Zurich, with the assistance of her children, to enable her to commit suicide could well be viewed as encouraging others to follow the same path. Indeed, the noble Baroness, Lady Finlay, indicated that that has happened in at least one case. Nevertheless, such programmes should, in my view, unquestionably be legitimate. We cannot insist on silence on such important issues. Clause 49 should be modified to ensure that it extends only to the unacceptable behaviour that appears on some websites and had tragic effect in Bridgend.

I agree with the noble and learned Lord, Lord Falconer, that the Bill is not the right occasion for debating a full-scale change to the law of assisted suicide. That would need separate legislation. I also agree with him that we should debate changes to the law concerning travel abroad to countries where assisted suicide may be legal. I will not go into that in more detail, because I am sure that it will come up later.

The third issue has not been touched on at all so far in the debate, and that is the problem of indeterminate sentences. They were introduced by the Criminal Justice Act 2003 and subsequently modified by the Criminal Justice and Immigration Act 2008. Indeterminate sentences may be given for specified offences involving violence. When someone is convicted of such an offence, the judge may be expected to impose an indeterminate sentence. This overrides the upper limit of sentence provided by law and is akin to a life sentence because the prisoners do not know what their final release dates will be. At the time of the conviction, the judge imposes a minimum tariff, but to obtain release after the minimum tariff has been reached prisoners must satisfy the Parole Board that they have corrected their violent behaviour. This usually requires prisoners to attend training courses. The problem is that these courses are simply not available. The result is that prisoners remain in prison long after their tariff has expired, not because of their misbehaviour in prison, but because they have not been able to attend those courses. The consequence of this is obvious and damning.

A briefing paper by the Criminal Justice Alliance gives startling figures. As of 12 February, there were more than 5,000 prisoners serving indeterminate sentences. In fact, 1,487 of those had already passed the date of their minimum tariff, but as of 15 January—only four weeks earlier—only 47 recipients of indeterminate sentences had been released on licence. That is about 3 per cent of those eligible for release. This shows that the treatment required to obtain release is either totally ineffective, hopelessly underfunded or both. Indeterminate sentences met devastating criticism earlier this year in a report by the Chief Inspector of Prisons and the Chief Inspector of the National Probation Service. Degree of violence or a bad previous record rightly lead to longer sentences and always have done. The introduction of indeterminate sentences may have been well meant, but it has been not only a failure but an extremely expensive failure. The scheme should go.

Finally, I strongly support the speeches of the noble Baroness, Lady D'Souza, and others on the proposal that non-residents who are present in the United Kingdom should be liable for genocide and other serious crimes under international law whenever committed. That seems to have the almost complete support of Members of your Lordships' House.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench 7:30 pm, 18th May 2009

My Lords, I should like to draw attention to two issues which the Bill should deal with better. Both relate to Armed Forces personnel who have lost their lives while serving overseas and whose bodies have been repatriated to the United Kingdom, where an inquest into the cause of death must be held. The noble Baroness, Lady Fookes, has spoken forcefully on the first issue, and I underline and add to the points that she made.

The House is aware of the significant number of such service deaths—now well over 300 in the past six years—mainly on operations in connection with our deployments in the Middle East and Afghanistan. Most bodies have been flown into either RAF Brize Norton in Oxfordshire or RAF Lyneham in Wiltshire. The coronal resources available in Oxfordshire and Wiltshire were overwhelmed and there were long delays in holding inquests. The untold anguish, frustration and anger that this provoked in the deceased's next of kin and their supporters is also well known. Belatedly, the Government provided more to strengthen local arrangements, and the backlog of cases has been much reduced. However, arrangements for accommodating and helping the deceased's next of kin or other relatives attending these inquests are still unsatisfactory.

One beneficial outcome of concentrating inquests so geographically has been that the expertise of the Oxfordshire and Wiltshire coroners in dealing with the tragedies of operational deaths has been built up and is now highly respected. We will, I fear, see our Armed Forces involved in warlike operations for some years ahead, and the risk of further service deaths remains high. Tragically, six more have died in the past 10 days.

In their Command Paper 7424, the Government undertook to treat fairly all those in the Armed Forces, their families, and veterans, because of the special nature of their duties and commitment. Surely there must be special legislative arrangements for military inquests. We have learnt the hard way how to do it, and we must ensure that this lesson is not forgotten. Responsibility must be laid on the Chief Coroner to ensure that there is and will continue to be a special military coronal group or team that takes from what we have learnt and keeps the expertise alive and updated in the years ahead. It would not accord with the Government's commitment to do their best for the Armed Forces and their families to ignore the need for a specialist coronal centre of excellence to deal with the repatriated bodies of Armed Forces personnel. It is a real live issue now and should not be treated as some transitory problem for which primary legislation is not needed.

A further aspect of these inquests is that too often the MoD is represented by counsel, while families have no automatic recourse to legal aid. Government counsel, the costs of which now run into millions of pounds, are said to be present to assist the coroner. An inquest is not an adversarial court, so it is asserted there is no need for the deceased's next of kin or family to be legally represented. Provision is said to be available in special cases to consider an application for legal aid, but it is complex and unhelpful. The noble Lord, Lord Thomas of Gresford, outlined a special example of this. Extra costs on the legal aid budget are also prayed in aid of refusal, which is offensive to the bereaved and does not chime in any way with the undertaking to deal fairly with the families of service personnel. This was a specific cross-government undertaking, so it is as much a duty for the Ministry of Justice, the devolved Administrations and the Ministry of Defence not to cavil over the cost of making such provision.

Indeed, now that the military inquest coroners have built up their expertise, perhaps the MoD should no longer have to field counsel at these hearings to assist the coroner: otherwise, it might be for the coroner who will preside at the inquest to authorise legal aid for the deceased representatives, if requested, whenever the MoD is represented by counsel. If the Government are still not prepared to assist relatives with legal aid, surely they must restrict the MoD's reliance on the use of such counsel.

Noble Lords will have seen that Clauses 14 and 15 deal with the death of service personnel abroad but are limited to covering arrangements for investigations in Scotland and investigations in England and Wales despite the body being brought to Scotland. Although I do not question the need for special arrangements to deal legislatively with the application of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act, will the Minister give examples of why the Secretary of State would, as Clause 14 states, think it,

"appropriate for the circumstances of the death to be investigated under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act"?

It is not clear to me whether this is a specific issue or just a catch-all phrase to cover any unforeseen eventuality.

I have one further important point to make about Clause 14. Subsection (2) refers to a person as being engaged in "active service" or in,

"activities carried on in preparation for, or directly in support of, active service".

Clause 14 goes on to state, in subsection (6), that,

"'active service' has the same meaning as in section 8 of the Armed Forces Act 2006".

Section 8(3) of the Armed Forces Act states:

"In this section 'active service' means service in ... an action or operation against an enemy ... an operation outside the British Islands for the protection of life or property; or ... the military occupation of a foreign country or territory".

However, the whole section is about just one offence: desertion. Is it not just plain wrong and abhorrent to rely on a section about desertion when considering those who were tragically killed on operations while on duty? A better formulation must be found. Moreover, active service, as defined, is not wide enough. It does not cater for a defence attaché who is murdered in a friendly country, the sudden untimely death of service personnel who are mentoring friendly forces and are not engaged in conflict, or anyone in the Armed Forces who is unlucky enough to come to a violent end because of an accident or incident overseas, on land, at sea or in the air and far from any combat or operational training area. When the bodies are repatriated and an inquiry is held in Scotland, all next of kin and families deserve the same fair treatment that is promised to the Armed Forces in the command paper, The Nation's Commitment. Why should Clause 14 be limited to those who have died when on operational duty?

To conclude, the Bill must provide for continuing coronal expertise—a coroner's centre of excellence—in the hearing of military inquests. It must ensure fairer treatment for the deceased's relatives by giving them aid to be represented legally at those inquests where it is evident that the MoD will be fielding counsel. Clauses 14 and 15 should cover inquests for any service person who meets an untimely end overseas and for others who are subject to service law at the time of their death, not just for those killed on operations. The active service definition used in the Bill is inadequate and offensive. Do the Government recognise these weaknesses in the Bill? Will they table appropriate amendments to be considered in Committee?

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench 7:39 pm, 18th May 2009

My Lords, about a year or so ago when we were involved with the Criminal Justice and Immigration Bill, I made the rather irreverent suggestion that, as an obverse to the Bill of Rights of 1689, we might consider that Parliament be limited to no more than one criminal justice Bill a year. Little did I know then that we would be involved with legislation dealing with the anonymity of witnesses within a matter of months only, and that indeed we have this Bill now, which is one of the most compendious of Bills in relation to miscellaneous provisions of the criminal law.

I speak with some feeling as a former circuit judge. Time and again one was confronted with a brand new labyrinth that somehow or another the innocent judge would have to find his way through, even without the mythical ball of twine. Having thought that one had somehow or another managed to find a way through it, it was only to discover that Parliament was already discussing the next labyrinth that would be placed before the humble judge.

I would like to confine my remarks to Part 4, which deals with sentencing. I do so in the knowledge that many people who are concerned with the administration of the criminal law feel deep disquiet with regard to the attitude taken by the Government in relation to sentencing reform. I appreciate that many people at all levels feel that there are grave dangers in what is proposed in that part of the Bill. I appreciate that a great deal can be argued in favour of change in relation to sentencing but I doubt very much whether the Government have hit upon the right approach in this case. I share the fears of those people and feel that, despite the arguments that are advanced by Government and indeed the solid basis for their policies laid down in the excellent report of Lord Justice Gage and his working party, nevertheless there are very considerable dangers and complexities.

I invite the House for a moment to consider these matters. My submission is that in the first place the Government are involving themselves in a very revolutionary development in so far as it seeks to curb the discretion that sentencing judges have in passing sentence. Often one is told that the law has been changed and that judges are now constrained by changes in the law. I do not think that happens when you make a sentence a subject of either maxima or minima. All you are doing is moving the area within which the judge exercises discretion. Whenever you deal with discretion per se, you are treading on a path that is extremely dangerous and could ultimately lead to tyranny. I do not suggest that that is brought about by Part 4 but it could lead in that direction.

The situation up to now has been that the Court of Appeal has given guidelines from time to time, the advisory body from 1998 has given guidelines, and the Sentencing Guidelines Council under the 2003 Act has given guidelines. There have been ample guidelines. They have, however, been guidelines and no more. The relevant section of the 2003 Act—Section 172—says that the sentencer shall have regard to the sentencing guidelines in relation to the offender's case. He is fully entitled to depart from them, although the sentencer has the duty then of spelling out why and that becomes a matter of record. Under Clause 111 of the Bill, however, something entirely different occurs. The sentencer there is obliged under the wording of that clause to follow—not to have regard, but to follow—and that situation is entirely different. To my mind, it creates a mandatory situation where there is that obligation, in the first instance at any rate, upon the sentencer to follow the guidelines. It is true that there is an escape clause which entitles the sentencer to have regard to the interests of justice and to justify not following the guidelines in a proper case. That means, however, that the onus in the first instance is upon the sentencer to act within that peremptory order in Clause 111.

One does not know how this will be interpreted by the Court of Appeal in years to come if this provision becomes law. In the case of R v Salina Martin, a case determined by the Court of Appeal in 2007, it said simply that guidelines are guidelines—no more, no less. In other words, this was a liberal interpretation that does not affect the sovereign authority vested in the sentencer ultimately to determine sentence. This has created a whole new situation. I suggest that it was wholly unnecessary. The Sentencing Guidelines Council was working well; the Secretary of State for Justice at Second Reading in the other place went out of his way to praise its efforts and achievements. It had only been in existence for a few years and was now bedding down. There was ultimately no reason at all for having it extinguished and recast in the way that Part 4 brings about.

By acting in that way, the provision creates a situation where there is a flouting of Parliament and a voiding of the processes of Parliament for this reason. If the situation brought about by Part 4 creates a mandatory responsibility on the judge—I believe it does in the first instance—it means that the Sentencing Council can from time to time, provided it has made the proper consultations set out in Part 4, make new law. That is a law, however, that will never be scrutinised by Parliament.

It is ironic that Lord Justice Gage's working party—I have the highest admiration for those persons and for the work they did—ultimately decided to reject what is called the "Minnesota and North Carolina rigidity of sentencing" system and opted for the New Zealand system. The wording of Clause 111 is directly lifted from the Sentencing Act 2002 of New Zealand. In New Zealand, however, those changes have to go before the legislature. I cannot remember whether it is by way of a negative or positive provision; it does not make a great difference.

The noble Baroness, Lady Stern, made an excellent point when she quoted the Secretary of State for Justice as saying that these proposals had nothing at all to do with prison population. Well, I could well have been fooled. If one looks at the excellent report of Lord Justice Gage's working party, the first paragraph of the introduction deals with nothing but prison population. Therefore Lord Justice Gage and his colleagues must have regarded this as the most important consideration. Did that august body fool itself or was the situation clear from the very start that all this was brought about in the shadow, as it were, of the problem of prison population?

I make this suggestion. In Britain we incarcerate more people per 100,000 than any other country in western Europe, with the sole exception of Luxembourg. We have never examined the position in detail and, unless and until we do that, we should not seek to act piecemeal. There may be dozens of reasons. Many are suggested without any specific findings by Lord Justice Gage's working party. We should, however, go deeply into the whole question of why it is that this happens. Are the people of England and Wales more evil or more disposed to crime than those of other countries? Is it because we have so many statutes that carry a sanction of imprisonment? Is it for some other reason or perhaps for many other reasons? That would be the beginning of wisdom. We should therefore not take any drastic action such as we have in Part 4 unless or until that is done.

Photo of Lord Taverne Lord Taverne Liberal Democrat 7:49 pm, 18th May 2009

My Lords, I shall make a brief comment on the section of the Bill that deals with assisted suicide. Our law is in a mess. It needs urgent clarification and I hope that it will be amended at a later stage. Why is reform urgent? It is because when people commit what the law says is a serious crime, the Director of Public Prosecutions will not prosecute. As we have now learnt, he has not done so in something like 100 cases, which is an extraordinary situation. The urgency is underlined by an important report that appeared in the Times last week stating that more and more desperate people are asking nurses how they can help to get them to Switzerland. They are asking urgently for a code of conduct.

In the past, the injustice or absurdity of a law has often forced change because juries would refuse to convict. When the offence was stealing and anything worth more than five shillings was a hanging offence, juries had to make two findings; namely, did the accused steal and what was the stolen object worth? If an accused stole, say, £10, the jury would often find that, "Yes, he was guilty of theft, but the £10 stolen was worth four shillings". In due course the law was changed. In earlier times one could also escape the gallows by claiming benefit of clergy. An accused could claim to be a clergyman if he could read the 51st psalm. Those who were illiterate would learn it off by heart. After 1547, the privilege of claiming benefit of clergy was sometimes extended to Peers of the realm. But that law also fell into disrepute.

The position we have now reached is no less absurd. The Director of Public Prosecutions does not believe a prosecution for assisting suicide in Switzerland would result in a conviction, which is not surprising. Every opinion poll shows support of more than 80 per cent for legalising suicide, which includes Catholics and Protestants as much as non-believers. Church leaders—I am sorry that none are present—are completely out of touch with their congregation on this issue. This popular support is not based on ignorance or a temporary fashion. It has been consistent over a long period and is based on the personal experience of miserable deaths of relatives and friends.

Recently, the former Director of Public Prosecutions, Sir Ken Macdonald, said on Radio 4:

"I think we have reached the stage ... where prosecutors are effectively deciding that in an entire category of case they're not going to apply the public interest in favour of a prosecution. That opens up the question as to whether the law is still appropriately framed and I think it is an indication that we may have moved, society may have moved, beyond the law and that the law needs to catch up a bit".

In the same programme, the noble and learned Lord, Lord Bingham, made a statement which has already been quoted. He said that,

"we are approaching a point at which the law does not match the expectations of reasonable people".

The noble and learned Lord's remedy for this flaw is very humane and completely in line with public opinion and actual practice. He said:

"I think the best possible situation is where you've got a general practitioner, knows the family, knows the family's wishes, knows the patient, appreciates the extent to which the patient is in pain and gently ups the dose of painkiller to a point where it is in fact lethal", which happens all the time.

Let me remind your Lordships of the present law. To withdraw life support, to turn off a ventilator or to switch off a life support machine—a positive act that directly causes death—is not a crime. To provide a lethal drug that leaves it to the patient to decide whether or not to use it is a crime, with a penalty of a possible 15 years' imprisonment. To increase a dose of painkillers gradually until it proves lethal, as the noble and learned Lord, Lord Bingham, suggests, is not a crime. To administer sufficient painkillers in one dose that proves lethal is a crime, punishable by 14 years' imprisonment. To help someone commit suicide in Switzerland is not a crime for which you will be prosecuted. To assist suicide in Britain, where those who are forced to go to Switzerland would much prefer to die, is a crime for which you will be prosecuted and is subject to a penalty of 14 years' imprisonment.

Only the most consummate casuist can support the law as it stands. It is not sustainable logically and, much more important, morally. In the words of Bumble the Beadle:

"The law is a ass".

The least we can do is clear up the terrifying uncertainty for those—there are more and more of them—whose relatives desperately want to go to Switzerland for relief.

Photo of Lord Moran Lord Moran Crossbench 7:55 pm, 18th May 2009

My Lords, I feel very strongly about the enormous importance of unrestricted freedom of speech in our country. This does not of course apply to the incitement of hatred, which I believe is already an offence, but it should apply to the protection of rational debate and discussion, and the expression of opinion on anything, including homosexual practices. Last year, I voted for a free speech clause in the Criminal Justice and Immigration Act 2008, which was put forward by the noble Lord, Lord Waddington. I was concerned about reports that people who expressed their deeply held religious convictions on homosexuality had been harassed by overzealous police officers who sometimes threatened them with jail for what was described as homophobia.

I therefore deplore the insertion of Clause 61. It seems extraordinary that the Government should put this forward, so showing an apparent indifference to the preservation of free speech. It is interesting that leading homosexuals such as Peter Tatchell and Matthew Parris should support a free speech clause. The churches are clearly against Clause 61 and I wholly agree with the excellent speech made by the right reverend Prelate the Bishop of Southwell and Nottingham. Liberty, an organisation which seeks to protect civil liberties and promote human rights for everyone, reportedly opposes the Government's approach on free speech grounds.

I believe that the Government, and any Government of our country, should do all that they can to protect and promote freedom of speech and never compromise on this. They ought to put it much higher among their priorities.

Photo of Baroness Dean of Thornton-le-Fylde Baroness Dean of Thornton-le-Fylde Labour 7:57 pm, 18th May 2009

My Lords, the noble Baroness, Lady Fookes, and the noble and gallant Lord, Lord Craig, referred to coroners and inquests related to military personnel, which is the area on which I, too, shall concentrate. This is a long-awaited Bill. Certainly, from the area in which I am interested, it is a long time coming, so I very much welcome it. I am also delighted that my noble friend Lord Bach is the Minister taking this Bill through. He was a Minister at the MoD at the time of the pensions Bill for the Armed Forces and he assisted in making some considerable changes. So I am quite optimistic that we may get a listening ear to what we are seeking.

A number of noble Lords have referred to the decision on Friday to change the Government's stance in the Bill in regard to inquests held in secret. I think that I could be forgiven for coming to the conclusion that one or two of those noble Lords were rather disappointed that that had happened and that they were looking forward to some fun in the Chamber had that been left in the Bill. I have to say that had that been so, I would have joined in the fun. I certainly did not support secret inquests.

Last July, a consultative meeting took place of bereaved families who had had experience of Oxford and its coroner. They had lost loved ones—men, women, sons, husbands, daughters and wives—in Armed Forces operations. I was privileged to be at the end session of that day, which was organised by the Royal British Legion and supported by the War Widows' Association. I must declare an interest as vice-president to the president, the noble Baroness, Lady Fookes. At the end of that day, which was very moving—these families had experienced delays and problems in trying to get an open decision quickly for their loved ones—they made it clear that what they wanted was a system in which they had confidence. Certainly, with the extra resource that has been put into Oxford, that confidence was starting to build up. From their experience, it is clear that a coroner dealing with military inquests has to be trained. If they are not trained in military investigations, the inquest will not give families confidence or assurance that the outcome will give them closure and allow them to continue their lives.

I should like to see an amendment ensuring that one of the deputy senior coroners will be specifically responsible for military inquests. Alternatively, before a referral can be made, the Chief Coroner should ensure that whoever is dealing with the case is trained. I accept that there well may be a difference between fatalities in the Armed Forces suffered in normal day-to-day work and training, and those suffered in operations overseas. That may be something we need to consider.

Part 6 of the Bill refers to representation. I would like the Bill amended to provide legal representations for families. There is no doubt that there is full legal representation at the inquest. We are told it is to help the coroner; we would like the families to have legal representation to help the coroner too. It would give a much more balanced outcome. Having said that, I am not aware of any family who has had a military fatality which has been refused legal support at an inquest, but it would be good to see such a provision in the Bill.

The facilities for families are also of concern. They are in a traumatic situation, with no privacy—it is all over the papers—their lives are turned upside down and they have to face the delay we have been talking about. When they turn up for the inquest, there is not only a moral requirement but a responsibility of duty of care to ensure that the facilities they have are good and help them face the inquest. That is not always the case at the moment and I would welcome discussing it in Committee.

I should also like to see an amendment to provide that an inquest is by jury where the death has occurred during military training, or, more importantly because of recent events, the individual is under 18. We have had the Deepcut report, with all the concerns there are about it. With a fatality affecting someone under 18, it would help if the inquest took place in front of a jury. It would help the families and would help avoid some of the heartbreaking situations we have seen, with so many reports of families still not satisfied.

These are a few amendments that I would like to see to the Bill, but, my goodness, they would make an awful lot of difference to the well-being of families who have lost loved ones in the service of their country. They would also go a long way to help meet the commitment that the country has to those people.

Photo of Baroness Warnock Baroness Warnock Crossbench 8:04 pm, 18th May 2009

My Lords, this Bill has been called a ragbag, if not a dog's breakfast. I suppose the items in the Bill are linked together vaguely by a concept of justice, but like my noble and learned friend, Lord Lloyd of Berwick I pity the Minister when he has to make some sense of all the completely different topics that have been touched on today.

I shall speak briefly on one topic: Clauses 49 and 50 seek to amend the Suicide Act 1961 with the aim of bringing it up to date. What I say will be a footnote to what has already been said by other noble Lords, including the noble Lord, Lord Taverne. I understand and applaud the Government's desire to be able to prosecute those who publicise suicide over the internet, and, for whatever motive, malicious or missionary, positively encourage young people to kill themselves. My noble friend Lady Finlay has spoken very eloquently on this subject and I agree with everything that she says. Clauses 49 and 50 would criminalise in exactly the same way, and to the same degree, these dangerous people who are putting young lives at risk and who are broadcasting their thoughts and encouragement to the world at large as the other group of people who, perhaps with agonies of conscience, assist individuals who they know and love to end their lives when living is no longer tolerable to them.

These two target groups are so radically different, one from another, that they really cannot be treated in the same way by the law. From the cases we know about, the notion of encouraging suicide is miles away from the thoughts of those who often are persuaded only with great difficulty to help their relatives to go abroad. I am thinking of the well publicised case of the Turner family where the three children were eventually persuaded that their mother, a doctor, really did want to end her life before it became more intolerable than it was. There was simply no question of encouraging suicide because they did their very best to dissuade her from going, but at last were won over and in the end felt that what they had done was right. If the law treats cases that are so different from one another as if they are the same, that will lead to total confusion. As the noble Lord, Lord Taverne, reminded us, it goes without saying that the issue of accompanying relatives abroad has become urgent because of the much-publicised recent cases. Also, none of the more than 100 people who have done this has been prosecuted, although there is no doubt whatever that under the 1961 Act they were assisting a suicide and therefore committing a crime.

Some lawyers think that the status quo should stay as it is or that the law as it would be amended by Clauses 49 and 50 will be adequate. For myself, I believe that the present situation is fraught with too much uncertainty. The fact is that the Director of Public Prosecutions has not clearly stated why no one has been prosecuted. To say that this is because no jury would convict is to give away the situation, to give away how people in general, through the jury, feel about the act of assisted suicide. It acknowledges that people do not regard it as a crime and therefore they would not find guilty a person who had done it. To say that it would not be in the public interest is to explain nothing. So there is no clarity in the law at the moment, and a law that never leads to a prosecution is both futile and open to abuse. We need a clear law that contains safeguards so that only those who really want to die and who are able to prove it will be taken to Switzerland.

In saying that the law should be changed, I am merely echoing the words of, among others, the noble and learned Lord, Lord Bingham, and Lord Justice Scott Baker, who asserted that the law must be changed and that it is the task of Parliament to change it. The present Bill affords Parliament a chance to do that and amendments will be brought forward at a later stage that can be discussed in detail.

Photo of Lord Redesdale Lord Redesdale Liberal Democrat 8:10 pm, 18th May 2009

My Lords, many noble Lords have complained that this is a ragtag Bill or a dog's breakfast, as the noble Baroness, Lady Warnock, just said, but for some of us this is a fantastic thing. Those involved in legislation to do with heritage or archaeology always find their issues tagged on the end of something else, so to find them in this Bill is a wonderful feeling. Before I thank the Minister for accepting the amendment on the coroner for treasure, I should say that I am almost disappointed because I have with me a briefing with coloured tags for an incisive and decisive argument. I have never been so well prepared for an amendment, but he has shot the fox, as the expression goes. However, I thank the Minister for accepting the arguments and for the work done by other noble Lords, including the noble Lord, Lord Howarth of Newport, and all those in the All-Party Parliamentary Archaeology Group.

However, I think that the Minister would be upset if I said that I would leave it at that and that I was going to sit down, so there are a few points that I want to make. I thank the Minister for putting something back that had been in the draft Bill, so these are almost government points. Three other small points that would be of incredible value to those of us in the heritage community were contained in Schedule 3 to the 2006 draft Bill. If they were included, life would be a great deal simpler for those in the heritage sector. They all concern aspects of treasure. Some noble Lords may not be aware of the growing number of finds due to the Portable Antiquities Scheme, which is now looking at much stronger funding due to the Government's work. Treasures are being brought to light by metal detectorists in areas the majority of which would have been destroyed by the actions of industrialised farming. Noble Lords can go to the British Museum to see the treasure exhibition or catch it on tour to appreciate the value of the finds that are coming up through the Portable Antiquities Scheme.

The first of the three amendments that I ask the Minister to replace in the Bill, because they would make life a great deal easier, is to widen the obligation to report finds of treasure to anyone who comes into possession of treasure. At present, the duty to report treasure in the Treasure Act 1996 rests solely with those who find treasure. The British Museum has an agreement with eBay to monitor its site for potential treasure, although it is thought that many items of treasure are sold by third parties without applying the appropriate due diligence tests. The amendment would encourage best practice.

I have had a number of meetings with eBay on this after the passing of the Dealing in Cultural Objects (Offences) Bill, a Private Member's Bill that I had the joy of taking through your Lordships' House. When I found the legal representative for eBay and said that I would like to talk to him about this, his first answer was: "How the hell did you get this number?". It is not the easiest thing tracking down eBay. I am not saying anything about the quality of the company, but there is a major problem with the fact that a market could be created in finds. We know from the English Heritage report on nighthawking that the illicit selling of finds is a major problem. If this market is created on eBay and takes hold, we will see a large number of our sites raided. Of course eBay has made agreements with other European countries on this. We asked it why it had not signed an agreement in this country and it said that it was because our legislation is not as strong as legislation in other European countries, which I believe says something about how we prioritise our heritage. This is an extremely important amendment and I hope that the Minister will look at it kindly, because there are a large number of APPAG members who are going to enjoy a few discussions on this. If he just accepted what of course was a government amendment, against which it is going to be very difficult to argue, that would shorten the course of the Bill.

The second point is to give the coroner powers to require anybody who reports the discovery of found treasure to deliver it to the coroner. We know of a case where Bronze Age axes were reported to the coroner but some of the best of them were kept out of the report, which meant that there was a real problem in finding out about their existence.

The third point, which I think is extremely important in making sense of the Treasure Act at all, is to allow more time for prosecution to be brought under the Act. The case that I just mentioned took a long time and, even though the police were prepared to prosecute, the statute of limitations, which at present is at six months, is not long enough to deal with the process. If a coroner's report is taking a year—or in some cases two years—the statute of limitations kicks in and the whole system is made a farce.

These would be three small but valuable changes. They would not be very costly but would make the job of the coroner for treasure announced by the Minister far more relevant. I believe that they would make our heritage far safer from that small minority of people among the metal-detecting community who use metal detecting for profit rather than for extending the knowledge of our heritage.

Photo of Lord Hylton Lord Hylton Crossbench 8:17 pm, 18th May 2009

My Lords, most of this Bill is well outside my knowledge and experience. However, I know that coroners' inquests in Northern Ireland proved unsatisfactory during the long years of violence. That was partly because of major delays between deaths and inquests into them and partly because of the triangular low-level warfare that was going on at that time. There must be ways in which the workings of the historic coroners' courts can be improved and better satisfy the relatives of those who have been killed.

I intervene for two reasons only. The first concerns Clause 61 and freedom of speech. After only one year, the Government seek to remove the amendments that your Lordships made on 21 April 2008. Surely it is too soon for it to be known whether the amendment has produced adverse or unintended consequences. I fear that Her Majesty's Government may have caved in to pressure from the fashionable homosexual lobby. What evidence is there that this important defence, protecting freedom of expression and speech, has done the slightest harm? The burden of proof is surely entirely on the authors of the Bill. There was doubt, and the amendment tabled by the noble Lord, Lord Waddington, removed it. Innocent people should not have to be investigated unnecessarily.

I agree with my noble friend Lord Moran, who, alas, is not here, that so-called homophobia should not be made into a crime. When words are in fact threatening or intended to stir up hatred, they should be treated as an offence, but, where they express genuine opinion criticising certain behaviour in a reasonable way, they should be given full protection. I urge the House to resist Clause 61 and to leave the Public Order Act 1986 as it is. Free speech is always being whittled away; we should rally to its defence.

My second point arises from Clauses 49 to 51 about suicide. Suicide is an awful thing whose repercussions affect many others apart from the deceased. There is a temptation for some who would be afraid to cause death by murder or manslaughter to achieve the same end by the suicide of their victim. That is why, rightly, the Bill makes encouraging or assisting suicide a serious offence, punishable by up to 14 years' imprisonment. On 20 March, when the Bill was in the other place, some Members, led by the right honourable Patricia Hewitt, proposed an amendment to create a new exception to the provisions of the Bill, which would have made encouraging or assisting suicide lawful if the death occurred in another country where self-destruction was allowed. That would run directly counter to the purpose and intentions of the Bill.

I argue that many people, especially the feeble-minded, the frail, the elderly, the confused or the chronically ill, are particularly vulnerable. They deserve our protection against coercion or persuasion to take their own lives. Exceptions to the offence of encouraging or assisting suicide will place temptations in front of would-be exploiters who would benefit from someone else's death. On the contrary, we should be providing safeguards for a vulnerable group of people. I urge your Lordships to resist amendments of the kind described just as strongly as you would defend free speech.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench 8:21 pm, 18th May 2009

My Lords, at the beginning of 2008, following the delays in implementing many of the recommendations that arose from the murder of patients by Dr Harold Shipman and the subsequent murder in 2002 of patients at Leeds General Infirmary by the nurse Colin Norris, I tabled a series of Questions to the Government, which were answered on 25 March and 21 May 2008. In response, the Government indicated their intention to legislate, and I welcome large parts of the Bill before us today.

The Shipman murders led to an inquiry that published six reports and 228 recommendations, at a cost to the public purse of £21 million. Weaknesses were discovered in the death certification process, in the requirement for one doctor alone to certify a death and to decide on referral to a coroner, and in the failure to cross-reference notified deaths and to look for trends and patterns. Among the recommendations were many other proposals to strengthen the system of public protection.

After the trial, the Shipman inquiry, chaired by Dame Janet Smith, decided there was enough evidence to suggest that Shipman had probably killed around 250 people, of whom 218 could positively be identified. About 80 per cent of his victims were women. In the case of nurse Colin Norris, he was convicted on 8 March 2008 of murdering four elderly patients and attempting to murder another.

I recognise that the Bill goes some way to try and prevent a repetition of these appalling crimes, but I should like to hear from the Government how many of the 228 recommendations of the Shipman inquiry have been incorporated into this legislation and what further measures will be needed to deal with the failings identified by the Norris inquiry.

In addressing end-of-life issues, this question of public protection must surely be our paramount concern. It is why the Government have rightly resisted any attempts to use the Bill to make assistance with suicide or the killing of patients legal. In any event, during the life of this Parliament in your Lordships' House we have had the benefit of a Select Committee and several Private Members' Bills, while, on the most recent vote that was taken in this House, the proposal to permit assisted suicide was defeated by a substantial majority. Constitutionally, the correct place for this matter to be tested is surely in another place. I agree with the Minister that to use the Bill in that way would be quite wrong.

In the context of this Bill, there would be no logic in making the law more restrictive in dealing with doctors and nurses who set out to take the lives of their patients, such as Shipman or Norris, while simultaneously giving a green light to the approval of euthanasia. By amending the Suicide Act 1961, this Bill also rightly outlaws predatory websites that encourage or promote suicide. It introduces an offence of encouraging or assisting suicide. It would make no sense and defy logic—and, indeed, introduce a dangerous, contradictory fault line—if we were to make it an offence to promote suicide on the internet and then to approve the promotion of suicide overseas.

The prohibition on the promotion of suicide is a good and welcome provision, and nothing should be placed in the Bill which contradicts or weakens our determination to protect the vulnerable. Our laws are tough, but they are administered with compassion and common sense. It is not a fudge, as some noble Lords have suggested, to leave open the possibility of prosecution where motives are shown, for instance, to be pecuniary gain. Merely because some people have not been prosecuted is not a reason for setting aside a law that has protected many thousands of people. I would briefly remind your Lordships that when it was decided to allow voluntary euthanasia in Holland it led to involuntary euthanasia. Nearly 1,000 deaths a year are involuntary out of a total of 4,000. So we need to be clear where we are proceeding if we give the green light to what is being suggested. It is, of course, the reason why all of the Royal Colleges and the British Medical Association take the view, shared by the Government, that the law should not be changed.

My second point—and here I will follow my noble friend Lady D'Souza, the noble Baroness, Lady Williams of Crosby, the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady O'Cathain—concerns the question of genocide charges and bringing charges against those who have committed crimes against humanity in other jurisdictions. Several of us in this House, while Members of another place, took part in the parliamentary passage of the War Crimes Act 1991. That dealt with suspected Nazi-era war criminals who had made their way to these shores during the chaos that followed the Second World War. During those proceedings, the noble Lord, Lord Carlile of Berriew, made a memorable and moving speech, where he began by drawing our attention to what he described as an "unregisterable interest". Two of his grandparents, two of his uncles, an aunt and many cousins were killed during the Holocaust. They were doctors, teachers and postmasters—normal people murdered because of their racial origins. I know he would not mind my bringing this painful memory to the attention of the House, because his purpose in 1991 was to remind his listeners that they should not forget the victims—not just the dead, but also the living: especially the living, who often crave justice just as any other victim of any so-called "normal" crime would do.

The Nazi Holocaust holds a particular horror for the world, and rightly so. That is why Parliament eventually passed the War Crimes Act 1991, which specifically related to crimes committed in Nazi-occupied Europe. However, the victims and survivors of modern genocides and crimes also want justice.

My noble friend Lady D'Souza raised the issue of the Rwandan suspected genocidaires, who can neither be extradited to face trial nor prosecuted here. I visited Rwanda in 2004 and published a report in October of that year through the British charity the Jubilee Campaign. In paragraph 3.28 of the report, I described the Murambi genocide site in south-west Rwanda. Murambi was a technical college, which, as I said,

"served to remind us of the hellish reality of Rwanda's recent past."

The school is a collection of long, single-story brick buildings, situated on the top of a hill, with 66 classrooms. At the beginning of the genocide, many Tutsi Rwandans sought safety in numbers and gathered in churches, public buildings and schools. Thousands of men, women and children—including the children from a nearby orphanage—fled up the hill to Murambi. The authorities told them that they would be safe there, but then cut off the water and electricity supplies. They survived for two weeks until 3 am on 21 April 1994. Then, Interahamwe militiamen—Interahamwe means "those who work together"—and soldiers arrived, and they surrounded the school. Armed with guns and grenades, they began killing. They killed for over six hours. By the morning, thousands of civilians were dead. Only four survived, unconscious and left for dead by the murderers.

In my report I described how:

"56,000 bodies were found there, and we walked from classroom to classroom, viewing 852 remains that have been disinterred. Within a few days of the massacre, a volleyball court had been built on top of one of the mass graves which, we were told, the French peacekeepers then used in their leisure time".

Murambi is now a memorial. Some of the mass graves have been excavated. The classrooms are filled with human remains. In some cases the corpses have been preserved in quicklime and retain tufts of hair and recognisable features. In the classrooms lie thousands of white skeletons, sometimes frozen in the positions in which they fell. It is as if a man-made Pompeii had swept over the hill and through the buildings. Some still clutch their rosaries; some of the women were clearly pregnant and skulls bear the marks of the machetes used to hack them down.

It takes a lot of planning to kill thousands of people: orders must be given for roadblocks to be set up; petrol must be requisitioned for the vehicles that transport the killers up the hill; grenades and ammunition must be distributed to the soldiers; avid killers need to be praised, and slackers exhorted to work harder and to kill faster. Genocide is a vast criminal enterprise.

It is alleged that some of the criminals responsible for what happened at Murambi have visited the United Kingdom, and that some are still here. However, due to what the former Director of Public Prosecutions has called jurisdictional gaps—these have been identified in your Lordships' House today—amounting to impunity gaps, suspects from Rwanda and some other modern atrocities cannot be prosecuted here. Those are gaps that we need to fill.

The accusations that I have mentioned are included in the original ruling by the Westminster Magistrates' Court. These accusations are also repeated in documents filed at the international criminal tribunal for Rwanda—disturbing documents which I have with me here in the Chamber and which I have read.

Ten days ago I chaired a public lecture in Liverpool given by Luis Moreno-Ocampo, the Prosecutor for the International Criminal Court. He emphasised the need for jurisdictions like our own to strengthen our domestic provisions in hunting down the perpetrators of genocide and crimes against humanity. This Bill gives us the chance to accede to that request and to ensure that we are no safe haven for those who would avoid prosecution. Like the War Crimes Act, it would not turn Britain into a global court, but neither would it allow these islands to be used as a bolthole for men such as those who orchestrated events at Murambi.

Photo of Lord Joffe Lord Joffe Labour 8:32 pm, 18th May 2009

My Lords, I should like to follow the Minister's cautionary advice that the Bill is not the place to introduce a debate on assisted dying. I understand and agree with that advice, but as the Bill includes clauses dealing with assisted dying and seeks to change the law on diminished responsibility to the detriment of mercy killers, I will touch on Clauses 42 and 49.

I had intended to raise the issue of protecting individuals who assist their loved ones to travel to countries where assisted dying is lawful in order to end their suffering by ending their lives. However, the noble and learned Lord, Lord Falconer, the noble Lords, Lord Lester and Lord Taverne, the noble Baroness, Lady Jay, and others have spoken so eloquently on this issue that I have nothing to add and simply associate myself with their proposals and views. I had also intended to talk about the proposed changes to the law on murder. However, having listened to the incisive and brilliant speech of the noble and learned Lord, Lord Lloyd, I have very little to add but thought that I would touch on Clause 42, which provides that the only sentence the courts can impose on mercy killers charged with murder is life imprisonment. However, the noble Lord, Lord Goodhart, has convincingly covered that point. Accordingly, I will be very brief.

I underline the injustice and disporportionality of imposing the same punishment on a mercy killer driven by compassion and acting at the request of the terminally ill patient as on a murderer who has killed for gain. How they can possibly both be liable for the same sentence strikes me as a grave injustice. The Ministry of Justice's consultation paper states in relation to the suicide clause:

"Our aim is to ensure that the law in this area is just, effective and up-to-date, and produces outcomes which command public confidence".

It is difficult to understand how mandatory life sentences for mercy killers can be considered just. It is even more difficult to understand how the Government can believe that the Bill's outcomes will command public confidence when opinion surveys consistently show that 80 per cent of the population are in favour of assisted dying and when two Lord Chief Justices, including the current Lord Chief Justice, a previous Director of Public Prosecutions, the Bar Council, the Law Society, Liberty and Justice all support the Law Commission's recommendation that before changing the law, extensive consultation needs to be undertaken. Will the Minister outline the reasons for not following the Law Commission's recommendations?

Photo of Lord Dholakia Lord Dholakia Deputy Leader in the House of Lords, Spokesperson for Communities and Local Government 8:35 pm, 18th May 2009

My Lords, we all agree that this is a wide-ranging Bill. At this stage, I will avoid the temptation to speak on various aspects of the proposed legislation. Many noble Lords have concentrated on specific provisions and I shall follow the same practice. I will concentrate my remarks on Part 4, particularly Clauses 104 to 122, which establish a new Sentencing Council for England and Wales.

This provision should help to build on the work of the current Sentencing Guidelines Council in achieving greater consistency in sentencing. I listened to the noble Lord, Lord Elystan-Morgan, with great care, but I will put a different point of view on this subject. Consistency of approach in sentencing is important in order that justice should be done and seen to be done. If two offenders who have committed a similar offence and have similar culpability appear before two different courts and receive a significantly different sentence, this disparity undermines public confidence in the fairness of the criminal justice process. It also discredits the judicial process.

It is particularly important that minority-ethnic communities should have confidence that there are no racial disparities in sentencing, and that offenders from different ethnic groups receive sentences which are consistent and governed by guidelines which minimise the scope for unconscious racial bias. I ask the Minister to ensure a proper system of monitoring to ensure that unconscious racial bias has no place in sentencing decisions.

As the Minister has said, the government reforms are based on the findings of an expert working group chaired by Lord Justice Gage. The working group sensibly ruled out excessively rigid options, such as in some American systems, in which guidelines consist of numerical grids from which courts must take their sentences. The Gage working group rightly considered that these systems do not allow sentencers enough scope to depart from the guidelines—for example, to reflect on matters of personal mitigation. Instead, it recommended a system which is similar in many ways to the current Sentencing Guidelines Council, with four main differences, which I will spell out.

The first difference is that there will only be one body—the new Sentencing Council—instead of two as now, the Sentencing Advisory Panel and the Sentencing Guidelines Council. This is a sensible move. At present, outside experts and organisations are consulted three times over the same set of guidelines, first by the Sentencing Advisory Panel, secondly by the Sentencing Guidelines Council, and thirdly by the Justice Select Committee in another place, which also scrutinises the draft legislation. Combining two bodies into one should help streamline the process and enable guidelines to be produced in a shorter timeframe.

Secondly, when it produces guidelines, the Sentencing Council will also produce a resource assessment of their likely impact on prison places and the resources of the probation service. This again I welcome. There is little sense in devising guidelines which could have a significant impact on the need for prison places or probation resources without any assessment of this impact. I cannot think of any other body issuing guidelines which would be allowed to do so. The Bill does not say that the guidelines have to fit within the currently available number of prison places; it simply says that the council must publish an assessment of the demand for prison places which the guidelines will produce. This will enable the Government to plan and allocate resources accordingly and will enable expert bodies commenting on the draft guidelines to do so in the knowledge of the resource implications. I hope that this significant move will assist in relieving the pressure on the Prison Service. More importantly, some of us who took part in the Question for Short Debate of the noble Lord, Lord Ramsbotham, last Thursday expressed serious concern about the probation service, and I trust that there are indicators established to work out the resource implications on this service.

Thirdly, the Sentencing Council will be required to monitor the impact of its guidelines on sentencing practice and publish information on the sentencing patterns of different courts. This proposal is also welcome. Indeed, it is elementary common sense that any organisation or body issuing guidelines should monitor their subsequent impact. It will help the Sentencing Council in framing future guidelines to know whether its past guidance has had the results it intended, or whether there have instead been unforeseen or unintended consequences. Publishing information on the sentencing patterns of different courts will help to demonstrate how far the council's guidance is achieving the aim of consistency of approach.

Fourthly, there will be a different statutory test governing cases in which courts depart from the guidelines. At present, courts have to consider sentencing guidelines and give reasons if they depart from them. Clause 111 requires courts to follow the guidelines,

"unless the court is satisfied that it would be contrary to the interests of justice to do so".

Some critics of the Bill have suggested that this is too restrictive a test, but in my view it is entirely proper that a court departing from the guidelines should have to show that this is in the interests of justice. What other good reason could there be for passing a sentence different from the guidelines than that this is necessary in the interests of justice? I therefore welcome the provisions for the new Sentencing Council.

However, there is one strange omission in the types of experience which will be sought when recruiting members to the council. It will have eight judicial members and six lay members. Schedule 13 sets out a number of areas in which the lay members will have experience. These are criminal defence, criminal prosecution, policing, sentencing policy and the administration of justice, the promotion of the welfare of victims of crime, academic study or research relating to criminal law or criminology, and the use of statistics. This is a logical list of areas in which lay members of the Sentencing Council might be expected to have expertise. However, the schedule does not include any mention of experience in the rehabilitation of offenders. This seems a strange omission, in view of the requirement in Clause 106 that the Sentencing Council should have regard, among other things, to the effectiveness of different sentences in preventing reoffending. It would surely, therefore, be helpful for the council to have input from a member or members with practical experience of preventing reoffending by rehabilitating offenders. I give notice that I will move an amendment to Schedule 13 to rectify this omission, unless of course the Minister takes steps to rectify this in or before Committee.

With this caveat, I welcome the proposals for a Sentencing Council as a logical development of the current Sentencing Guidelines Council's excellent work to promote greater consistency in sentencing. We shall of course monitor the outcomes in due course. They will determine if our confidence in these clauses is justified.

Photo of Baroness Emerton Baroness Emerton Crossbench 8:44 pm, 18th May 2009

My Lords, like other noble Lords, I would like to speak on one small but none the less important part of this Bill, referred to in Sections 49 to 51, which seek to amend the Suicide Act for England and Wales and the Criminal Justice Act for Northern Ireland. These sections are designed to update the two laws in such a way as to outlaw internet websites that promote or encourage suicides. I am sure I speak for the whole House in condemning such unwholesome websites—they may well have been a factor in recent spates of suicides among young people—and in supporting the Government's decision to tackle them. The subject of assisted suicide is a live one in the media at the moment, and there are those who wish to see it legalised for certain categories of people, such as those who are terminally ill or have chronic and degenerative conditions. As has already been referred to in your Lordships' House this afternoon, we have debated this subject at length on three occasions during the past six years but have not been persuaded that a change in the law has to be made.

The question of whether assisted suicide should be legalised is complex and controversial and, I suggest, not fully understood. I believe that this House has made its views firmly known, almost exactly three years ago to this day. Assisted suicide is far too important and complex an issue to be passed into law through an amendment to a Bill such as this which addresses a wide range of issues, and in which the Government's proposals to amend the Suicide Act comprise just three clauses out of over 150. I hope therefore that the House will agree that it could not contemplate such a serious change in the law simply as a side issue to other legislation.

There is one argument that the House may hear from those who want to see this Bill amended to legalise assisted suicide on which I feel I should comment. It has been suggested that there is a difference between malicious encouragement of suicide and compassionate assistance with it and that, while encouragement should be outlawed, assistance should not. This is, as I am sure the House will recognise, a wholly spurious argument. Yes, of course there is a difference between maliciously egging someone on to commit suicide and helping someone to do so who has asked for assistance in compassionate circumstances. But these are the extreme fringes of the spectrum. Most people who might seek assistance with suicide are in the grey area in between, and they are the ones who would be put at risk by an amendment designed to give licence for assisted suicide to a small minority of highly resolute people. The law is there primarily to protect vulnerable people from abuse—people who might seek assistance with suicide not because it is what they want, but as a result of pressures either from others or, more often, from within themselves.

In any case, legalising assistance with suicide is tantamount to encouraging it. If Parliament were to say that encouraging suicide should be against the law but assisting it in certain cases should be legal, we would in effect be discouraging it for most people but encouraging it for others. What sort of message would that send from this House to seriously ill and other vulnerable people? I hope that your Lordships' House therefore will support the Government's amendments and resist any attempts to amend them further to allow assistance with suicide.

Photo of Viscount Craigavon Viscount Craigavon Crossbench 8:48 pm, 18th May 2009

My Lords, I would like to focus on the small but important part of the Bill relating to the circumstances of assisting suicide. I support what has already been said, in particular by the noble Lords, Lord Goodhart and Lord Joffe, about the need further to clarify the legal position of those who might be compassionately assisting in this country the death of a terminally ill, suffering, competent adult as against those who might maliciously encourage suicide. I support an amendment fully to emphasise and reflect that crucial difference in law.

My main point here is to comment on the well publicised position of those who now accompany the terminally ill to Switzerland. I do not shy away from reminding the House again of the widely accepted opinion polls that show that over 80 per cent of the population would support a change in the law on assisted dying. The stories of those taking the effort and expense to go and be accompanied to Dignitas in Switzerland are a tangible and urgent reminder to us that something needs to be done.

Last week I was very much influenced listening to the excellent Radio 4 discussion programme "The Law and Death", which has been mentioned by the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Jay. The programme was attempting to elucidate the current state of the law and where it might be going, with a former senior Law Lord, the noble and learned Lord, Lord Bingham of Cornhill, and the former DPP, Sir Kenneth Macdonald, among others. The DPP reminded us that in his tenure there were over 90 Dignitas cases where, after examining the evidence as well as assessing the public interest, there were no prosecutions. Perhaps I may quote, as the noble Lord, Lord Taverne, did, the noble and learned Lord, Lord Bingham, the former Lord Chief Justice and former Master of the Rolls. He said:

"I think we are approaching a point at which the law does not match the expectations of reasonable people".

He went on to say that,

"if in nearly 100 cases the DPP is saying I do not think it is in the public interest to prosecute, it is getting awfully close to a situation where Parliament ought to be saying, well, we had better have some rules".

He said that one or two cases might be an anomaly but 100 is something that we should be seriously paying attention to.

I am following the noble Baroness, Lady Emerton, whom I think of as somehow representing the Royal College of Nursing—but perhaps she no longer does. A few days ago, the Times published a very helpful article about what the Royal College of Nursing was doing to put discussion of assisted dying into some sort of framework for nurses. It is apparently consulting its membership on whether to reconsider its stance, perhaps from being officially opposed to a stance of neutrality. From having in the recent past a monolithic opinion, it is recognising, as other royal colleges realistically and helpfully have, the diversity of opinion among its membership. It is also apparently responding to requests from patients who anxiously ask nurses about the possibilities open to them. These are some aspects about which nurses are at present forbidden from discussing with them. The reality is that the public, the media and Parliament are discussing assisted dying but nurses often simply cannot do so with their patients.

The recent debates in Parliament on assisted dying, partly promoted by the noble Lord, Lord Joffe, have moved the public discussion on, as has the steady work of Dignity in Dying and many of those who, however desperately ill, have courageously assented to their predicament being publicised. As the noble and learned Lord, Lord Falconer, said, as this Bill is re-enacting the suicide law, this quite properly could be the opportunity to make one change in this area. As he said, it would help to identify safeguards and would end uncertainty for those accompanying friends and relatives, as against leaving it to the discretion of one person, the DPP, however wise. The noble Baroness, Lady Jay, simply called this "a lack of clarity".

To the extent that Parliament fails to deal with this aspect, we are in danger of bringing ourselves into disrepute. One might ask how many more people have to take this passage to Switzerland before we stir ourselves to do something about this. This can and should be the occasion for this fairly minor change.

The Minister said in opening that we should wait for a Private Member's Bill to sort this out as part of some whole, perfect solution. How long will we have to wait for that? He said that this was too important to be slipped into a passing Bill. In my opinion it is too important to be left out of this opportunity. The benighted comfort of the status quo should not be acceptable to us. Do we want to imagine that we might have the same law, unamended, for the next five or 10 years—quite a possibility—and to guess how many more desperate people will have to make the journey to Switzerland? As the noble and learned Lord, Lord Bingham, was trying to tell us, these numbers are a symptom and a sign that Parliament should act. How much further prompting do we need? I look forward to supporting an amendment at the next stage that can help the terminally ill and their relatives and friends in these tragic circumstances.

P

Viscount Craigavon,
I have been a member of the nursing profession for 47yrs and am appalled that we have reached a stage when we seemingly cannot be satisfied with the excellent palliative care available in making the last months/weeks/days of those with terminal illness comfortable and painfree. There is no need for any person to suffer pain in terminal illness because of the excellent medication procedures that are implemented, not to hasten death, but to ease a sometimes uncomfortable symptom. Secondly,I am equally appalled at this surruptitious move to insinuate that members of the nursing profession are being denied some form of 'right' by not discussing how to end lives with patients.

Submitted by Paula Hagan

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Liberal Democrat 8:54 pm, 18th May 2009

My Lords, at Third Reading in the House of Commons, much concern was expressed at the lack of adequate time available to debate large parts of the Bill. It therefore falls to this House, despite our being a revising Chamber, to rectify some of those omissions. If the range and number of speakers tonight is anything to go by, that will be the case.

It has now become routine that Home Office or Ministry of Justice Bills consist of a mix of myriad elements that have little to do with each other and in which there is a lack of overall consistency or vision in what is trying to be achieved. Despite all the legislation of the past 10 years, we are still living with a criminal justice system that is full of contradictions, resulting inevitably in public uncertainty, a lack of understanding and—ultimately and dangerously—a lack of confidence or trust in what the system is achieving for the public good.

Thus, for example, it is stated policy that prison should be used only as a last resort for the most dangerous, violent and prolific offenders—quite rightly. At the same time, we have seen an unprecedented rise in custodial sentences, due in part to legislative changes, with more than half of those prisoners serving short sentences of six months or less, who of course do not fit the "dangerous, prolific or violent" profile. The inevitable result is prison overcrowding at unacceptable levels and an equally unacceptable prison building programme.

Simultaneously, the Government's stated policy is that alternatives to custody should be available for all but that group of offenders for whom prison is appropriate—violent, dangerous or prolific—but they have failed to give the probation service and the voluntary or private sector adequate resources to make that essential policy a properly functioning reality. Instead of creating a system in which offenders are less likely to reoffend and society is safer through the greater use of community penalties, we have one in which more people go to prison, more people reoffend and, unsurprisingly, the citizen does not feel any safer or more confident.

The ultimate irony is that, while the prison population has risen by 30 per cent during the past 10 years to an unprecedented 83,000, the number of people found guilty by the courts has remained almost the same, having risen by about 2 per cent. What has changed is that we are sending more people to prison for lesser offences and for longer—we are tougher, at an enormous human, social and financial cost.

The aspirations for the Bill, as expressed in the Ministry of Justice Explanatory Notes, are for,

"more effective, transparent and responsive justice", expressed with,

"clarity, fairness and effectiveness".

Until our system of justice is far more coherent and consistent, and one which the community knows about and understands—for that is the basis of confidence and trust, is it not?—we will continue to suffer from a crisis of confidence and trust in our criminal justice system.

At this stage, I must add my wholehearted endorsement and relief at the sensible decision by the Lord Chancellor to remove Clauses 11 and 12, where provision was made for secret inquests, which has been spoken to so eloquently by many noble Lords, including my noble colleagues. The confidence that we all need—not to speak of the needs of the bereaved families—will now not be compromised, as it would have been.

I concentrate my few remarks on what is a potentially significant part of the Bill in the opportunities that it offers: that on sentencing and the proposed Sentencing Council. Given the unprecedented explosion in the numbers of the prison population during the past 10 years against a background of almost unchanged numbers of people being found guilty by the courts, it offers the possibility of change. The way in which the Sentencing Advisory Panel and Sentencing Guidelines Council operated turned out to be a rather slow and cumbersome process. We must have a framework in which stability and consistency in sentencing can be achieved, without overly constraining the discretion of sentencers, while also commanding the understanding and confidence of the public. The Bill's proposals offer a start to achieving this. I emphasise that it is a start because there is a lot of work to be done.

We are very glad that the sentencing grid, as proposed by the noble Lord, Lord Carter, has been rejected and that the current proposal in the Bill broadly reflects, instead, the conclusions of the working group under Lord Justice Gage, who had looked closely at the Carter proposals. The wording of the Bill is that the courts must have regard to the guidelines, but there is also the important caveat,

"unless the court is satisfied that it would be contrary to the interests of justice to do so".

I am well aware that this is causing real concern for sentencers and that it will require careful scrutiny. However, it is a serious attempt to balance the need for consistency with the need for judicial discretion. It will be important to ensure that it never becomes an exercise in predicting prison numbers, or that its emphasis is perceived to be on the punitive, as opposed to the restorative and rehabilitative, element of sentencing.

The Bill also includes a duty for the council to monitor both the operation and effect of its guidelines. That could and should show how effective the council is in promoting consistency and the extent to which its guidelines are being followed, which must then inform its practices. The proposed duties on the council to carry out impact assessments on the resource implications of court decisions on the prison, probation and youth justice services on one hand, and the potential impact of policy and legislative proposals on the other, are very important and could have far-reaching implications. That could highlight the crying need for better resourcing for probation and other services if sentencers are to see their decisions realised, as they should expect, instead of the lack of available drug or alcohol treatment services, a domestic violence course or a mental health treatment programme, which is routinely the case today.

The publication of the potential impact of policy and legislative proposals will mean that Parliament is in a far better position to make informed decisions before it gives its assent to any further legislative changes. This could, for example, have been the case with the indeterminate sentence for public protection, about which my noble friend Lord Goodhart spoke at impressive length. Indeterminate sentencing has resulted in a surge of over 5,000 prisoners in the population, with the majority left in a penal black hole, unable to earn their release for lack of the necessary courses to do so. This is an absolute lack of justice. The council's role in informing and educating the sentencing process could serve the interests of better decisions and better justice. It is, indeed, devoutly to be wished.

However, there are at least two features that are crucially lacking from this part of the Bill, which seriously undermines the potential for positive change. The first, as was referred to by my noble friend Lord Dholakia, is an overarching and explicit commitment to the prevention of reoffending in the Bill. It is, after all, a key element in the purposes of sentencing and should inform all our thinking, planning and practice. All the evidence shows that the Government's policy of community sentencing really cuts crime at far lower cost to the taxpayer and with greater benefits to the victims, the community and, of course, the offenders. A key element in its success is that sentencers are regularly given the opportunity to visit and see what is currently available to them at any one time in their particular areas when they are considering their disposals. It will make all the difference to those kinds of decisions. I have seen the effect of this, having chaired the Rethinking Crime and Punishment initiative over the past seven years. We ran demonstration projects in various parts of the country and found that the initiative had an effect on many of the sentencers that was almost an epiphany.

The other gap in the Bill is a duty on the Sentencing Guidelines Council to engage with local communities and to inform, educate and consult them about its role and what is happening. This should be a core function of the council: one that underpins its work. The Bill talks about the council "promoting awareness", which is fine but inadequate. A specific public information and consultative role must be included. The public need a trusted authoritative source to counter misinformation about sentencing and to explain how and why the system works. A role of this kind has the potential to put right and close the gap in public confidence and trust. This is at the core of the aims of the Bill. It gives rise to questions such as what the composition of the council should be, but its importance cannot be emphasised enough.

I have already spoken for 11 minutes and know that we are probably all desperate to get home. I am now winding up my remarks and I hope noble Lords will agree that it is beyond anyone to do justice to the range and depth of the contributions this evening. This has been an extraordinarily important and wide-ranging debate and I have hopes that the good parts of the Bill will be enhanced and developed by the very long processes of Committee and beyond.

We have heard a great deal about the enormous amount of legislative work that we do in this House—the noble and learned Lord, Lord Lloyd, talked forcefully about the amount of legislation that we have already had—but at the same time there have been calls around the House for separate Bills on a whole range of issues that are already in this Bill. They are unfortunately mutually exclusive. Suicide, genocide and murder are three themes that have come up again and again in incredibly important debates. I hope that these and other important elements of the Bill will now be put in their place and given the sort of scrutiny that will do them all justice. On that note, I thank everyone on behalf of my part of the House for their extraordinarily interesting contributions.

Photo of Lord Henley Lord Henley Shadow Minister, Justice 9:08 pm, 18th May 2009

My Lords, the noble Baroness, Lady Linklater, says that it will be rather difficult for anyone to wind up a debate such as this. I look forward to the noble Lord, Lord Bach, trying to do so in the time available after I have sat down.

I start by being very kind to the noble Lord and congratulating him first on introducing this Bill—or, rather, this whole series of Bills—to the House, and then sitting through the entire debate. I remind the House that he is the only person in this House who has sat through every single speech—good luck to him—and who will have to wind it up at the end. Those are the last congratulations that I will offer him.

I will not speak much to the merits of the Bill, because my noble friend Lord Kingsland set out our views—to the extent that he could on such a wide-ranging Bill—at the beginning of the debate. I shall concentrate on the process by which the Bill has been brought to us, because that has been of considerable concern to a large number of Peers who have spoken. This Bill is like the Criminal Justice and Immigration Bill—that farce of a Bill that we had last year and that was first introduced in another place. Half its clauses were added to it on Report in another place, and then half of those clauses were removed in Committee in this place. We now have a Bill of equal size this year before this House—a Bill which, as many noble Lords have said, could be quite a number of different Bills. There are nine parts, 166 sections and 21 schedules. I think it was the former Lord Chancellor, the noble and learned Lord, Lord Falconer, who implied that Lord Chancellors were judged by their weight, and by that I mean the weight of legislation they put through—

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour

I did not imply it, my Lords, I said it.

Photo of Lord Henley Lord Henley Shadow Minister, Justice

My Lords, the noble and learned Lord and the noble Lord, Lord Bach, would find it considerably better if they passed fewer Bills, took more time over them and tried to get them right.

I will offer some advice to the noble Lord. Many years ago, in the long distant past when I was a Minister in the Department for Social Security, we used to push through an all-singing and dancing social security Bill every year. Politically it was very difficult—legislatively it was equally bad. It did not allow Parliament time to scrutinise these Bills adequately and after a while we found it a great advantage to break these things up and have a number of discrete Bills. That allowed both Houses more time to spend on the process and also allowed them to get it right. It was good for Parliament, it was good for legislation and it was good for the statute book. No one can say that something like this is good for the statute book, particularly when it is the fourth, fifth or sixth—I cannot remember which—criminal justice Bill we have seen in the past four, five or six years.

The first question I would like to put to the Minister is how many Bills have there been. Just to get things in perspective, will he remind us how many parts of all of those Bills have never even brought into effect? Here we are labouring away on legislation and half of these Bills, or large hunks of them, are not brought into effect. I would be grateful if the Minister would take advice on that and offer us some help.

If the Minister wants a sign of the size of this Bill and the number of subjects it covers, it was brought home to us very firmly by the noble Lord, Lord Thomas of Gresford; at about the 16 or 17 minutes into his speech he reminded the House that he had not even got beyond Part 2. There were Parts 3 to 9 still to go. He quite rightly left many of those to his noble friends.

I will stick to the process of the Bill and would like to make a few points, starting with Part 1 on coroners. Despite the fact that the Minister made his opening speech very well, I will give the figures to underline the weakness of this Falconer method, if we can call it that, of legislative steamrollers. The noble Lord devoted four minutes to Part 1; Part 2 got another four minutes but large parts of Part 2, such as infanticide, were never mentioned. Similarly, I do not think we had anything on child pornography and images of children. Part 3 got two minutes. Part 4 on sentencing got three minutes, I think. Part 5 I do not think was mentioned at all, and neither was Part 6 on legal aid. Criminal memoirs had a minute. We had two minutes on Part 8 on data protection, and again nothing on Part 9. I mention this to remind the Minister that we will have to spend quite a considerable time on the various parts of this Bill as it goes through. He might find—or the business managers might—that they have to look quite hard at what gets squeezed out as the Bill goes through the House.

As my noble friend made clear, we broadly support what the Government are doing on Part 1 covering coroners, particularly after we received the letter on Friday that was to ensure that we had seen it in good time for Second Reading—I did not get my copy until Monday—and now that we have heard that Clauses 11 and 12 are to be removed by the Government. Again, to stress how the whole process has gone wrong, it is worth reminding the House, as the noble Lord, Lord Pannick, did, what has happened in the past. Some very similar provisions to Clauses 11 and 12 were introduced without consultation in the Counter-Terrorism Bill and then, after it had gone through another place, they were withdrawn by the Government. Now, a year or so later, they are brought into this Bill, again by the Government and, again, there has been no consultation. Vast amounts of time have been wasted in another place—it could have debated other clauses, but due to its procedures it did not even manage to do that—because the Government were not prepared to consult on this issue in advance. They insisted on going through with it and then they withdrew it.

No doubt the noble Lord will tell us that the Government are a listening Government and that they listened to what we all said, which is why they responded. This is a pretty chaotic way of legislating. If the noble Lord had consulted properly, we might have been in a better position with this Bill. There might not have been the necessity for the Government to withdraw Clauses 11 and 12—quite rightly, we believe—at this late stage after they had been debated to such a considerable extent. Why they withdrew them, I do not know, particularly as they will probably bring them back in another Bill in due course. Perhaps the noble Lord could advise us on whether there were concerns about the timing of the Bill—or was it just because the Government noticed the number of speakers who had put their names down on Friday when the letter came out?

Part 2 deals with murder, infanticide, suicide and partial defence to murder. As has been made clear by the noble Lord, Lord Thomas, my noble friend Lord Kingsland and many others, this should be part of a much wider reform of the whole offence of murder. Again, the Government should take note of the desirability of consultation on these matters. The House should be reminded of what the noble and learned Lord, Lord Lloyd of Berwick, said when he commented on the Law Commission's report on murder. He reminded us that the Government completely ignored the first 64 pages, I think it was, of that report, while admitting that the law was a mess.

The noble and learned Lord suggested that the Government should take the whole of Part 2 away, think again and come forward with proper proposals, having taken proper note of what the Law Commission has to say. I do not know whether the Government will take note of what the noble and learned Lord has said or even what the Law Commission said in its report. But I will offer a little bet to the noble and learned Lord that at some stage during the course of this Bill, we will see either this section or another large section mysteriously and rapidly removed by the Government as they try to speed up its passage when they get into problems trying to get it through in good time, bearing in mind the vast range of subjects with which it deals. I do not know whether the noble and learned Lord would want to take up that bet, but if he does not, I will have it with the noble Lord, Lord Bach, instead. But I leave that to him.

Part 2 further deals with suicide and assisted dying recommendations. A range of noble Lords remarked that this should be discussed discretely as a separate Bill—if I remember correctly, the Government suggested a Private Member's Bill—and that is the correct approach. I would go further and agree with the noble Baroness, Lady Williams. This is a matter on which the Government should take the lead. They should offer a Bill on which there should be a free vote, certainly on this side of the House, but also on all other sides of the House. The Government should provide the appropriate time to deal with a matter of this sort.

We accept the necessity to include provisions about the images of children, to which my noble friend Lord Kingsland referred. But again we heard nothing from the noble Lord when he opened the Bill as to what these clauses will do. It would be right and proper for him to address that matter when he speaks at the end.

I move on to Clause 61, "Hatred against persons on grounds of sexual orientation". This was the amendment moved in the Criminal Justice and Immigration Bill of last year by my noble friend Lord Waddington, an amendment that was discussed at some length in this House and then voted on on a free vote. My noble friend Lord Kingsland—and I think he got some agreement on this matter from the noble Lord, Lord Neill—suggested that it was unconstitutional, or, if not unconstitutional, jolly nearly unconstitutional, to overturn it sometimes only 11 months after it was passed. It might be that, it might not be that; I accept the advice of my noble friend. To me, it is just plain shoddy. That amendment went through this House, the Government agreed to it purely because they had worries about timing on the whole of that Bill, and they signed up to it. I think it behoves the Government therefore, to stick with that and I hope that the Government will accept that something that has been passed by this House and by another place—that has been agreed to—should stay in this Bill and I again await comments from the noble Lord in due course.

I do not want to take up too much time on the next few sections that the noble Lord dealt with, such as Part 3 on criminal evidence, Part 4 on sentencing and the miscellaneous criminal justice provisions in Part 5, but I note everything that has been said. I move on to Part 7 dealing with criminal memoirs. The noble Baroness, Lady Miller of Chilthorne Domer, welcomed it but thought that it had been sloppily drafted. It was the noble Lord, Lord Borrie, though, who probably got it right when he said he had considerable doubts as to whether it was needed at all. I have to say, and I shall put it to the noble Lord, Lord Bach, that this again is something we see repeatedly from the Government—what one might call legislative grandstanding. There are complaints that something is happening, so the Government feel that they must legislate, whether it is necessary or not. As the noble Lord, Lord Borrie, has told us, there are already adequate remedies in place. So we are doing something that the Government insist is necessary, but we advise is not necessary. Again, I suggest to the noble Lord that he properly takes the advice of his noble friend and quietly withdraws that section of the Bill. It might speed up its passage through this House.

I could go on, but I will not, because at this stage all of us would be grateful to hear from the noble Lord the answers to a great many of the questions that have been put to him. I will end again with a plea. He suggested that when we were in government, we produced massive Bills. Well, we actually did learn and realised that smaller, more discrete Bills very often were a more effective way of legislating and produced better law. I do hope the Government can learn that in the short time they have left available to them.

Photo of Lord Bach Lord Bach Government Whip, Parliamentary Under-Secretary, Ministry of Justice, Government Whip, The Parliamentary Under-Secretary of State for Justice 9:23 pm, 18th May 2009

My Lords, this has by and large been a constructive debate and I thank all noble Lords who have taken part. It has been a debate of real quality and I thank noble Lords for giving up their time.

I also welcome the broad measure of support from all sides of the House for a number of the individual provisions in the Bill. The poor Bill itself has suffered a bit. It has been described in various ways today: as a dog's breakfast, a ragbag, a Christmas tree, as elephantine, as a whole series of Bills and as a myriad mix—and those were only the nice phrases about it. I most liked the description by, I think, the noble Lord, Lord Elystan-Morgan, who said it was "compendious". I am not quite sure I understand what that means, but I like the sound of it.

I am pleased, too, that the need to change the law on coroners has been largely accepted. It is something that has long been wanted. We need to give the system a new lease of life, give bereaved families a stronger voice, and provide a more effective, transparent and responsive service generally. I apologise to the noble Lord, Lord Henley, for making my opening speech much too short for his liking; I shall try to make up for it now if I possibly can. But I should gently remind him, when he criticises us for introducing too many Bills, of some interesting figures. Between May 1997 and May 2007, 56 pieces of Home Office legislation were passed. It might be said that that number is far too many, but it compares with 68 Acts in the period between 1990 and 1997, including 19 Bills in the pre-election Session of 1996-97. Perhaps the noble Lord has some experience of what he speaks and I have to listen to what he says.

It is not surprising with such a wide-ranging Bill that a number of noble Lords have taken severe issue with some of the content. Even where there is general support, noble Lords quite properly want to probe the detail. I welcome that and look forward, not with completely unmixed views, to a detailed scrutiny of the Bill in Committee. I agree with the noble Lord, Lord Henley, that we will be here for a long time, but we will get through the Bill. A large number of points have been made and I have a limited time in which to speak, so I shall do my best to answer as many questions as I can. Before I indulge in that, the noble Lord, Lord Goodlad, referred to the report of his committee, the Constitution Committee of this House. It was published only last week. We welcome the committee's contribution to the debate on the provisions in respect of certified coroners' investigations and assessment notices. We are studying the findings and will respond as quickly as we can.

I now move straight to Part 1 on coroners. Many noble Lords have welcomed the decision to withdraw Clauses 11 and 12, although I must say that I agree with my noble friend Lady Dean when she said that she was at the same time a little sorry. No doubt noble Lords were looking forward to quite a bit of fun on those clauses, which dealt with the need to protect sensitive material that may be relevant to a coroner's investigation. As I made clear in my opening speech and others have reminded me, if I ever were to forget, although we are withdrawing the clauses, the issue has not gone away. The noble Lord, Lord Pannick, suggested that rather than establishing an inquiry under the Inquiries Act, we should lift the bar on the admissibility of intercept evidence. I should make the position clear on the Inquiries Act, although no doubt we will debate the issue in some detail. I said that we would consider using the Act in the rare cases where these matters arise, but in all of them, rare as they may be, we will, if possible, try to work under the existing system. That is our first preference.

The noble Lord, Lord Kingsland, made a series of points about coroners and asked whether the Government will bring forward an amendment to constrain the ambit of an inquiry established to investigate the circumstances of a death. Our immediate response is to say no, we do not believe that an amendment is necessary. The terms of reference of the inquiry itself under the Act will limit the inquiry accordingly. He mentioned the duty of care in the "Marchioness" case. Clause 34 enables the Chancellor to issue statutory guidance setting out how the coroner system will operate for those who come to use it. It is intended that a charter for the bereaved will be the very first guidance issued, and a copy was published with this Bill. It sets out in detail the standards of service the bereaved can expect and clarify how they can challenge coroners' decisions.

The noble Lord also asked about the budget of the Chief Coroner. He or she will have a budget, be supported by one or more deputies, and have an office with staff. Again, he or she will be funded to administer a new appeals system, administer training for coroners and their staff, introduce standards and best practice, and introduce the charter for the bereaved.

As to the important point of legal aid, raised first by the noble Lord, Lord Thomas of Gresford, and mentioned by the noble Baronesses, Lady Miller and Lady Fookes, our case is that the purpose of an inquest is actually to establish the facts. They are not adversarial proceedings in the same way as a trial, with a prosecution and defence, and coroners have ensured and will continue to ensure that the process is thorough and impartial. They are under a duty to assist families and ensure that their questions are answered.

We are not persuaded that legal aid needs to be routinely made available for coroners' inquests. The ministry has provided legal aid in every inquest into the deaths of service personnel where the Legal Services Commission has recommended it, and I understand that it recommended it in every case where it has been sought. Since January 2003 it has been granted in 16 such inquests. However, legal aid is not currently available as a matter of course in other inquests and, as the Legal Aid Minister, with a very, very tight budget indeed, frankly I cannot see that changing in the immediate future.

The noble Baronesses, Lady Williams and Lady Finlay, asked about death certification and the independence of medical examiners. Of course it is vital that the public are confident that medical examiners will carry out an independent scrutiny of a medical certificate of the cause of the death. The Bill attempts to ensure this independence in two ways: first, by specifying that PCTs in England and local health boards in Wales can have no role in relation to the way in which medical examiners exercise their professional judgements as medical practitioners; and, secondly, by enabling regulations to specify what is required to demonstrate independence.

We think that two protocols will be required. A national protocol—prepared in consultation with the medical royal colleges, the BMA and others—will set standards on the minimal level of scrutiny for medical examiners. A second local protocol agreed by the PCT in consultation with the area's senior coroner will set out the minimum distance—including any relationships with the deceased or the attending doctor—between the medical examiner and the dead. Our approach will ensure, we hope, that medical examiners are both properly independent and able to influence clinical governance arrangements where necessary.

There were many other questions on coroners—one in particular was raised by the noble Lords, Lord Imbert and Lord Ramsbotham. Their complaint was about why we had not established a national coroner service. We considered very carefully whether a national coroners' organisation should be established, but we concluded that retraining and local ownership, while creating national leadership, was the best model. We think this package of reforms will ensure that the service provided by coroners will be more consistent through standards set by the Chief Coroner. We also believe that measures in the Bill will reduce coroners' workload and will therefore release resources so they can be directed on providing services to the bereaved. At the same time we think it important to keep the service as a local one, ensuring it can remain responsive to the needs of local people.

Moving on, I want to say a word about military inquests. The noble and gallant Lord, Lord Craig, the noble Baroness, Lady Fookes, and others were concerned about the Bill not providing for a specialist military coroner. I reassure them that despite this the Bill will ensure that the current expertise in military inquests will be retained and built on. First, the new Chief Coroner will issue guidance and set standards in relation to certain types of death. The draft charter for the bereaved states that we would expect that to include standards in relation to deaths on active service, and the guidance will ensure that all coroners are well equipped to investigate military deaths. If a particularly complex case arose that required specific skills or experience, the Chief Coroner would be able to transfer that case to the best qualified coroner. Greater flexibility in the new system should also, we think, minimise the backlogs that may occur at present and enable a case to be transferred to a coroner area nearer to a bereaved family than the place to which the body was repatriated. This will significantly benefit bereaved service families. My noble friend Lady Dean, I think, was concerned about this point, as well as others.

The noble and gallant Lord, Lord Craig, asked when the Secretary of State would think it appropriate for a death to be investigated in Scotland. If the deceased is a member of the Regular or Reserve Forces who is on active service overseas or preparing or training for it or is a civilian subject to service discipline accompanying such a person, and the deceased's family lives in Scotland, that is when it will be appropriate. At present, a death in these circumstances will be subject to an inquest, but if an investigation is able to take place in Scotland instead of an inquest it will obviously have beneficial effects, in that the deceased's family will not have to travel to England.

Will medical examiners have specific qualifications? Will the Chief Coroner have a medical adviser? These questions were mentioned by various noble Lords, such as my noble friend Lord Turnberg and the noble Lord, Lord Alderdice. A detailed training curriculum has been developed by an intercollegiate group established by the Academy of Medical Royal Colleges, led by the Royal College of Pathologists, about which a particular question was asked. Medical practitioners will be assessed following completion of the training and, if successful, accredited to act as medical examiners. Practice as a medical examiner will also be reflected by the arrangements for the revalidation and relicensing of medical practitioners when introduced by the General Medical Council.

Medical support to the Chief Coroner will be provided by a national medical adviser. He or she will advise and provide leadership on all medically related matters. I think that answers that question.

The Bill allows coroners to request an MRI scan as a non-invasive post mortem. Research is continuing, but there are issues about cost and the availability of equipment.

I shall move rapidly on to Part 2, which deals with homicide. I heard clearly the points made by the noble and learned Lord, Lord Lloyd of Berwick, on this issue; he queried our staged approach to the reform of the law of murder, as did other noble Lords. The Law Commission's recommendations for this important and sensitive area are indeed ambitious and wide-ranging, but we think it is better to stage our reforms to get them right. We will be looking in due course at the commission's other recommendations, particularly those for a new structure for homicide and complicity to murder, in the light of the effect of changes to the partial defences. I need to make it clear to the noble and learned Lord that the murder provisions in the Bill were debated in Commons Committee but, unfortunately, not on Commons Report.

We will undoubtedly refer to the partial defences in due course. I hope the House will forgive me if I quote some outsiders who seem, at least from the terms of these quotations, to be in favour of what we are attempting to do. On the question of provocation, the organisation Liberty, which is not often known for its support of what the Government intend to do, said this:

"With respect to the first of these"— that is, killing in response to the fear of serious violence—

"Liberty welcomes the proposal as a reasonable response to some of the current problems arising under the provocation response".

That was in October last year. The Law Commission itself said in the document Murder, Manslaughter and Infanticide in November 2006, after the important House of Lords decision that the noble and learned Lord referred to, which I think is called Holley, that,

"the partial defences remain misleading, out-of-date, unfit for purpose or all of these".

So there are various views, but I know that the noble and learned Lord's view and that of the noble and learned Lord, Lord Mayhew, is that we should be doing all this as one; I understand that.

I turn to provocation and the issues around sexual infidelity. The fact that the thing done or said constituted sexual infidelity is to be disregarded by the Bill. However, it may be taken into account in so far as it also amounts to something other than sexual infidelity. We will come back to these issues in due course.

The noble Lord, Lord Joffe, asked me why we are not using reform of partial defence and diminished responsibility as an opportunity to update the law relating to mercy killers. The Law Commission, in its report, made clear its view that the use of the defence of diminished responsibility should not be stretched so far that it becomes a back-door route to a partial excuse for caring but rational mercy killers. We agree with that position.

I come to Clause 61, which is, of course, a matter we will debate in full, and no doubt vote on. I think I am entitled to point to the fact that the House of Commons has voted twice by huge majorities in favour of what we are proposing in this Bill. That is something that, at least, this House has to take notice of, even if it decides to continue the attitude it took last year. I do not think there is any constitutional outrage at all in coming back this year with a proposition we had last year. It is quite clear why we did not come back to this House on it last year. The noble Lord will argue his case, no doubt with great passion as he did last year, but this matter should be decided on the issue itself. It is not a constitutional issue as such.

As far as the Sentencing Council is concerned, some very interesting comments were made. I am very grateful for the great support shown to it, and I think that is a fair adjective, by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, whose speech—if I may say so—was outstanding, in the course of a pretty outstanding debate. Their support is much appreciated. I know their concerns about this, which were expressed very clearly by the noble Lord, Lord Elystan-Morgan. Though I often agree with him, I think that on this occasion, he was slightly exaggerating the dangers involved.

The Bill makes clear that the court must follow the guidelines laid down by the Sentencing Council unless the court is satisfied that it would be contrary to the interests of justice to do so. That is stronger than the present duty on sentences, which is simply to have regard to guidelines. However, that enhanced duty is based on the Gage Commission's view that there should be a presumption that guidelines drawn up by a body with a judicial majority and chair should be applied to ensure greater consistency in sentencing.

We recognise, of course, as did the working group, that there has to be discretion to do justice in the individual case. That is why the Bill provides that, even where an offence is sub-divided into categories, the sentencer can sentence within the entire range of the guidelines. That means that, in the Sentencing Guidelines Council's current robbery guidelines, the sentence can be from one to 12 years; and even then, the sentencer can still depart from the offence range if it is in the interests of justice to do so. "In the interests of justice" is a very important expression. Again, we will debate sentencing views in due course.

The noble Baroness, Lady Stern, asked me how many new offences this Bill created. I am glad to be able to tell her that it creates 15 new offences. Eight are wholly new, and the remaining seven update offences in the Coroners Act 1988. We will have a debate about the number of imprisonable offences that have been invented, as she argued, by this Government. I think that even she would agree that some of those, in some of the fields where we have changed the law, were undoubtedly right and proper to create.

Many noble Lords spoke about genocide, war crimes and crimes against humanity—all of them were in favour of movement on this issue. We know that the noble Lord, Lord Carlile, intends to table an amendment in Committee to make the offences of genocide, war crimes and crimes against humanity retrospective. We remain keen to ensure that no one escapes justice for crimes as devastating as those in question, so graphically described by noble Lords, particularly the noble, Lord Alton. The International Criminal Court Act 2001 already allows for UK residents or nationals to be prosecuted here for such crimes irrespective of where they were committed, but this does not apply to offences committed prior to 2001. As my right honourable friend the Lord Chancellor said in another place, we are actively considering this issue, and I have no doubt that we shall have an interesting debate in Committee on this very important area of concern.

We heard many passionate speeches on assisted suicide, either for a change in the law or for maintaining the law as it is. I was asked whether there would be a free vote on the Government's side. The answer is yes. There will be a free vote on an amendment of the kind that my noble friend Lady Jay proposed. However, I must repeat the observation that I made many hours ago in my opening speech; namely, that we do not think this Bill is the appropriate vehicle in which to pursue a change in the law on this sensitive issue. Nevertheless, I look forward to listening to the debates in Committee.

We heard some interesting speeches on criminal memoirs. I think there will be interesting debates on that, too. I make it clear that this is not an attack on freedom of speech or on legitimate publishing businesses. We are not banning criminals from writing about their acts, no matter how ghastly they may have been. We are just saying that if a criminal publishes material about his crimes or an act that can cause distress to victims and their families, the court will have the power—if it wants to use it—to order any benefit derived from the publication to be repaid. I emphasise that the courts will have a wide discretion on whether to impose an order.

The noble Lord, Lord Lester, was delighted with what we had done with regard to conditional fee agreements. We are also pleased as we think that it is the right course and that it will be popular. I noted what the noble Lord said about sedition. This issue arose in the other place. We accept that there is a case for the abolition of these rarely used offences. We need to be confident that they can be abolished without further ado. It is open to the noble Lord to table a suitable amendment for Committee which would allow noble Lords an opportunity to debate the issue. I assure him that the Government would welcome such a debate, but I say no more about it tonight. Indeed, I say no more about anything tonight. I have gone on for longer than I meant to. Once again, I thank all noble Lords for the part they have played in a most illuminating and interesting debate and look forward to seeing them in Committee.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench

My Lords, before the Minister sits down, I raised a point about active service and using the definition in the Armed Forces Act which relates solely to desertion, which seems a very inappropriate definition to be using in the context of this Bill.

Photo of Lord Bach Lord Bach Government Whip, Parliamentary Under-Secretary, Ministry of Justice, Government Whip, The Parliamentary Under-Secretary of State for Justice

My Lords, I remember the noble and gallant Lord making that point. I hope that I may write to him with a fuller reply to it.

Bill read a second time and committed to a Committee of the Whole House.

House adjourned at 9.49 pm.