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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. 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 such as 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 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

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place. There have now been many occasions—I cannot purport a list and have not done the research necessary for one—but 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.

6.57 pm

Lord Turnberg: 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

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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.

7.02 pm

Lord Ramsbotham: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

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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

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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.

7.10 pm

Lord Mayhew of Twysden: 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

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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

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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.

7.19 pm

Lord Goodhart: 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.

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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”.

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