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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

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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

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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 tail 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

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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.

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4.06 pm

Baroness D'Souza: 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

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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 are 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.

4.11 pm

The Lord Bishop of Southwell and Nottingham: 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

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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.

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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.

4.17 pm

Lord Falconer of Thoroton: 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.

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