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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.

5.50 pm

Baroness O'Cathain: 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.

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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,

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.

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

Baroness O'Cathain: 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.

5.54 pm

Lord Lester of Herne Hill: 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

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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,

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

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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.

6.06 pm

Lord Lloyd of Berwick: 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

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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,

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

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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.

6.15 pm

Lord Howarth of Newport: 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

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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.

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