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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,

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,

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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.

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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.

4.26 pm

Lord Waddington: 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,

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.

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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,

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

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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.

4.36 pm

Baroness Williams of Crosby: My Lords, one of my great concerns—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 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 where, at Second Reading, there is precisely one minute for every 20 clauses of the Bill, to deal with it in the way that Parliament should. I begin by saying that I 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

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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”.—[Official Report, 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.

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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.

4.46 pm

Baroness Finlay of Llandaff: 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

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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.

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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.

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