Previous Section Back to Table of Contents Lords Hansard Home Page

Last year, we set out our strategy for improving the provision of public toilets. Local authorities have a key role to play. The particular campaign in Changing Places is focused on large public buildings. We need to continue to engage with it in whatever way we can. I think that so far 85 facilities are open up and down the country, which is far too few to meet the needs, but another 11 are currently being planned.

The Lord Bishop of Exeter: My Lords, I declare an interest. In Exeter, the local branch of Mencap, of which my wife is patron, has managed to secure a grant of £42,000 to fund the equipment needed in three Changing Places but has difficulty in finding partners to make this provision a reality. At the same time, we have churches willing to provide sites but current planning, listed building and conservation area legislation often inhibits the installations of the facilities required. Particularly given the response to an earlier question, do the Government have any plans to review whether, as regards listed buildings, the balance between the needs of disabled people and the concerns of the conservation and amenity societies is in fact about right?

Lord McKenzie of Luton: My Lords, the right reverend Prelate raised a very important point. I am not aware of any current review looking specifically at that issue. It is certainly a matter that I will take away. In a number of circumstances, listed building status does not necessarily inhibit a particular provision. However, it can make it more difficult, and more expensive, to install that.

Viscount Tenby: My Lords, the Minister will be aware that the disability equality duty enjoins all public bodies to give equality of opportunity. In the light of that, what steps will the Government take to ensure that local authorities live up to these requirements, especially with regard to providing proper toilet facilities, as mentioned in Changing Places, for those with severe disabilities?

7 July 2009 : Column 566

Lord McKenzie of Luton: My Lords, it is primarily a matter for local authorities because they have the power under the Public Health Act 1936 to provide facilities. Obviously, they have to be compliant with the DDA and other equality provisions. The strategic plan that we published last year set out how local authorities can best go about their duties, and the amount of variability and flexibility they have, partly in relation to charging. This is the best route to make progress on this matter.

Baroness Hamwee: My Lords, the noble Lord mentioned public buildings, and of course this is an important public building. While it is not directly within his responsibility, will he use his good offices to urge that we become on a par with the Scottish Parliament and Welsh Assembly, which have Changing Places facilities? As he clearly understands that the Question is about profoundly and multiply disabled people who have particular needs, can he tell the House what work the Government are doing to collect data in order to understand what are probably the large numbers of people with such needs?

Lord McKenzie of Luton: My Lords, as the noble Baroness identified, the first point is fundamentally a matter for the House authorities. I made inquiries on what provision there was within our buildings. I think that there are no Changing Places facilities; perhaps there are more routine disabled toilet facilities, but probably not enough. So far as data collection is concerned, the discussions that took place last year in relation to the strategy indicated the complexity around all that and the provision that there is generally. Part of it is provided by local authorities and part within commercial facilities, whether supermarkets or pubs. We are not sure that imposing some duty on local authorities in particular to drive the collection of data is the best use of resources and time.

Gaza: Operation "Cast Lead"


3.01 pm

Asked By Baroness Tonge

The Minister of State, Foreign and Commonwealth Office (Lord Malloch-Brown): My Lords, we are concerned by the findings of the recent Amnesty report. We take seriously any allegations of violations of international humanitarian law made by credible organisations during the Gaza conflict. We have consistently stated that they should be properly investigated. In that regard, we urge all parties involved to co-operate with the Human Rights Council fact-finding mission led by Justice Richard Goldstone, and will carefully consider the findings of that report once released.

7 July 2009 : Column 567

Baroness Tonge: My Lords, I thank the Minister for his reply. I am sure that he would agree that Amnesty International's report was very balanced, acknowledging war crimes on both sides. However, the scale and intensity of Israel's attack on Gaza was unprecedented. Not many of the 1,400 Palestinians killed were killed as a result of collateral damage, the report said; they were killed by high-precision weapons targeting civilians, many of them children. What action-I mean action, not talking any longer-will the Government take with our partners in the European Union to impose arms embargoes and trade sanctions on Israel to ensure that it complies with the UN fact-finding mission headed by Richard Goldstone and stops disobeying international law?

Lord Malloch-Brown: My Lords, Justice Goldstone has now been able to visit Gaza for two rounds of hearings, without the co-operation of Israel, unfortunately; he has therefore had to enter by the Rafah crossing. The importance of Justice Goldstone's inquiry is that it is an official one, authorised and voted for by the Human Rights Council, so we continue to believe that action should follow that report, not precede it.

Lord Campbell-Savours: My Lords, is the sea blockade of Gaza justified?

Lord Malloch-Brown: My Lords, my noble friend has truly surprised me with that question. I am not sure whether he is referring to the ship that was trying to enter, with some British nationals on it who have just been returned to the UK. In general, the blockade of Gaza is not justified. We are down to less than 20 per cent of the normal trucks available to enter the territory-I am now talking land vehicles-and there has been a huge cut in oil and other basic commodities necessary for the life of people in Gaza.

Lord Trimble: My Lords, did the report by Amnesty International comment on the tactics of Hamas? Colonel Richard Kemp, formerly of the British Army, recently said, describing them:

"Not only was Hamas's military capability deliberately positioned behind the human shield of the civilian population ... They also ordered, forced when necessary, men, women and children, from their own population to stay put in places they knew were about to be attacked by the IDF".

Lord Malloch-Brown: My Lords, the Amnesty report did not actually agree with that; it concluded that there had not been actions of that kind. Again, that is why we need to wait for the official report of Judge Goldstone. He has deliberately set out to investigate allegations on both sides. We need a balanced report before action follows.

Lord Wright of Richmond: My Lords, I draw the attention of the Minister to a very moving article in yesterday's Guardian, describing the extent to which the life and access for Palestinians in other parts of the Occupied Territories are being eroded by continuing expansion of settlements. What action are the British Government taking to support President Obama's very firm insistence that all expansion of settlements should stop immediately?

7 July 2009 : Column 568

Lord Malloch-Brown: My Lords, my right honourable friend the Foreign Secretary has again made it clear in evidence that he gave to the Foreign Affairs Committee, as well as in recent questions in the other place, that we continue to remain utterly opposed to settlement activity and fully support the US position on that. He has also, in meetings with Israeli Ministers-most recently yesterday with the Defence Minister, Ehud Barak-again reconfirmed the British position, which is that we are opposed to any expansion of settlements.

Lord Grocott: My Lords, does my noble friend agree that on all occasions of this sort, with claim and counterclaim of responsibility and degrees of suffering, the one constant throughout has been the unremitting suffering and humiliation of the Palestinian people of Gaza, and that their suffering, as measured by the most recent conflict includes, on most estimates, more than 400 children killed? Does he agree with me in the calmness of a debate of this sort, that, sooner or later, the international community-whatever its misgivings-must engage with the leadership in Gaza, as we have learnt previously in so many conflicts, and that, sooner or later, that kind of discussion has to take place?

Lord Malloch-Brown: My Lords, the lead in negotiations at the moment clearly rests with the United States and the mission of Senator George Mitchell. The United States is fully committed to a two-state solution. It is our role to try to encourage that process and support the US in any way we can with contacts with all parties in the region; but it is very much up to the United States to determine when it is appropriate to speak to the political leadership in Gaza.

Consolidated Fund (Appropriation) (No.2) Bill

First Reading

3.08 pm

The Bill was brought from the Commons, endorsed as a money Bill, and read a first time.

National Assembly for Wales (Legislative Competence) (Social Welfare) Order 2009

National Assembly for Wales (Legislative Competence) (Exceptions to Matters) Order 2009

Hallmarking Act 1973 (Application to Palladium) Order 2009

Legislative Reform (Limited Partnerships) Order 2009

Motion to Refer to Grand Committee

7 July 2009 : Column 569

3.08 pm

Moved By Lord Hunt of Kings Heath

Motion agreed.

Business of the House: Access to EU Documents Report

Access to EU Documents Report

Motion to Refer to Grand Committee

3.08 pm

Moved By Lord Hunt of Kings Heath

Motion agreed.

European Communities (Definition of Treaties) (Cariforum Economic Partnership Agreement) Order 2009

European Communities (Definition of Treaties) (Cariforum Economic Partnership Agreement) Order 2009
16 Report Joint Committee Statutory Instruments

Motion to Approve

3.08 pm

Moved By Lord Young of Norwood Green

Motion agreed.

Companies' Remuneration Reports Bill [HL]

Order of Commitment Discharged

3.09 pm

Moved By Lord Gavron

Lord Gavron: My Lords, I understand that no amendments have been tabled, and that no noble Lord has indicated a wish to move a manuscript amendment or speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.

Coroners and Justice Bill

Bill Main Page
Copy of the Bill
Explanatory Notes
7th Report from the Delegated Powers Committee
8th Report from the Joint Committee on Human Rights
16th Report from the Joint Committee on Human Rights

Committee (5th Day)

3.10 pm

Amendment 163

Moved by Lord Thomas of Gresford

163: Clause 44, page 28, line 16, leave out paragraphs (a) and (b)

Lord Thomas of Gresford: If the Government had the courage to abolish the mandatory life imprisonment penalty for murder, the next 15 to 20 minutes would be unnecessary. However, in the Privy Council case of the Attorney-General for Jersey v Holley, which represents

7 July 2009 : Column 570

the current law of England and Wales on provocation, argued in March 2005 over three days, the noble and learned Lord, Lord Nicholls, said:

"In expressing their conclusion ... their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts ... Their Lordships share this view. But the law on provocation cannot be reformulated in isolation from a review of the law of homicide as a whole".

What we have before us is a partial tinkering with part of the law of homicide, and not a review of the law of homicide as a whole.

Nine Law Lords sat on that case. The argument raged for three days, and their Lordships divided six to three in the result. The noble and learned Lords, Lord Bingham and Lord Hoffmann, in the minority, said:

"We share the opinion, widely expressed, that the law of homicide stands in urgent need of comprehensive and radical reform".

The noble and learned Lord, Lord Hoffmann, had already observed, in the case of Smith (Morgan), that the concept of provocation has serious legal and moral flaws.

I will take your Lordships back a little. Aberemord, or aberemurdrum-plain and apparent killing-was punishable by death without fine or commutation by a law of King Canute. This was one of the laws re-enacted by Henry I's Charter of Liberties in 1100, with amendments made on the advice of the barons-which is precisely what we are engaged in today.

Murdrum, or murder, was distinguished from the less heinous crimes of manslaughter, or killing by chance medley or chaud medley. These were excusable homicides. Chance medley was the accidental killing of a person in self-defence on a sudden encounter, and chaud medley was the killing of a person in an affray in the heat of blood and while under the influence of passion. The defences of self-defence and provocation developed out of these ancient concepts in the times of Restoration gallantry, when, as the noble and learned Lord, Lord Hoffmann, put it,

In 1707, in a case called Mawgridge, a guest of the Lieutenant of the Tower of London quarrelled with his host over a woman, threw a bottle of wine at his head and ran him through with a sword. The case was described by Chief Justice Holt as being "of great expectation" and was argued before all the judges. The court listed four categories of case which in those days were, "by general consent", allowed to be sufficient provocations. The first was the quarrel which had escalated from words to physical assault-

and if the assaulted party drew his sword and immediately slew the other, it would be "but manslaughter". The second was a quarrel in which a friend of the person assaulted joined in and gave the deadly blow. The third was where someone took the part of a fellow citizen who was being injuriously treated. And the fourth was

7 July 2009 : Column 571

the killing of a man in the act of adultery with one's wife. The reason given was:

I hope that by now the Committee may be beginning to think that the origins of provocation as a defence were just a little dubious. In those days, anger was thought to be right and proper and a killing in hot blood, caused by one of these four provocations, was, in principle, justified; otherwise, it was the gallows. Nineteenth century Victorian judges sought to mitigate the harshness of the ancient common law requiring sentence of death. They generalised the four specific provocations to which I have referred into a broader rule which would permit a provocation to reduce murder to manslaughter, but with a safeguard that whatever the alleged provocation, the response had to be reasonable. In Kirkham, in 1837, Mr Justice Coleridge told the jury that,

The reasonable man made his way onto the stage in the case of Welsh in 1869 in which Mr Justice Keating said that provocation would be sufficient if it were,

So provocation was no longer a justification but an excuse. The question posed was: was the provocation something which temporarily deprived the accused of his reason? Of course, in late Victorian times, no one knew anything about how the mind works or the relationship between emotion and rationality. As the common law developed, in Duffy, in 1949, the gist of the defence was encapsulated by Mr Justice Devlin in a single sentence in his summing up, which was afterwards treated as a classic direction to the jury. He said:

"Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind".

That was the standard direction given to juries in 1949 and thereafter.

The Committee will notice the reference to "acts"-words were not enough, however insulting. So on the recommendation of the Royal Commission on Capital Punishment, which sat from 1949 to 1953, the common law was amended, but not repealed, by Section 3 of the Homicide Act 1957, so that the loss of self-control could be triggered not only by things done but by things said, and not necessarily done or said by the victim. Section 3 said:

"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man".

So we have the concepts of loss of self-control and the standard to be judged against the reasonable man.

Next Section Back to Table of Contents Lords Hansard Home Page