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In this new landscape, we must look at the old institutions and reform them. The UN, the Bretton Woods establishment, the World Trade Organisation, the non-proliferation treaty regime, NATO and the European Union-somehow, out of all of this, a fresh, global will must be distilled and sewn together. Perhaps we should start with the democracies-including ours-which are not healthy at the moment; then with the international institutions of the 20th century that all need revising; and then find the true consensus needed to protect all mankind. Just a thought.

9.02 pm

Baroness Kinnock of Holyhead: My Lords, there can be few Houses in any of the Parliaments of the world in which a new Member is permitted to speak on the first day of membership-and from the Front Bench at that. Clearly, the famed generosity of this House begins at the moment of entry. I am very grateful for that, and for the warm welcome that has been given to me by the staff, by long-valued friends in the House and by new acquaintances in all parts of the House.

In my previous life in the European Parliament and elsewhere, I often had reason to admire the work of the House, particularly the Committee reports produced by your Lordships on issues related to the area of work that I was engaged in-foreign affairs, international development policies, trade policy and the European Union. The quality of the short debate this evening testifies to the experience, expertise and commitment that your Lordships bring to all these vital matters.

I therefore express gratitude to the noble Lord, Lord Jay, for his kind words, for initiating this debate and for the opportunity to highlight the crucial significance

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of the concept of the responsibility to protect. The noble Lord, particularly through his work as the chair of Merlin, is well aware of the need for speedy and effective responses to emergencies.

I think that we all have seared on our memory the tragedies of Srebrenica, which was mentioned, of Rwanda and of Darfur. Now we grapple with how to deal with the tragic plight of civilians today in Somalia, in Kinshasa in the Democratic Republic of Congo, and in Sri Lanka. My interest in R2P is personal. I was in Rwanda and what was then Zaire in 1994 during the immediate aftermath of the genocide. The memory of those days will stay with me all my life. I have also been to Darfur, to Chad, to south Sudan on a number of occasions, and to the eastern Congo. All the suffering I have seen testifies to the need for us to undertake the shared responsibility, the binding commitment to tackle the structural causes of conflict which include social and economic inequalities, impunity-something that really has not been mentioned-and injustice. I can confirm that the UK Government are fully engaged and indeed were in the vanguard of efforts to ensure that the world summit agreement reached in 2005 included a clear and ground-breaking commitment to R2P. But while we have the tools and the instruments needed to fulfil the responsibility to protect, as the noble Lord, Lord Addington, said, the biggest challenge that remains is how we can make it all work.

First, it is clear that we must strive to create a culture of the responsibility to protect, a culture that is accepted across the world. This is work in progress for our Governments. We have to build confidence in the principle that states have a fundamental responsibility to protect their own populations, and indeed we have to bring clarity and acceptability at the United Nations and European Union level to the concept of the responsibility to protect. Secondly, R2P must be a holistic concept in its development and in its application. Many noble Lords have spoken about the four R2P crimes; those crimes of genocide, war crimes, crimes against humanity and ethnic cleansing. But R2P must not just be about responding to such atrocities. It must relate to conflict prevention, mediation and peace-building. It must include efforts to increase awareness of potential tension, as the noble Lord, Lord Jay, said, and listening and then acting when the alarm bells ring.

Thirdly, we must tackle the misconception that R2P is somehow an initiative of the developed world, one that is being imposed on the south. The concept of non-indifference to crimes, which has been mentioned, was actually in the Constitutive Act of the African Union 2000, long before the UN adopted the responsibility to protect. It was the African Union that took an early lead in responding to the violence in Kenya last year when an estimated 600,000 people were displaced. We must also tackle the misconception that R2P is somehow a justification for military intervention. It is not about imposing solutions on countries from outside. It is about encouraging world leaders, politicians and representatives of civil society to play their own parts. It is as much about responsible sovereignty as it is about intervention. That is what I mean when I talk about the culture of R2P.



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The Government continue to follow closely developments at both the EU and the UN levels in the run-up to the UN General Assembly debate, which I understand is to take place on 20 July. The UK has welcomed the reaffirmed commitment to R2P in the December report on the implementation of the European Security Strategy and the 2007 EU Consensus on Humanitarian Aid. R2P is a priority for the General Assembly, and I am glad to say that the member states of the European Union have confirmed this. Further to those actions, the Government continue to explore how we can ensure that awareness of R2P informs all our work on conflict, on development and on human rights at the domestic level, at the regional level and globally. We will therefore continue to work to secure better and more effective responses to the four R2P crimes and we will support the building of better early warning systems-which is essential-more deployable military and civilian capacity, and more effective regional reaction, particularly from the African Union and from the European Union. All experience tells us that international diplomacy and mediation, and being prepared to use all the tools at our disposal, is how we should proceed.

The Government have welcomed the UN Secretary-General's report, which is generally well balanced and shows a determination to change those words into deeds. We are particularly focused on the UN General Assembly and the resulting opportunity to build a real consensus on the 2005 agreement and secure practical measures related to the implementation of the Secretary-General's report. This task will involve a high level of political commitment for the foreseeable future. The Government understand that and are committed to fulfilling that aim.

Before I finish, I would like to address some of the outstanding issues raised by noble Lords. I would like to congratulate the right reverend Prelate on his maiden speech. It is comforting to have a fellow maiden speaker at this debate. I thank him for what he said.

I am also very interested and supportive of the references to South Sudan made by the noble Lord, Lord Jay. I absolutely agree that the peace agreement is looking very shaky at this time. I met people from South Sudan only last week and there is a great deal of doubt and apprehension about the referendum and about the prospect of an election. There is this terrible uncertainty, which, as the noble Lord says, is something we need to watch very carefully in order to ensure that there is no tipping over into yet more fighting and yet more conflict in a part of Sudan that has suffered so much over so many years.

I agree that R2P has to be at the top of foreign policy. Noble Lords can rely on me to understand this and constantly refer to it. It is also important to say that we are working very hard in the FCO, DfID and the MoD; working together perhaps more effectively, and for the long term, to ensure that we can be more coherent in the work across departments.

My noble friend Lord Parekh talked about the five gaps. I can say very clearly that I will take the appropriate action the noble Lord mentioned and will follow through on his points.



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R2P is not a legal obligation. That is a very important point for us to realise in this debate. It is a moral and a political commitment that we have made. When you use the term "R2P" people often become very defensive in situations of tension. Quite often you can move things forward more effectively if you do not use that vocabulary.

It is very important for us to say that the suspicion about R2P, to which some noble Lords have referred, is something we need to be aware of, conscious of, and respond to appropriately. It is also important to mention that action can be taken, including that in Chapter 7 at UN level, if military intervention is considered to be appropriate and necessary; that is something that we would be looking at.

We have had a fascinating and wide-ranging debate, and I am grateful to noble Lords for their contributions. Everyone in this House, including the Government, is committed to working with the international community, to create what I have referred to as a culture of the responsibility to protect.

Finally, on the need to protect, the aim has to be to give resolute and effective meaning to those words, "never again".

9.14 pm

Lord Jay of Ewelme: My Lords, before the Minister sits down, perhaps I may once again welcome her to this House. I congratulate her on a truly impressive maiden speech, combining real experience and deep personal commitment to the issues we have been discussing. The noble Baroness brings great experience of European issues in their broadest sense to this House and, perhaps even more importantly, a real understanding of Europe and great experience of another Parliament. As her speech has shown tonight, that will be of huge value to your Lordships' House, and I am sure that others will join me in saying how much we look forward to further contributions in the months ahead.

Noble Lords: Hear, hear.

Coroners and Justice Bill

Committee (4th Day) (Continued)

9.15 pm

Amendment 161

Moved by Baroness Murphy

161: After Clause 43, insert the following new Clause-

"Diminished responsibility: children

Section 34 of the Crime and Disorder Act 1998 (c. 37) (abolition of rebuttable presumption that a child is doli incapax) is repealed."

Baroness Murphy: I move Amendment 161 with a degree of pessimism. We have already referred to the reversed provisions of doli incapax today, and I will be very brief. I was hoping that this would be debated before the other amendment on children, but I throw it in anyway and offer it for discussion.



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This amendment reverses the Crime and Disorder Act 1998 which, in turn, reversed the previous law that children under the age of 10 could not be held criminally responsible for a crime. The law with respect to children who kill is very different in England from that of most other European countries. It is not just that the age of criminal responsibility, at 10 years old, is exceptionally low, but also that the doctrine of doli incapax, or being incapable of crime, was abolished in 1998. Moreover, the distinction between manslaughter and murder means that those convicted of the latter are subject to a mandatory penalty of indefinite detention, with its duration assessed by the Home Secretary and not by the courts or the Parole Board. This means that children who have not yet reached puberty are treated as if they were adults but their handling puts them at particular disadvantage. There was a very celebrated case that preceded this law.

There are several reasons why this seems quite unreasonable to me. First, there is extensive evidence which we have talked about before that the important development changes continue throughout the teenage years. To reduce this to the question of whether children know right from wrong is highly misleading. Even pre-school children appreciate this distinction, although they approach it more in terms of fear of detection and the punishment that will follow rather than from internal justice principles and concern for the victims of wrong acts.

During early adolescence, young people's thinking tends to become more abstract, multi-dimensional and self-reflective. In addition, they are able to generate more alternatives in their decision-making. There is a marked increase in emotional introspection, together with a greater tendency to look back with regret and look ahead with apprehension. The transition to more adult modes of thinking does not emerge, as we have already heard, from any single age, but it is clear that it is very far from complete at age 10. As with any aspect of development, there are marked individual differences in how children achieve maturity.

The second consideration is that homicide is rather different from the rest of juvenile delinquency in that it has not shown the same marked rise over the past half century or so. Nevertheless, homicide and serious juvenile delinquency have much in common.

Thirdly, children who commit homicide are likely to be seriously psychologically disturbed-again, as we have discussed-and often have experience of very serious adversity. This means that they will usually require residential care in order to receive the intensive psychological treatment and rehabilitation that they urgently require. However, it also means, very positively, that rehabilitation is a realisable goal.

As with any other criminal behaviour, there is a crucial need to balance the protection of society and the rehabilitation needs of the offender. Changes in the law should be viewed in terms of meeting both. That is, the change should not automatically mean that children receive a reduced sentence; rather, the argument is that they should be treated with respect to the differences between children and adults. This means that if we are to fail with our previous amendments-although I hope that we shall support the noble Lord,

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Lord Carlile of Berriew, and his colleagues if they come back with their amendment on Report-there would be a need to reintroduce doli incapax in that it is suggested that it would be reasonable to assume a lack of capacity below the age of 14 but to reverse the assumption over that age.

In either instance, it should be open to the courts to decide in the case of that particular child with that particular background and with that particular crime that there was capacity below the age of 14 or that there was not over it. It is essential that careful consideration be given to the state of the offender before release, but this needs to be done with the benefit of expert advice from the Parole Board-I am afraid that the Executive would not be my choice. It would also be helpful for juveniles to have one offence of homicide, removing the distinction between manslaughter and murder with the implication that follows from that. I beg to move that we reinstate an amendment for doli incapax.

Lord Carlile of Berriew: In the light of the Government's refusal to recognise the concept of developmental immaturity in relation to children, the lack of a transitional stage in a child's development as a potential criminal between the ages of 10 and 14 is a matter of great concern to these Benches. Set at 10 years of age, the threshold for criminal responsibility in England and Wales is one of the lowest in western Europe. It is 13 in France, 14 in Germany and 16 in Spain. A number of those countries also have something akin to doli incapax in force as well as a higher age of criminal responsibility. Indeed, it is perhaps shocking that the age of criminal responsibility in this country is 10, whereas for males in Iran it is 14 years and nine months. Horrifyingly, for females in Iran, it is eight-and-a-half years, but perhaps we need not trouble with that further at this stage.

Our age of criminal responsibility is set so low as to cause concern that, without a special category of developmental immaturity, there is a risk of unjust conviction of those who simply are not of a capacity fully to understand what they are doing or have done. Even the United Nations Committee on the Rights of the Child has expressed concern about the United Kingdom's law of juvenile criminal responsibility. That committee said that it might be incompatible with Articles 37 and 40 of the UN Convention on the Rights of the Child to have our age of criminal responsibility set so low, leading to a recommendation that,

That comment was made by the UN before the abolition of doli incapax. It would seem therefore odd that the abolition of doli incapax has not been accompanied by raising the statutory age of criminal responsibility.

As a result of all the legislation that has been enacted so far, in particular the Crime and Disorder Act, and the proposed legislation we are considering tonight, all children of 10 years of age and more will be presumed and treated as having the same moral culpability and ability to conduct themselves as an adult. We illustrated in the last debate that it could be even worse than that-that children could be in a less advantaged position than adults.



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In the case of C (a minor) v DPP, Lord Lowry, quoted from elsewhere,

"No civilised society regards children as accountable for their actions to the same extent as adults".

Without the measures which the noble Baroness has been urging, or something like them-she has put it broadly and I wholly support her-we will be left as a society which regards children not only as accountable for their actions to the same extent as adults but we shall leave children as presumed to be accountable to the same extent as adults for actions for which in fact, as any good psychiatrist will tell us, they are not actually fully accountable. There is a real danger that if we pursue this legislation to the letter in its current draft form there will be a severe injustice to children which it will be left somehow for the courts to sort out.

In the penultimate debate, the noble and learned Baroness, the Attorney-General, suggested that what was being proposed by the noble and learned Lord, Lord Lloyd, was a fudge. If the Government will not meet these problems, as described by the noble Baroness, Lady Murphy, the fudge will simply be handed on to the courts. The Court of Appeal will have to produce the fudge in order to safeguard the interests of children. That should not be the task of the Court of Appeal; it should be the role of this Parliament and this House to produce legislation that meets the apprehended justice of cases like those we have in mind.

Baroness Butler-Sloss: This is a further attempt to encourage the Government to recognise that there is a real difference between children and adults in criminal offences. Of particular importance is the debate before dinner about developmental immaturity. There is now another effort by the noble Baroness, Lady Murphy, to attack the same point. It is particularly important that the Government remember that the four Children's Commissioners of the United Kingdom were extremely critical of the approach towards the criminalisation of children, and young children in particular, in this country. The United Nations Committee on the Rights of the Child was also very critical. It praised the Government for some improvements but it remained extremely critical.

There is a danger that the Government of the day, and I suspect all Governments, are overinfluenced by the popular press and particularly certain sections of the press that demonise children and treat all children who are old enough to go to court and who commit really serious offences as evil. The Government should be giving a lead and not responding to the soundbites of the newspapers in relation to the way in which children are to be treated in the same way as adults.

The Earl of Listowel: I regret that I cannot support the letter of these amendments, but I certainly support their spirit. I will reflect for a moment on the context. Your Lordships will recall the UNICEF report which put us at the bottom of the developed world in terms of child welfare. That was followed by the report A Good Childhood by the Children's Society, which again highlighted how poorly we perform in many ways for our children in this country. Subsequently there was a

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report from York University which put us in a league slightly above Romania, Lithuania and other countries with regard to our children.

One thinks about the way in which we treat our social workers, who are supposed to protect children, the low status they have been provided and how they have been treated as pariahs-or the staff at children's homes, who work with the most vulnerable and challenging children. There are members of staff paid the same as or less than staff at supermarket checkouts. We should think about the context in which this takes place.

I commend all the excellent work that the Government have done in the past 10 years in seeking to remedy some of these situations. However, if we look at ourselves in the mirror, we have to say that somewhere or other we have rather lost our way in terms of prioritising the welfare of our children. That may be another reason to take this opportunity to look extremely carefully and think again about how children are treated in the courts. Perhaps we should be open-minded and think that, given the cultural context in which we operate, here is an opportunity to make more modern how we treat children in our courts.

9.30 pm

Lord Patel: I wholly support the amendment and with a greater degree of optimism than my noble friend Lady Murphy-my optimism being that the Minister, after listening to the powerful arguments being put forward, will listen and think again and that the Government may back this amendment.

It cannot be right logically to think that children of 10 can be treated the same as adults for their behaviour and be subjected therefore to the same justice system or criminal system. The noble Baroness has a lot more experience in this matter than I have, as an obstetrician, and she is right in saying that children of that age may be severely psychologically disturbed and require more care rather than trial in the courts. So I hope that the Minister will back the amendment.

Lord Alderdice: I had not intended to speak in this debate, because many of the things that relate to it were discussed during the debate just before the dinner hour. However, the more I thought about the Attorney-General's response, the more troubled I became by the message that I got from it. Below the age of 18-and no differentiation seemed to be made between those who were 10 and 11 and those who were 17 or 18-there was, first, no persuasion that there was a problem or even a potential problem of injustice here. The difficulty that was adduced was that we should think about teenagers who produce knives and stab somebody and whether they should not be held responsible. We have to think seriously about the problems, but the idea that we should somehow hold 10 and 11 year-olds as responsible in the same kind of way as people in their twenties, thirties, forties or fifties seems to me extraordinary.


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