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The school is a collection of long, single-storey brick buildings, situated on the top of a hill, with 66 classrooms. At the beginning of the genocide, many Tutsi Rwandans

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

In my report I described how:

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

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

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

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

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

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

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8.32 pm

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

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

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

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

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

8.35 pm

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

This provision should help to build on the work of the current Sentencing Guidelines Council in achieving greater consistency in sentencing. I listened to the

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

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

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

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

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

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Thursday expressed serious concern about the probation service, and I trust that there are indicators established to work out the resource implications on this service.

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

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

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

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

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

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8.44 pm

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

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

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

In any case, legalising assistance with suicide is tantamount to encouraging it. If Parliament were to say that encouraging suicide should be against the law but assisting it in certain cases should be legal, we would in effect be discouraging it for most people but encouraging it for others. What sort of message would that send from this House to seriously ill and other

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vulnerable people? I hope that your Lordships’ House therefore will support the Government’s amendments and resist any attempts to amend them further to allow assistance with suicide.

8.48 pm

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

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

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

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

He went on to say that,

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

I am following the noble Baroness, Lady Emerton, whom I think of as somehow representing the Royal College of Nursing—but perhaps she no longer does. A few days ago, the Times published a very helpful article about what the Royal College of Nursing was doing to put discussion of assisted dying into some sort of framework for nurses. It is apparently consulting its membership on whether to reconsider its stance, perhaps from being officially opposed to a stance of neutrality. From having in the recent past a monolithic

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opinion, it is recognising, as other royal colleges realistically and helpfully have, the diversity of opinion among its membership. It is also apparently responding to requests from patients who anxiously ask nurses about the possibilities open to them. These are some aspects about which nurses are at present forbidden from discussing with them. The reality is that the public, the media and Parliament are discussing assisted dying but nurses often simply cannot do so with their patients.

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

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

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

8.54 pm

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

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

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inevitably in public uncertainty, a lack of understanding and—ultimately and dangerously—a lack of confidence or trust in what the system is achieving for the public good.

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

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

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